Conditions of the Obligations of the Underwriter. The obligations of the Underwriter to purchase and pay for the Notes on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company and AHFC herein on the Closing Date, to the accuracy of the statements of Company and AHFC officers made pursuant to the provisions hereof, to the performance by the Company and AHFC of their respective obligations hereunder and to the following additional conditions precedent: (a) The Underwriter shall have received a letter, dated the date hereof or the Closing Date, of KPMG LLP, in form and substance satisfactory to the Underwriter and counsel for the Underwriter, confirming that they are independent public accountants within the meaning of the Act and the applicable Rules and Regulations and stating in effect that (i) they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Trust, AHFC and the Company) set forth in the Registration Statement, the Preliminary Prospectus, each Prospectus (and any supplements thereto), agrees with the accounting records of the Trust, AHFC and the Company, excluding any questions of legal interpretation, and (ii) they have performed certain specified procedures with respect to the Receivables and certain static pool data (within the meaning of Item 1105 of Regulation AB under the Act) included on the website listed in the Preliminary Prospectus and the Prospectus. (b) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Underwriter, shall be contemplated by the Commission. (c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in or affecting particularly the business, properties, condition (financial or otherwise) or results of operations of the Company or AHFC which, in the judgment of the Underwriter, materially impairs the investment quality of any Class of the Notes or makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any banking moratorium declared by Federal, California or New York authorities; or (iv) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any substantial national or international calamity or emergency if, in the judgment of the Underwriter, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the Notes. (d) The Underwriter shall have received an opinion of ▇▇▇▇, Forward, ▇▇▇▇▇▇▇▇ & Scripps LLP, special California counsel to the Company and AHFC, or of such other California counsel satisfactory to the Underwriter, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that: (i) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Receivables Purchase Agreement, and to incur its obligations set forth therein. (ii) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Sale and Servicing Agreement, and to incur its obligations set forth therein. (iii) Each of AHFC and the Company has the corporate power and corporate authority to carry on its business as described in the Prospectus. (iv) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, have been duly authorized by all necessary corporate action on the part of AHFC, and each of the Basic Documents to which AHFC is a party has been duly executed and delivered by AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, have been duly authorized by all necessary corporate action on the part of the Company, and each of the Basic Documents to which the Company is a party has been duly executed and delivered by the Company. (v) The direction by the Company to the Indenture Trustee to authenticate the Notes, as set forth in a letter dated as of the Closing Date, and the direction by the Company to the Owner Trustee to execute and deliver to the Indenture Trustee for authentication the Notes, as set forth in a letter dated as of the Closing Date, have been duly authorized by all necessary corporate action on the part of the Company. (vi) The direction by the Company to the Owner Trustee to authenticate and deliver the Certificates, as set forth in a letter dated as of the Closing Date, has been duly authorized by all necessary corporate action on the part of the Company. (vii) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, do not violate any federal or California statute, rule or regulation applicable to AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, do not violate any federal or California statute, rule or regulation applicable to the Company. (viii) Assuming that AHFC follows its standard operating procedures for creating and perfecting security interests in California Financed Vehicles, as described in an Officers’ Certificate executed by AHFC and attached hereto, and relying solely on such Officers’ Certificate with respect to such facts (and AHFC has not informed us that it has not followed, or that it will not continue to follow, its standard operating procedures in connection with the creation and perfection of security interests in the California Financed Vehicles), AHFC has acquired or will acquire a perfected security interest in each California Financed Vehicle that will be prior to any other security interest therein created under Division 9 of the California Uniform Commercial Code. (ix) No filing or other action is necessary to maintain the perfection of the security interest in the California Financed Vehicles created by the California Receivables and acquired by the Company, the Trust or the Indenture Trustee, as applicable. Such counsel may note that unless and until the obligors under the California Receivables receive effective notice of the transfer to the Company, the Trust or the Indenture Trustee (as the case may be) and of the assignment of the rights to payment, such obligors are entitled to make payments to and accept releases and discharges from AHFC, and, for so long as AHFC is named as the legal owner and lienholder on any certificate of title with respect to any California Financed Vehicle, AHFC has the power to release the security interest in such California Financed Vehicle or to make another assignment of such security interest to an assignee that becomes the lienholder named on the related certificate of title, which power may be improperly exercised either through fraud or inadvertence; (x) No consent, approval, authorization or other action by, or filing with, any federal or California governmental authority, or any order or decree, or any modification of any order or decree, from any California court, is required for the execution and delivery by each of AHFC and the Company of each of the Basic Documents to which it is a party or the incurring of its obligations thereunder, or if required, the requisite consent, approval, or authorization has been obtained, the requisite filing has been accomplished, or the requisite action has been taken. (xi) The statements in the Prospectus under the heading “Certain Legal Aspects of the Receivables,” to the extent that they constitute matters of State of California law or State of California legal conclusions, provide a fair and accurate summary in all material respects of such law or conclusions; provided, however, that we express no opinion with respect to statements in the next to last paragraph under the subheading “Consumer Protection Laws,” as to which the Company is receiving an opinion of counsel (from ▇▇▇▇▇▇ ▇▇▇▇, LLP), as described therein. (e) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP, special counsel to the Company and AHFC, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that: (i) each of the Company and AHFC is validly existing and in good standing under the laws of the State of California; (ii) when the Notes have been validly executed, authenticated and delivered in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter pursuant to this Agreement, the Notes will constitute valid and binding obligations of the Trust enforceable in accordance with their terms and entitled to the benefits of the Indenture, except that enforceability thereof may be subject to (a) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (b) general principles of equity regardless of whether such enforceability is considered in a proceeding at law or in equity; (iii) the execution, delivery and performance by each of the Company and AHFC of the Basic Documents to which it is a party will not violate or result in a material breach of any of the terms of or constitute a material default under or (except as contemplated in the Basic Documents) result in the creation of any lien, charge or encumbrance on any property or assets of the Company or AHFC, pursuant to the terms of any indenture, mortgage, deed of trust or other agreement described in an Officer’s Certificate or Certificates and schedules attached to such opinion (collectively, the “Material Agreements”). As to those Material Agreements which by their terms are or may be governed by the laws of a jurisdiction other than New York, such counsel may assume that such Material Agreements are governed by the laws of the State of New York for purposes of such opinion. In addition, and in reliance upon a certificate of AHFC’s Chief Financial Officer or other accounting officer as to compliance with financial covenants, such counsel may exclude from the scope of such opinion any potential violation of financial covenants contained in such Material Agreements; (iv) no consent, approval, authorization or order of, or filing with, any New York or federal governmental entity is required for the execution and delivery by either of the Company or AHFC of the Basic Documents to which it is a party or the performance by either of the Company or AHFC of the transactions contemplated thereby where the failure to make or obtain such consent or approval of, notice to, filing with, or other action by, or take such action would reasonably be expected to have a material adverse effect on the ability of such entity to perform its obligations under the Basic Documents, except for (i) the filing of UCC financing statements, (ii) filings and other actions that may be required pursuant to state securities or blue sky laws, and (iii) those that have already been obtained, made or taken; (v) the execution and delivery by each of the Company and AHFC of the Basic Documents to which it is a party, the consummation of the transactions contemplated thereby and compliance with any of the provisions thereof by each of AHFC and the Company will not violate (i) any of the terms, conditions or provisions of the certificate of incorporation or bylaws of either of AHFC or the Company, each as amended, (ii) any federal or State of New York statute, rule or regulation applicable to AHFC or the Company (other than federal and state securities or blue sky laws, as to which such counsel need express no opinion with respect to this paragraph) or (iii) any judgment, written injunction, decree, order or ruling of any court or governmental authority binding on AHFC or the Company of which such counsel has knowledge; (vi) such counsel has no reason to believe that the Registration Statement or any amendment thereto, as of the date of the Final Prospectus or as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Preliminary Prospectus, together with the pricing information, as of its date, as of the Time of Sale and as of the Closing Date, or the Final Prospectus as of its date or as of the Closing Date, contains or contained any untrue statement of a material fact or omits or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need make no statement or express any opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus, and that for purposes of determining the date of the Preliminary or Final Prospectus, it shall be the date stated on the respective prospectus supplements thereto; (vii) the Registration Statement and each Prospectus complies in all material respects with the requirements of the Act and the rules and regulations promulgated thereunder; and such counsel does not know of any contracts or documents of a character required to be described in the Registration Statement or each Prospectus or to be filed as exhibits to the Registration Statement that are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus; and (viii) assuming that the Receivables are in substantially one of the forms attached to such opinion, the Receivables constitute tangible “chattel paper” within the meaning of the California UCC. (f) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP, special counsel to the Company and AHFC, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that: (i) the Receivables Purchase Agreement creates a valid security interest in favor of the Company in AHFC’s right, title and interest in and to the Receivables transferred to the Company pursuant to the Receivables Purchase Agreement; (ii) the Sale and Servicing Agreement creates a valid security interest in favor of the Trust in the Company’s right, title and interest in and to the Receivables transferred to the Trust pursuant to the Sale and Servicing Agreement; (iii) the Indenture creates a valid security interest in favor of the Indenture Trustee in the Trust’s right, title and interest in and to the Receivables pledged to the Indenture Trustee pursuant to the Indenture; (iv) the filing of the financing statements of Form UCC-1 naming (a) AHFC as debtor in favor of the Company, (b) the Company as debtor in favor of the Trust, and (c) the Trust as debtor in favor of the Indenture Trustee, in the respective offices, will be effective to perfect the security interests described in paragraphs (i), (ii) and (iii) above, and each such security interest will be prior to any security interest in the Receivables of any other creditor of AHFC, the Company or the Trust, respectively; (v) the Trust Agreement is not req
Appears in 2 contracts
Sources: Underwriting Agreement (Honda Auto Receivables 2009-1 Owner Trust), Underwriting Agreement (Honda Auto Receivables 2008-2 Owner Trust)
Conditions of the Obligations of the Underwriter. The obligations of the Underwriter to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company Bank and AHFC herein on the Closing DateSelling Stockholder herein, to the accuracy of the statements of Company and AHFC Bank officers made pursuant to the provisions hereof, to the performance by the Company Bank and AHFC the Selling Stockholder of their respective obligations hereunder and to the following additional conditions precedent:
(a) The Underwriter shall have received a letter, dated the date hereof of delivery thereof (which, if the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, shall be on or prior to the Closing Datedate of this Agreement or, if the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement, shall be prior to the filing of the amendment or post-effective amendment to the registration statement to be filed shortly prior to such Effective Time), of KPMG LLP, in form and substance satisfactory to the Underwriter and counsel for the UnderwriterDeloitte, confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and stating in to the effect that that:
(i) in their opinion the financial statements examined by them and included in the Registration Statements comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations;
(ii) they have performed certain the procedures specified procedures by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 100, Interim Financial Information, on the unaudited financial statements included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii) above, a result reading of the latest available interim financial statements of the Bank, inquiries of officials of the Bank who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements included in the Registration Statements do not comply as to form in all material respects with the applicable accounting requirements of Chilean Superintendency of Banks and Financial Institutions or any material modifications should be made to such unaudited financial statementsfor them to be in conformity with such requirements;
(B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of such letter, there was any decrease in the shareholders’ equity or total assets of the Bank and its consolidated subsidiaries or any increase in the total liabilities of the Bank and its consolidated subsidiaries, as compared with the date of the latest available balance sheet read by such accountants; or
(C) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases in the consolidated net interest revenue, consolidated net operating income or consolidated income before tax of the Bank and its consolidated subsidiaries, as compared with the corresponding period of the previous year and with the period of corresponding length ended the date of the latest income statement included in the Prospectus; except in all cases set forth in clauses B and C above for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and
(iv) they determined have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statements and the General Disclosure Package (in each case to the extent that certain such dollar amounts, percentages and other financial information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information are derived from the general accounting records of the Trust, AHFC Bank and its subsidiaries subject to the Companyinternal controls of the Bank’s accounting system or are derived directly from such records by analysis or computation) set forth in the Registration Statement, the Preliminary Prospectus, each Prospectus (and any supplements thereto), agrees with the results obtained from inquiries, a reading of such general accounting records of the Trustand other procedures specified in such letter and have found such dollar amounts, AHFC percentages and the Companyother financial information to be in agreement with such results, excluding any questions of legal interpretation, and (ii) they have performed certain except as otherwise specified procedures with respect to the Receivables and certain static pool data (within the meaning of Item 1105 of Regulation AB under the Act) included on the website listed in the Preliminary Prospectus and the Prospectussuch letter.
(b) Prior to The Underwriter shall have received a letter, dated the Closing Datedate of delivery thereof (which, no stop order suspending if the effectiveness Effective Time of the Initial Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Underwriter, shall be contemplated by the Commission.
(c) Subsequent is prior to the execution and delivery of this Agreement, there shall not have occurred (i) any changebe on or prior to the date of this Agreement or, or any development or event involving a prospective change, in or affecting particularly if the business, properties, condition (financial or otherwise) or results of operations Effective Time of the Company Initial Registration Statement is subsequent to the execution and delivery of this Agreement, shall be prior to the filing of the amendment or AHFC whichpost-effective amendment to the registration statement to be filed shortly prior to such Effective Time), of PricewaterhouseCoopers, confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and stating to the effect that in their opinion the financial statements examined by them and included in the judgment Registration Statements comply as to form in all material respects with the applicable accounting requirements of the Underwriter, materially impairs Act and the investment quality of any Class of the Notes or makes it impractical or inadvisable to proceed with completion of the public offering or the sale of related published Rules and payment for any Class of the Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any banking moratorium declared by Federal, California or New York authorities; or (iv) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any substantial national or international calamity or emergency if, in the judgment of the Underwriter, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the NotesRegulations.
(dc) The Underwriter shall have received an opinion of ▇▇▇▇, Forward, ▇▇▇▇▇▇▇▇ & Scripps LLP, special California counsel to the Company and AHFC, or of such other California counsel satisfactory to the Underwritera letter, dated the Closing Date and satisfactory in form and substance to date of delivery thereof (which, if the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Receivables Purchase Agreement, and to incur its obligations set forth therein.
(ii) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Sale and Servicing Agreement, and to incur its obligations set forth therein.
(iii) Each of AHFC and the Company has the corporate power and corporate authority to carry on its business as described in the Prospectus.
(iv) The execution and delivery by AHFC of each Effective Time of the Basic Documents to which AHFC Initial Registration Statement is a party, and the incurring by AHFC of the obligations of AHFC thereunder, have been duly authorized by all necessary corporate action on the part of AHFC, and each of the Basic Documents to which AHFC is a party has been duly executed and delivered by AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, have been duly authorized by all necessary corporate action on the part of the Company, and each of the Basic Documents to which the Company is a party has been duly executed and delivered by the Company.
(v) The direction by the Company to the Indenture Trustee to authenticate the Notes, as set forth in a letter dated as of the Closing Date, and the direction by the Company to the Owner Trustee to execute and deliver to the Indenture Trustee for authentication the Notes, as set forth in a letter dated as of the Closing Date, have been duly authorized by all necessary corporate action on the part of the Company.
(vi) The direction by the Company to the Owner Trustee to authenticate and deliver the Certificates, as set forth in a letter dated as of the Closing Date, has been duly authorized by all necessary corporate action on the part of the Company.
(vii) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, do not violate any federal or California statute, rule or regulation applicable to AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, do not violate any federal or California statute, rule or regulation applicable to the Company.
(viii) Assuming that AHFC follows its standard operating procedures for creating and perfecting security interests in California Financed Vehicles, as described in an Officers’ Certificate executed by AHFC and attached hereto, and relying solely on such Officers’ Certificate with respect to such facts (and AHFC has not informed us that it has not followed, or that it will not continue to follow, its standard operating procedures in connection with the creation and perfection of security interests in the California Financed Vehicles), AHFC has acquired or will acquire a perfected security interest in each California Financed Vehicle that will be prior to any other security interest therein created under Division 9 of the California Uniform Commercial Code.
(ix) No filing or other action is necessary to maintain the perfection of the security interest in the California Financed Vehicles created by the California Receivables and acquired by the Company, the Trust or the Indenture Trustee, as applicable. Such counsel may note that unless and until the obligors under the California Receivables receive effective notice of the transfer to the Company, the Trust or the Indenture Trustee (as the case may be) and of the assignment of the rights to payment, such obligors are entitled to make payments to and accept releases and discharges from AHFC, and, for so long as AHFC is named as the legal owner and lienholder on any certificate of title with respect to any California Financed Vehicle, AHFC has the power to release the security interest in such California Financed Vehicle or to make another assignment of such security interest to an assignee that becomes the lienholder named on the related certificate of title, which power may be improperly exercised either through fraud or inadvertence;
(x) No consent, approval, authorization or other action by, or filing with, any federal or California governmental authority, or any order or decree, or any modification of any order or decree, from any California court, is required for the execution and delivery by each of AHFC and the Company of each of the Basic Documents to which it is a party or the incurring of its obligations thereunder, or if required, the requisite consent, approval, or authorization has been obtained, the requisite filing has been accomplished, or the requisite action has been taken.
(xi) The statements in the Prospectus under the heading “Certain Legal Aspects of the Receivables,” to the extent that they constitute matters of State of California law or State of California legal conclusions, provide a fair and accurate summary in all material respects of such law or conclusions; provided, however, that we express no opinion with respect to statements in the next to last paragraph under the subheading “Consumer Protection Laws,” as to which the Company is receiving an opinion of counsel (from ▇▇▇▇▇▇ ▇▇▇▇, LLP), as described therein.
(e) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP, special counsel to the Company and AHFC, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) each of the Company and AHFC is validly existing and in good standing under the laws of the State of California;
(ii) when the Notes have been validly executed, authenticated and delivered in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter pursuant to this Agreement, shall be on or prior to the Notes will constitute valid and binding obligations date of this Agreement or, if the Effective Time of the Trust enforceable in accordance with their terms and entitled Initial Registration Statement is subsequent to the benefits of the Indenture, except that enforceability thereof may be subject to (a) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (b) general principles of equity regardless of whether such enforceability is considered in a proceeding at law or in equity;
(iii) the execution, delivery and performance by each of the Company and AHFC of the Basic Documents to which it is a party will not violate or result in a material breach of any of the terms of or constitute a material default under or (except as contemplated in the Basic Documents) result in the creation of any lien, charge or encumbrance on any property or assets of the Company or AHFC, pursuant to the terms of any indenture, mortgage, deed of trust or other agreement described in an Officer’s Certificate or Certificates and schedules attached to such opinion (collectively, the “Material Agreements”). As to those Material Agreements which by their terms are or may be governed by the laws of a jurisdiction other than New York, such counsel may assume that such Material Agreements are governed by the laws of the State of New York for purposes of such opinion. In addition, and in reliance upon a certificate of AHFC’s Chief Financial Officer or other accounting officer as to compliance with financial covenants, such counsel may exclude from the scope of such opinion any potential violation of financial covenants contained in such Material Agreements;
(iv) no consent, approval, authorization or order of, or filing with, any New York or federal governmental entity is required for the execution and delivery by either of the Company or AHFC of the Basic Documents this Agreement, shall be prior to which it is a party or the performance by either of the Company or AHFC of the transactions contemplated thereby where the failure to make or obtain such consent or approval of, notice to, filing with, or other action by, or take such action would reasonably be expected to have a material adverse effect on the ability of such entity to perform its obligations under the Basic Documents, except for (i) the filing of UCC financing statementsthe amendment or post-effective amendment to the registration statement to be filed shortly prior to such Effective Time), (ii) filings and other actions of Ernst & Young Ltda., confirming that may be required pursuant to state securities or blue sky lawsthey were independent public accountants as of September 30, and (iii) those that have already been obtained, made or taken;
(v) 2002 within the execution and delivery by each meaning of the Company and AHFC of the Basic Documents to which it is a party, the consummation of the transactions contemplated thereby and compliance with any of the provisions thereof by each of AHFC Act and the Company will not violate (i) any of applicable published Rules and Regulations thereunder as were in effect at such time and stating to the terms, conditions or provisions of the certificate of incorporation or bylaws of either of AHFC or the Company, each as amended, (ii) any federal or State of New York statute, rule or regulation applicable to AHFC or the Company (other than federal and state securities or blue sky laws, as to which such counsel need express no effect that in their opinion with respect to this paragraph) or (iii) any judgment, written injunction, decree, order or ruling of any court or governmental authority binding on AHFC or the Company of which such counsel has knowledge;
(vi) such counsel has no reason to believe that the Registration Statement or any amendment thereto, as of the date of the Final Prospectus or as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Preliminary Prospectus, together with the pricing information, as of its date, as of the Time of Sale and as of the Closing Date, or the Final Prospectus as of its date or as of the Closing Date, contains or contained any untrue statement of a material fact or omits or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need make no statement or express any opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus, and that for purposes of determining the date of the Preliminary or Final Prospectus, it shall be the date stated on the respective prospectus supplements thereto;
(vii) the Registration Statement and each Prospectus complies examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the rules related published Rules and regulations promulgated thereunder; and Regulations as were in effect at such counsel does not know of any contracts or documents of a character required to be described in the Registration Statement or each Prospectus or to be filed as exhibits to the Registration Statement that are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus; and
(viii) assuming that the Receivables are in substantially one of the forms attached to such opinion, the Receivables constitute tangible “chattel paper” within the meaning of the California UCCtime.
(f) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP, special counsel to the Company and AHFC, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) the Receivables Purchase Agreement creates a valid security interest in favor of the Company in AHFC’s right, title and interest in and to the Receivables transferred to the Company pursuant to the Receivables Purchase Agreement;
(ii) the Sale and Servicing Agreement creates a valid security interest in favor of the Trust in the Company’s right, title and interest in and to the Receivables transferred to the Trust pursuant to the Sale and Servicing Agreement;
(iii) the Indenture creates a valid security interest in favor of the Indenture Trustee in the Trust’s right, title and interest in and to the Receivables pledged to the Indenture Trustee pursuant to the Indenture;
(iv) the filing of the financing statements of Form UCC-1 naming (a) AHFC as debtor in favor of the Company, (b) the Company as debtor in favor of the Trust, and (c) the Trust as debtor in favor of the Indenture Trustee, in the respective offices, will be effective to perfect the security interests described in paragraphs (i), (ii) and (iii) above, and each such security interest will be prior to any security interest in the Receivables of any other creditor of AHFC, the Company or the Trust, respectively;
(v) the Trust Agreement is not req
Appears in 1 contract
Conditions of the Obligations of the Underwriter. The obligations of the Underwriter to purchase and pay for the Notes on the Closing Date will be hereunder are subject to the accuracy of the representations and warranties on the part of the Company and AHFC herein on the Closing Date, to the accuracy of the statements of Company and AHFC officers made pursuant to the provisions hereof, to the performance by the Company and AHFC of their respective obligations hereunder and to the following additional conditions precedentconditions:
(a) The Underwriter shall have received a letter, dated the date hereof or the Closing Date, of KPMG LLP, in form All filings required by Rule 424 and substance satisfactory to the Underwriter and counsel for the Underwriter, confirming that they are independent public accountants within the meaning Rule 430B of the Act and the applicable Rules and Regulations and stating in effect that shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement.
(i) they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Trust, AHFC and the Company) set forth in the Registration Statement, the Preliminary Prospectus, each Prospectus (and any supplements thereto), agrees with the accounting records of the Trust, AHFC and the Company, excluding any questions of legal interpretation, and (ii) they have performed certain specified procedures with respect to the Receivables and certain static pool data (within the meaning of Item 1105 of Regulation AB under the Act) included on the website listed in the Preliminary Prospectus and the Prospectus.
(b) Prior to the Closing Date, no No stop order suspending the effectiveness of the ADS Registration Statement, the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall be pending or threatened by the Commission, (ii) no order suspending the effectiveness of the ADS Registration Statement, the Registration Statement or the qualification or registration of the ADSs under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the Commission or the authorities of any such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any such authorities shall have been instituted orcomplied with to the satisfaction of the staff of the Commission or such authorities, (iv) after the date hereof no amendment or supplement to the ADS Registration Statement, the Registration Statement, the Prospectus or the Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriter and the Underwriter does not object thereto in good faith, and (v) the Underwriter shall have received certificates, dated the Closing Date and, if later, the applicable Option Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer of the Company (who may, as to proceedings threatened, rely upon the best of their information and belief), to the knowledge effect of the Company or the Underwriterclauses (i), shall be contemplated by the Commission(ii) and (iii) of this paragraph.
(c) Subsequent to Since the execution respective dates as of which information is given in the Registration Statement and delivery of this Agreementthe Pricing Prospectus, (i) there shall not have occurred (i) any changebeen a material adverse change in the general affairs, or any development or event involving a prospective change, in or affecting particularly the business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or AHFC whichany of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Pricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Underwriter any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriter at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment of the Underwriter, materially impairs the investment quality of any Class of the Notes have a Material Adverse Effect or makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any banking moratorium declared by Federal, California or New York authorities; or (iv) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any substantial national or international calamity or emergency if, in the judgment of the Underwriter, the effect of any such outbreak, escalation, declaration, calamity or emergency development makes it impractical impracticable or inadvisable to proceed with completion consummate the sale and delivery of the Offered ADSs by the Underwriter at the initial public offering or the sale of and payment for any Class of the Notesprice.
(de) The Underwriter shall have received an opinion Each of ▇▇▇▇, Forward, ▇▇▇▇▇▇▇▇ & Scripps LLP, special California counsel to the representations and warranties of the Company contained herein shall be true and AHFC, correct in all respects (in the case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects (in the case of such any other California counsel satisfactory to the Underwriter, dated representation and warranty) at the Closing Date and satisfactory in form and substance and, with respect to the Underwriter and in form and scope to counsel for Option ADSs, at the Underwriter, to the effect that:
(i) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Receivables Purchase Agreementapplicable Option Closing Date, and all covenants and agreements contained herein to incur its obligations set forth therein.
(ii) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Sale and Servicing Agreement, and to incur its obligations set forth therein.
(iii) Each of AHFC and the Company has the corporate power and corporate authority to carry on its business as described in the Prospectus.
(iv) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, have been duly authorized by all necessary corporate action on the part of AHFC, and each of the Basic Documents to which AHFC is a party has been duly executed and delivered by AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, have been duly authorized by all necessary corporate action be performed on the part of the Company, Company and each of the Basic Documents all conditions contained herein to which the Company is a party has been duly executed and delivered by the Company.
(v) The direction be fulfilled or complied with by the Company at or prior to the Indenture Trustee Closing Date and, with respect to authenticate the NotesOption ADSs, as set forth in a letter dated as of at or prior to the applicable Option Closing Date, and the direction by the Company to the Owner Trustee to execute and deliver to the Indenture Trustee for authentication the Notes, as set forth in a letter dated as of the Closing Date, shall have been duly authorized by all necessary corporate action on the part of the Company.
(vi) The direction by the Company to the Owner Trustee to authenticate and deliver the Certificatesperformed, as set forth in a letter dated as of the Closing Date, has been duly authorized by all necessary corporate action on the part of the Company.
(vii) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, do not violate any federal fulfilled or California statute, rule or regulation applicable to AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, do not violate any federal or California statute, rule or regulation applicable to the Company.
(viii) Assuming that AHFC follows its standard operating procedures for creating and perfecting security interests in California Financed Vehicles, as described in an Officers’ Certificate executed by AHFC and attached hereto, and relying solely on such Officers’ Certificate with respect to such facts (and AHFC has not informed us that it has not followed, or that it will not continue to follow, its standard operating procedures in connection with the creation and perfection of security interests in the California Financed Vehicles), AHFC has acquired or will acquire a perfected security interest in each California Financed Vehicle that will be prior to any other security interest therein created under Division 9 of the California Uniform Commercial Code.
(ix) No filing or other action is necessary to maintain the perfection of the security interest in the California Financed Vehicles created by the California Receivables and acquired by the Company, the Trust or the Indenture Trustee, as applicable. Such counsel may note that unless and until the obligors under the California Receivables receive effective notice of the transfer to the Company, the Trust or the Indenture Trustee (as the case may be) and of the assignment of the rights to payment, such obligors are entitled to make payments to and accept releases and discharges from AHFC, and, for so long as AHFC is named as the legal owner and lienholder on any certificate of title with respect to any California Financed Vehicle, AHFC has the power to release the security interest in such California Financed Vehicle or to make another assignment of such security interest to an assignee that becomes the lienholder named on the related certificate of title, which power may be improperly exercised either through fraud or inadvertence;
(x) No consent, approval, authorization or other action by, or filing complied with, any federal or California governmental authority, or any order or decree, or any modification of any order or decree, from any California court, is required for the execution and delivery by each of AHFC and the Company of each of the Basic Documents to which it is a party or the incurring of its obligations thereunder, or if required, the requisite consent, approval, or authorization has been obtained, the requisite filing has been accomplished, or the requisite action has been taken.
(xi) The statements in the Prospectus under the heading “Certain Legal Aspects of the Receivables,” to the extent that they constitute matters of State of California law or State of California legal conclusions, provide a fair and accurate summary in all material respects of such law or conclusions; provided, however, that we express no opinion with respect to statements in the next to last paragraph under the subheading “Consumer Protection Laws,” as to which the Company is receiving an opinion of counsel (from ▇▇▇▇▇▇ ▇▇▇▇, LLP), as described therein.
(e) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP, special counsel to the Company and AHFC, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) each of the Company and AHFC is validly existing and in good standing under the laws of the State of California;
(ii) when the Notes have been validly executed, authenticated and delivered in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter pursuant to this Agreement, the Notes will constitute valid and binding obligations of the Trust enforceable in accordance with their terms and entitled to the benefits of the Indenture, except that enforceability thereof may be subject to (a) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (b) general principles of equity regardless of whether such enforceability is considered in a proceeding at law or in equity;
(iii) the execution, delivery and performance by each of the Company and AHFC of the Basic Documents to which it is a party will not violate or result in a material breach of any of the terms of or constitute a material default under or (except as contemplated in the Basic Documents) result in the creation of any lien, charge or encumbrance on any property or assets of the Company or AHFC, pursuant to the terms of any indenture, mortgage, deed of trust or other agreement described in an Officer’s Certificate or Certificates and schedules attached to such opinion (collectively, the “Material Agreements”). As to those Material Agreements which by their terms are or may be governed by the laws of a jurisdiction other than New York, such counsel may assume that such Material Agreements are governed by the laws of the State of New York for purposes of such opinion. In addition, and in reliance upon a certificate of AHFC’s Chief Financial Officer or other accounting officer as to compliance with financial covenants, such counsel may exclude from the scope of such opinion any potential violation of financial covenants contained in such Material Agreements;
(iv) no consent, approval, authorization or order of, or filing with, any New York or federal governmental entity is required for the execution and delivery by either of the Company or AHFC of the Basic Documents to which it is a party or the performance by either of the Company or AHFC of the transactions contemplated thereby where the failure to make or obtain such consent or approval of, notice to, filing with, or other action by, or take such action would reasonably be expected to have a material adverse effect on the ability of such entity to perform its obligations under the Basic Documents, except for (i) the filing of UCC financing statements, (ii) filings and other actions that may be required pursuant to state securities or blue sky laws, and (iii) those that have already been obtained, made or taken;
(v) the execution and delivery by each of the Company and AHFC of the Basic Documents to which it is a party, the consummation of the transactions contemplated thereby and compliance with any of the provisions thereof by each of AHFC and the Company will not violate (i) any of the terms, conditions or provisions of the certificate of incorporation or bylaws of either of AHFC or the Company, each as amended, (ii) any federal or State of New York statute, rule or regulation applicable to AHFC or the Company (other than federal and state securities or blue sky laws, as to which such counsel need express no opinion with respect to this paragraph) or (iii) any judgment, written injunction, decree, order or ruling of any court or governmental authority binding on AHFC or the Company of which such counsel has knowledge;
(vi) such counsel has no reason to believe that the Registration Statement or any amendment thereto, as of the date of the Final Prospectus or as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Preliminary Prospectus, together with the pricing information, as of its date, as of the Time of Sale and as of the Closing Date, or the Final Prospectus as of its date or as of the Closing Date, contains or contained any untrue statement of a material fact or omits or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need make no statement or express any opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus, and that for purposes of determining the date of the Preliminary or Final Prospectus, it shall be the date stated on the respective prospectus supplements thereto;
(vii) the Registration Statement and each Prospectus complies in all material respects with the requirements of the Act and the rules and regulations promulgated thereunder; and such counsel does not know of any contracts or documents of a character required to be described in the Registration Statement or each Prospectus or to be filed as exhibits to the Registration Statement that are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus; and
(viii) assuming that the Receivables are in substantially one of the forms attached to such opinion, the Receivables constitute tangible “chattel paper” within the meaning of the California UCC.
(f) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP, special counsel to the Company and AHFCopinion, dated the Closing Date and and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Underwriter and counsel for the Underwriter from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, U.S. counsel to the Company and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ (Europe) LLP, French counsel to the Company.
(g) The Underwriter shall have received an opinion, dated the Closing Date, satisfactory in form and scope substance to the Underwriter and counsel for the UnderwriterUnderwriter from Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP and ▇▇▇▇▇▇ and Calder, special counsel to the effect that:
(i) the Receivables Purchase Agreement creates a valid security interest in favor of the Company in AHFC’s right, title and interest in and to the Receivables transferred to the Company pursuant to the Receivables Purchase Agreement;
(ii) the Sale and Servicing Agreement creates a valid security interest in favor of the Trust in the Company’s right, title and interest in and to the Receivables transferred to the Trust pursuant to the Sale and Servicing Agreement;
(iii) the Indenture creates a valid security interest in favor of the Indenture Trustee in the Trust’s right, title and interest in and to the Receivables pledged to the Indenture Trustee pursuant to the Indenture;
(iv) the filing of the financing statements of Form UCC-1 naming (a) AHFC as debtor in favor of the Company, (b) the Company as debtor in favor of the Trust, and (c) the Trust as debtor in favor of the Indenture Trustee, in the respective offices, will be effective to perfect the security interests described in paragraphs (i), (ii) and (iii) above, and each such security interest will be prior to any security interest in the Receivables of any other creditor of AHFC, the Company or the Trust, respectively;
(v) the Trust Agreement is not reqSelling Securityholder.
Appears in 1 contract
Conditions of the Obligations of the Underwriter. The ------------------------------------------------- obligations of the Underwriter to purchase and pay for the Notes on the Closing Date Certificates will be subject to the accuracy of the representations and warranties on the part of the Company and AHFC herein on the Closing DateBank herein, to the accuracy of the statements of Company and AHFC officers of the Bank made pursuant to the provisions hereof, to the performance by the Company and AHFC Bank of their respective its obligations hereunder and to the following additional conditions precedent:
(a) The Underwriter Prospectus and any supplements thereto shall have received a letter, dated been filed (if required) with the date hereof or Commission in accordance with the Closing Date, of KPMG LLP, in form and substance satisfactory to the Underwriter and counsel for the Underwriter, confirming that they are independent public accountants within the meaning of the Act and the applicable Rules and Regulations and stating in effect that (i) they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Trust, AHFC and the Company) set forth in the Registration Statement, the Preliminary Prospectus, each Prospectus (and any supplements thereto), agrees with the accounting records of the Trust, AHFC and the Company, excluding any questions of legal interpretationSection 1 hereof, and (ii) they have performed certain specified procedures with respect to the Receivables and certain static pool data (within the meaning of Item 1105 of Regulation AB under the Act) included on the website listed in the Preliminary Prospectus and the Prospectus.
(b) Prior prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the UnderwriterBank, shall be contemplated by the CommissionCommission or by any authority administering any state securities or blue sky law.
(b) On or prior to the date of the Prospectus and on or prior to the Closing Date, the Underwriter shall have received a letter or letters, dated as of the date of the Prospectus and as of the Closing Date, respectively, of PricewaterhouseCoopers LLP, Certified Public Accountants, substantially in the form of the drafts to which the Underwriter has previously agreed and otherwise in form and substance satisfactory to the Underwriter and its counsel.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in or affecting particularly the business, properties, condition (financial business or otherwise) or results of operations properties of the Company Trust, or AHFC the Bank which, in the judgment of the Underwriter, materially impairs the investment quality of any Class of the Notes Certificates or makes it impractical or inadvisable to proceed with completion of market the public offering or the sale of and payment for any Class of the NotesCertificates; (ii) any suspension or limitation of on trading in securities generally on the New York Stock ExchangeExchange or the National Association of Securities Dealers National Market system, or any setting of minimum prices for trading on such exchangeexchange or market system; (iii) any suspension of trading of any securities of BANC ONE CORPORATION on any exchange or in the over-the-counter market which materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to market the Certificates; (iv) any banking moratorium declared by Federal, California Delaware or New York authorities; or (ivv) any outbreak or escalation of major hostilities in which the United States is involvedor armed conflict, any declaration of war by Congress Congress, or any other substantial national or international calamity or emergency if, in the judgment of the Underwriter, the effect of any such outbreak, escalation, declaration, calamity calamity, or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the NotesCertificates.
(d) The Underwriter At the Closing Date, the Bank shall have received an opinion furnished to the Underwriter certificates of a vice president or more senior officer of the Bank as to the accuracy of the representations and warranties of the Bank herein at and as of the Closing Date, as to the performance by the Bank of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to such other matters as the Underwriter may reasonably request.
(e) Joan▇▇▇▇, Forward, ▇ ▇▇▇▇▇▇▇▇ & Scripps LLP▇, special California counsel ▇▇sociate General Counsel of the Bank, shall have furnished to the Company and AHFCUnderwriter her written opinion, or of such other California counsel satisfactory addressed to the Underwriter, Underwriter and dated the Closing Date and satisfactory Date, in form and substance satisfactory to the Underwriter and in form and scope to counsel for the Underwriterits counsel, substantially to the effect that:
(i) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Receivables Purchase Agreement, and to incur its obligations set forth therein.
(ii) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Sale and Servicing Agreement, and to incur its obligations set forth therein.
(iii) Each of AHFC and the Company has the corporate power and corporate authority to carry on its business as described in the Prospectus.
(iv) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, have been duly authorized by all necessary corporate action on the part of AHFC, and each of the Basic Documents to which AHFC is a party Bank has been duly executed organized and delivered by AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, have been duly authorized by all necessary corporate action on the part of the Company, and each of the Basic Documents to which the Company is a party has been duly executed and delivered by the Company.
(v) The direction by the Company to the Indenture Trustee to authenticate the Notes, as set forth in a letter dated as of the Closing Date, and the direction by the Company to the Owner Trustee to execute and deliver to the Indenture Trustee for authentication the Notes, as set forth in a letter dated as of the Closing Date, have been duly authorized by all necessary corporate action on the part of the Company.
(vi) The direction by the Company to the Owner Trustee to authenticate and deliver the Certificates, as set forth in a letter dated as of the Closing Date, has been duly authorized by all necessary corporate action on the part of the Company.
(vii) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, do not violate any federal or California statute, rule or regulation applicable to AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, do not violate any federal or California statute, rule or regulation applicable to the Company.
(viii) Assuming that AHFC follows its standard operating procedures for creating and perfecting security interests in California Financed Vehicles, as described in an Officers’ Certificate executed by AHFC and attached hereto, and relying solely on such Officers’ Certificate with respect to such facts (and AHFC has not informed us that it has not followed, or that it will not continue to follow, its standard operating procedures in connection with the creation and perfection of security interests in the California Financed Vehicles), AHFC has acquired or will acquire a perfected security interest in each California Financed Vehicle that will be prior to any other security interest therein created under Division 9 of the California Uniform Commercial Code.
(ix) No filing or other action is necessary to maintain the perfection of the security interest in the California Financed Vehicles created by the California Receivables and acquired by the Company, the Trust or the Indenture Trustee, as applicable. Such counsel may note that unless and until the obligors under the California Receivables receive effective notice of the transfer to the Company, the Trust or the Indenture Trustee (as the case may be) and of the assignment of the rights to payment, such obligors are entitled to make payments to and accept releases and discharges from AHFC, and, for so long as AHFC is named as the legal owner and lienholder on any certificate of title with respect to any California Financed Vehicle, AHFC has the power to release the security interest in such California Financed Vehicle or to make another assignment of such security interest to an assignee that becomes the lienholder named on the related certificate of title, which power may be improperly exercised either through fraud or inadvertence;
(x) No consent, approval, authorization or other action by, or filing with, any federal or California governmental authority, or any order or decree, or any modification of any order or decree, from any California court, is required for the execution and delivery by each of AHFC and the Company of each of the Basic Documents to which it is a party or the incurring of its obligations thereunder, or if required, the requisite consent, approval, or authorization has been obtained, the requisite filing has been accomplished, or the requisite action has been taken.
(xi) The statements in the Prospectus under the heading “Certain Legal Aspects of the Receivables,” to the extent that they constitute matters of State of California law or State of California legal conclusions, provide a fair and accurate summary in all material respects of such law or conclusions; provided, however, that we express no opinion with respect to statements in the next to last paragraph under the subheading “Consumer Protection Laws,” as to which the Company is receiving an opinion of counsel (from ▇▇▇▇▇▇ ▇▇▇▇, LLP), as described therein.
(e) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP, special counsel to the Company and AHFC, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) each of the Company and AHFC is validly existing and as a national banking association in good standing under the laws of the State of CaliforniaUnited States with full power and authority (corporate and other) to own its properties and conduct its business, as presently owned and conducted by it, and to enter into and perform its obligations under this Agreement, the Transfer and Administration Agreement and the Pooling and Servicing Agreement (collectively referred to in this subsection (e) as the "Agreements"), and the ---------- Certificates and had at all times, and now has, the power, authority and legal right to acquire, own and transfer the Receivables;
(ii) when the Notes The Certificates have been validly executedduly authorized, authenticated executed and delivered by the Bank and, when duly authenticated by the Trustee in accordance with the provisions terms of the Indenture Pooling and Servicing Agreement and delivered to and paid for by the Underwriter pursuant to in accordance with the terms of this Agreement, the Notes will constitute valid be validly issued and binding obligations of the Trust enforceable in accordance with their terms outstanding and entitled to the benefits provided by the Pooling and Servicing Agreement;
(iii) Each of the IndenturePooling and Servicing Agreement and the Transfer and Administration Agreement has been duly authorized, except that enforceability thereof may be subject executed and delivered by the Bank and constitutes the legal, valid and binding agreement of the Bank enforceable against the Bank in accordance with its terms, subject, as to enforceability, to (aA) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, moratorium or liquidation and other similar laws now or hereafter in effect relating to creditors’ or affecting the rights generally and remedies of creditors generally, and (bB) general the application of principles of equity (regardless of whether such enforceability is considered and applied in a proceeding in equity or at law or in equitylaw) and the rights and powers of the FDIC;
(iiiiv) This Agreement has been duly authorized, executed and delivered by the Bank;
(v) The Trust is not now, and immediately following the sale of the Certificates pursuant to the Underwriting Agreement will not be, required to register under the 1940 Act;
(vi) No consent, approval, authorization or order of any governmental agency or body is required for (A) the execution, delivery and performance by each the Bank of the Company and AHFC of the Basic Documents to which it is a party will not violate or result in a material breach of any of the terms of or constitute a material default under or (except as contemplated in the Basic Documents) result in the creation of any lien, charge or encumbrance on any property or assets of the Company or AHFC, pursuant to the terms of any indenture, mortgage, deed of trust or other agreement described in an Officer’s Certificate or Certificates and schedules attached to such opinion (collectively, the “Material Agreements”). As to those Material Agreements which by their terms are or may be governed by the laws of a jurisdiction other than New York, such counsel may assume that such Material Agreements are governed by the laws of the State of New York for purposes of such opinion. In addition, and in reliance upon a certificate of AHFC’s Chief Financial Officer or other accounting officer as to compliance with financial covenants, such counsel may exclude from the scope of such opinion any potential violation of financial covenants contained in such Material Agreements;
(iv) no consent, approval, authorization or order of, or filing with, any New York or federal governmental entity is required for the execution and delivery by either of the Company or AHFC of the Basic Documents to which it is a party or the performance by either of the Company or AHFC of the transactions contemplated thereby where the failure to make or obtain such consent or approval of, notice to, filing with, or other action by, or take such action would reasonably be expected to have a material adverse effect on the ability of such entity to perform its obligations under the Basic DocumentsAgreements or the Certificates, or (B) the issuance or sale of the Certificates, except for (i) such as have been obtained under the filing of UCC financing statements, (ii) filings Act and other actions that as may be required pursuant to under state securities or blue sky laws, laws in connection with the purchase and (iii) those that have already been obtained, made or takendistribution of the Certificates by the Underwriter and the filing of Uniform Commercial Code financing statements with respect to the Receivables;
(vvii) To the best knowledge of such counsel, neither the execution and delivery by each of the Company and AHFC of Agreements or the Basic Documents to which it is a party, Certificates by the consummation Bank nor the performance by the Bank of the transactions therein contemplated thereby and compliance with any nor the fulfillment of the provisions terms thereof by each does or will result in any violation of AHFC and the Company will not violate (i) any of the terms, conditions or provisions of the certificate of incorporation or bylaws of either of AHFC or the Company, each as amended, (ii) any federal or State of New York statute, rule statute or regulation applicable to AHFC or the Company (other than federal and state securities or blue sky laws, as to which such counsel need express no opinion with respect to this paragraph) or (iii) any judgment, written injunction, decree, order or ruling decree of any court or governmental authority binding on AHFC upon the Bank or its property, or conflict with, or result in a breach or violation of any term or provision of, or result in a default under any of the Company of which such counsel has knowledge;
(vi) such counsel has no reason to believe that terms and provisions of, the Registration Statement Bank's organizational documents or bylaws or any amendment theretomaterial indenture, as of the date of the Final Prospectus or as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Preliminary Prospectus, together with the pricing information, as of its date, as of the Time of Sale and as of the Closing Date, or the Final Prospectus as of its date or as of the Closing Date, contains or contained any untrue statement of a material fact or omits or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need make no statement or express any opinion as to the financial statements loan agreement or other financial, numerical, statistical and quantitative information contained in material agreement to which the Registration Statement Bank is a party or a Prospectus, and that for purposes of determining by which the date of the Preliminary or Final Prospectus, it shall be the date stated on the respective prospectus supplements theretoBank is bound;
(vii) the Registration Statement and each Prospectus complies in all material respects with the requirements of the Act and the rules and regulations promulgated thereunder; and such counsel does not know of any contracts or documents of a character required to be described in the Registration Statement or each Prospectus or to be filed as exhibits to the Registration Statement that are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus; and
(viii) assuming that To the Receivables knowledge of such counsel after due investigation, there are in substantially one of no legal or governmental proceedings pending to which the forms attached Bank is a party or to such opinionwhich the Bank is subject which, the Receivables constitute tangible “chattel paper” within the meaning of the California UCC.
(f) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP, special counsel to the Company and AHFC, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) the Receivables Purchase Agreement creates a valid security interest in favor of the Company in AHFC’s right, title and interest in and to the Receivables transferred to the Company pursuant to the Receivables Purchase Agreement;
(ii) the Sale and Servicing Agreement creates a valid security interest in favor of the Trust individually or in the Company’s right, title and interest in and to the Receivables transferred to the Trust pursuant to the Sale and Servicing Agreement;
aggregate (iiiA) the Indenture creates would have a valid security interest in favor of the Indenture Trustee in the Trust’s right, title and interest in and to the Receivables pledged to the Indenture Trustee pursuant to the Indenture;
(iv) the filing of the financing statements of Form UCC-1 naming (a) AHFC as debtor in favor of the Company, (b) the Company as debtor in favor of the Trust, and (c) the Trust as debtor in favor of the Indenture Trustee, in the respective offices, will be effective to perfect the security interests described in paragraphs (i), (ii) and (iii) above, and each such security interest will be prior to any security interest in the Receivables of any other creditor of AHFC, the Company or the Trust, respectively;
(v) the Trust Agreement is not reqmaterial adverse
Appears in 1 contract
Sources: Underwriting Agreement (First Usa Credit Card Master Trust)
Conditions of the Obligations of the Underwriter. The obligations of the Underwriter to purchase and pay for the Notes on the Closing Date will be Certificates pursuant to this Agreement are subject to the accuracy on and as of the Closing Date of the representations and warranties on the part of the Company and AHFC ACC herein on the Closing Datecontained, to the accuracy of the statements of Company and AHFC officers of ACC made pursuant to the provisions hereofhereto, to the performance by the Company and AHFC ACC of their respective all of its obligations hereunder and to the following additional conditions precedentat the Closing Date:
11 12 (a) The Underwriter shall have received a letter, dated the date hereof of delivery thereof (which, if the Effective Time is prior to the execution and delivery of this Agreement, shall be on or prior to the Closing Datedate of this Agreement or, if the Effective Time is subsequent to the execution and delivery of KPMG LLPthis Agreement, shall be prior to the filing of the amendment or post-effective amendment to the Registration Statement to be filed shortly prior to the Effective Time), from ______________________________________, in form and substance satisfactory to the Underwriter and counsel for the Underwriter, confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and stating in effect that (i) they have performed certain specified procedures as a result of which they have determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Trust, AHFC Trust and the Company) ACC set forth in the Registration Statement, Statement and the Preliminary Prospectus, each Prospectus (and any supplements thereto), agrees with the accounting records of the Trust, AHFC Trust and the CompanyACC, excluding any questions of legal interpretation, and (ii) they have performed certain specified procedures with respect to the computer programs used to select the Receivables and certain static pool data (within to generate information with respect to the meaning of Item 1105 of Regulation AB under the Act) included on the website listed Receivables set forth in the Preliminary Prospectus Registration Statement and the Prospectus.
(b) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in or affecting particularly the business, properties, condition (financial or otherwise) or results of operations of the Company or AHFC which, in the judgment of the Underwriter, materially impairs the investment quality of any Class of the Notes or makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any banking moratorium declared by Federal, California or New York authorities; or (iv) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any substantial national or international calamity or emergency if, in the judgment of the Underwriter, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the Notes.
(d) The Underwriter shall have received an opinion of ▇▇▇▇, Forward, ▇▇▇▇▇▇▇▇ & Scripps LLP, special California counsel to the Company and AHFC, or of such other California counsel satisfactory to the Underwriter, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Receivables Purchase Agreement, and to incur its obligations set forth therein.
(ii) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Sale and Servicing Agreement, and to incur its obligations set forth therein.
(iii) Each of AHFC and the Company has the corporate power and corporate authority to carry on its business as described in the Prospectus.
(iv) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, have been duly authorized by all necessary corporate action on the part of AHFC, and each of the Basic Documents to which AHFC is a party has been duly executed and delivered by AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, have been duly authorized by all necessary corporate action on the part of the Company, and each of the Basic Documents to which the Company is a party has been duly executed and delivered by the Company.
(v) The direction by the Company to the Indenture Trustee to authenticate the Notes, as set forth in a letter dated as of the Closing Date, and the direction by the Company to the Owner Trustee to execute and deliver to the Indenture Trustee for authentication the Notes, as set forth in a letter dated as of the Closing Date, have been duly authorized by all necessary corporate action on the part of the Company.
(vi) The direction by the Company to the Owner Trustee to authenticate and deliver the Certificates, as set forth in a letter dated as of the Closing Date, has been duly authorized by all necessary corporate action on the part of the Company.
(vii) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, do not violate any federal or California statute, rule or regulation applicable to AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, do not violate any federal or California statute, rule or regulation applicable to the Company.
(viii) Assuming that AHFC follows its standard operating procedures for creating and perfecting security interests in California Financed Vehicles, as described in an Officers’ Certificate executed by AHFC and attached hereto, and relying solely on such Officers’ Certificate with respect to such facts (and AHFC has not informed us that it has not followed, or that it will not continue to follow, its standard operating procedures in connection with the creation and perfection of security interests in the California Financed Vehicles), AHFC has acquired or will acquire a perfected security interest in each California Financed Vehicle that will be prior to any other security interest therein created under Division 9 of the California Uniform Commercial Code.
(ix) No filing or other action is necessary to maintain the perfection of the security interest in the California Financed Vehicles created by the California Receivables and acquired by the Company, the Trust or the Indenture Trustee, as applicable. Such counsel may note that unless and until the obligors under the California Receivables receive effective notice of the transfer to the Company, the Trust or the Indenture Trustee (as the case may be) and of the assignment of the rights to payment, such obligors are entitled to make payments to and accept releases and discharges from AHFC, and, for so long as AHFC is named as the legal owner and lienholder on any certificate of title with respect to any California Financed Vehicle, AHFC has the power to release the security interest in such California Financed Vehicle or to make another assignment of such security interest to an assignee that becomes the lienholder named on the related certificate of title, which power may be improperly exercised either through fraud or inadvertence;
(x) No consent, approval, authorization or other action by, or filing with, any federal or California governmental authority, or any order or decree, or any modification of any order or decree, from any California court, is required for the execution and delivery by each of AHFC and the Company of each of the Basic Documents to which it is a party or the incurring of its obligations thereunder, or if required, the requisite consent, approval, or authorization has been obtained, the requisite filing has been accomplished, or the requisite action has been taken.
(xi) The statements in the Prospectus under the heading “Certain Legal Aspects of the Receivables,” to the extent that they constitute matters of State of California law or State of California legal conclusions, provide a fair and accurate summary in all material respects of such law or conclusions; provided, however, that we express no opinion with respect to statements in the next to last paragraph under the subheading “Consumer Protection Laws,” as to which the Company is receiving an opinion of counsel (from ▇▇▇▇▇▇ ▇▇▇▇, LLP), as described therein.
(e) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP, special counsel to the Company and AHFC, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) each of the Company and AHFC is validly existing and in good standing under the laws of the State of California;
(ii) when the Notes have been validly executed, authenticated and delivered in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter pursuant to this Agreement, the Notes will constitute valid and binding obligations of the Trust enforceable in accordance with their terms and entitled to the benefits of the Indenture, except that enforceability thereof may be subject to (a) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (b) general principles of equity regardless of whether such enforceability is considered in a proceeding at law or in equity;
(iii) the execution, delivery and performance by each of the Company and AHFC of the Basic Documents to which it is a party will not violate or result in a material breach of any of the terms of or constitute a material default under or (except as contemplated in the Basic Documents) result in the creation of any lien, charge or encumbrance on any property or assets of the Company or AHFC, pursuant to the terms of any indenture, mortgage, deed of trust or other agreement described in an Officer’s Certificate or Certificates and schedules attached to such opinion (collectively, the “Material Agreements”). As to those Material Agreements which by their terms are or may be governed by the laws of a jurisdiction other than New York, such counsel may assume that such Material Agreements are governed by the laws of the State of New York for purposes of such opinion. In addition, and in reliance upon a certificate of AHFC’s Chief Financial Officer or other accounting officer as to compliance with financial covenants, such counsel may exclude from the scope of such opinion any potential violation of financial covenants contained in such Material Agreements;
(iv) no consent, approval, authorization or order of, or filing with, any New York or federal governmental entity is required for the execution and delivery by either of the Company or AHFC of the Basic Documents to which it is a party or the performance by either of the Company or AHFC of the transactions contemplated thereby where the failure to make or obtain such consent or approval of, notice to, filing with, or other action by, or take such action would reasonably be expected to have a material adverse effect on the ability of such entity to perform its obligations under the Basic Documents, except for (i) the filing of UCC financing statements, (ii) filings and other actions that may be required pursuant to state securities or blue sky laws, and (iii) those that have already been obtained, made or taken;
(v) the execution and delivery by each of the Company and AHFC of the Basic Documents to which it is a party, the consummation of the transactions contemplated thereby and compliance with any of the provisions thereof by each of AHFC and the Company will not violate (i) any of the terms, conditions or provisions of the certificate of incorporation or bylaws of either of AHFC or the Company, each as amended, (ii) any federal or State of New York statute, rule or regulation applicable to AHFC or the Company (other than federal and state securities or blue sky laws, as to which such counsel need express no opinion with respect to this paragraph) or (iii) any judgment, written injunction, decree, order or ruling of any court or governmental authority binding on AHFC or the Company of which such counsel has knowledge;
(vi) such counsel has no reason to believe that the Registration Statement or any amendment thereto, as of the date of the Final Prospectus or as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Preliminary Prospectus, together with the pricing information, as of its date, as of the Time of Sale and as of the Closing Date, or the Final Prospectus as of its date or as of the Closing Date, contains or contained any untrue statement of a material fact or omits or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need make no statement or express any opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus, and that for purposes of determining the date of the Preliminary or Final Prospectus, it shall be the date stated on the respective prospectus supplements thereto;
(vii) the Registration Statement and each Prospectus complies in all material respects with the requirements of the Act and the rules and regulations promulgated thereunder; and such counsel does not know of any contracts or documents of a character required to be described in the Registration Statement or each Prospectus or to be filed as exhibits to the Registration Statement that are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus; and
(viii) assuming that the Receivables are in substantially one of the forms attached to such opinion, the Receivables constitute tangible “chattel paper” within the meaning of the California UCC.
(f) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP, special counsel to the Company and AHFC, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) the Receivables Purchase Agreement creates a valid security interest in favor of the Company in AHFC’s right, title and interest in and to the Receivables transferred to the Company pursuant to the Receivables Purchase Agreement;
(ii) the Sale and Servicing Agreement creates a valid security interest in favor of the Trust in the Company’s right, title and interest in and to the Receivables transferred to the Trust pursuant to the Sale and Servicing Agreement;
(iii) the Indenture creates a valid security interest in favor of the Indenture Trustee in the Trust’s right, title and interest in and to the Receivables pledged to the Indenture Trustee pursuant to the Indenture;
(iv) the filing of the financing statements of Form UCC-1 naming (a) AHFC as debtor in favor of the Company, (b) the Company as debtor in favor of the Trust, and (c) the Trust as debtor in favor of the Indenture Trustee, in the respective offices, will be effective to perfect the security interests described in paragraphs (i), (ii) and (iii) above, and each such security interest will be prior to any security interest in the Receivables of any other creditor of AHFC, the Company or the Trust, respectively;
(v) the Trust Agreement is not req
Appears in 1 contract
Conditions of the Obligations of the Underwriter. The obligations of the Underwriter Your obligation to purchase and pay for the Notes on the Closing Date Certificates will be subject to the accuracy of the representations and warranties on the part of the Company and AHFC herein on the Closing DateDepositor herein, to the accuracy of the statements of Company and AHFC officers of the Depositor made pursuant to the provisions hereof, to the performance by the Company and AHFC Depositor of their respective its obligations hereunder and to the following additional conditions precedent:
(a) The Underwriter Prospectus and any supplements thereto shall have received a letter, dated been filed (if required) with the date hereof or Commission in accordance with the Closing Date, of KPMG LLP, in form and substance satisfactory to the Underwriter and counsel for the Underwriter, confirming that they are independent public accountants within the meaning of the Act and the applicable Rules and Regulations and stating in effect that (iSection 5(a) they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Trust, AHFC and the Company) set forth in the Registration Statement, the Preliminary Prospectus, each Prospectus (and any supplements thereto), agrees with the accounting records of the Trust, AHFC and the Company, excluding any questions of legal interpretationhereof, and (ii) they have performed certain specified procedures with respect to the Receivables and certain static pool data (within the meaning of Item 1105 of Regulation AB under the Act) included on the website listed in the Preliminary Prospectus and the Prospectus.
(b) Prior prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company Depositor or the Underwriteryou, shall be contemplated by the CommissionCommission or by any authority administering any state securities or blue sky law and any request of the Commission for inclusion of additional information in the Registration Statement or any Prospectus or otherwise shall have been complied with.
(b) The [insert applicable national securities exchange or Nasdaq] shall have indicated in writing that the Certificates have been approved for listing effective upon notice of issuance.]
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in or affecting particularly the business, properties, condition (financial business or otherwise) or results of operations properties of the Company Trust or AHFC the Depositor which, in the judgment of the Underwriter, materially impairs the investment quality of any Class of the Notes Certificates or makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the NotesCertificates; (ii) any suspension or limitation of trading in securities generally on the New York any national securities exchange or The Nasdaq Stock ExchangeMarket, or any setting of minimum prices for trading on such exchangeexchange or The Nasdaq Stock Market; (iii) any banking moratorium declared by Federal, California Federal or New York authorities; or (iv) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress Congress, or any other substantial national or international calamity or emergency if, in the judgment of the Underwriter, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the NotesCertificates.
(d) The Underwriter shall have received an opinion of ▇▇▇▇, Forward, ▇▇▇▇▇▇▇▇ & Scripps LLP, special California counsel to the Company and AHFC, or of such other California counsel satisfactory to the Underwriter, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Receivables Purchase Agreement, and to incur its obligations set forth therein.
(ii) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Sale and Servicing Agreement, and to incur its obligations set forth therein.
(iii) Each of AHFC and the Company has the corporate power and corporate authority to carry on its business as described in the Prospectus.
(iv) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, have been duly authorized by all necessary corporate action on the part of AHFC, and each of the Basic Documents to which AHFC is a party has been duly executed and delivered by AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, have been duly authorized by all necessary corporate action on the part of the Company, and each of the Basic Documents to which the Company is a party has been duly executed and delivered by the Company.
(v) The direction by the Company to the Indenture Trustee to authenticate the Notes, as set forth in a letter dated as of the Closing Date, and the direction by the Company to the Owner Trustee to execute and deliver to the Indenture Trustee for authentication the Notes, as set forth in a letter dated as of the Closing Date, have been duly authorized by all necessary corporate action on the part of the Company.
(vi) The direction by the Company to the Owner Trustee to authenticate and deliver the Certificates, as set forth in a letter dated as of the Closing Date, has been duly authorized by all necessary corporate action on the part of the Company.
(vii) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, do not violate any federal or California statute, rule or regulation applicable to AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, do not violate any federal or California statute, rule or regulation applicable to the Company.
(viii) Assuming that AHFC follows its standard operating procedures for creating and perfecting security interests in California Financed Vehicles, as described in an Officers’ Certificate executed by AHFC and attached hereto, and relying solely on such Officers’ Certificate with respect to such facts (and AHFC has not informed us that it has not followed, or that it will not continue to follow, its standard operating procedures in connection with the creation and perfection of security interests in the California Financed Vehicles), AHFC has acquired or will acquire a perfected security interest in each California Financed Vehicle that will be prior to any other security interest therein created under Division 9 of the California Uniform Commercial Code.
(ix) No filing or other action is necessary to maintain the perfection of the security interest in the California Financed Vehicles created by the California Receivables and acquired by the Company, the Trust or the Indenture Trustee, as applicable. Such counsel may note that unless and until the obligors under the California Receivables receive effective notice of the transfer to the Company, the Trust or the Indenture Trustee (as the case may be) and of the assignment of the rights to payment, such obligors are entitled to make payments to and accept releases and discharges from AHFC, and, for so long as AHFC is named as the legal owner and lienholder on any certificate of title with respect to any California Financed Vehicle, AHFC has the power to release the security interest in such California Financed Vehicle or to make another assignment of such security interest to an assignee that becomes the lienholder named on the related certificate of title, which power may be improperly exercised either through fraud or inadvertence;
(x) No consent, approval, authorization or other action by, or filing with, any federal or California governmental authority, or any order or decree, or any modification of any order or decree, from any California court, is required for the execution and delivery by each of AHFC and the Company of each of the Basic Documents to which it is a party or the incurring of its obligations thereunder, or if required, the requisite consent, approval, or authorization has been obtained, the requisite filing has been accomplished, or the requisite action has been taken.
(xi) The statements in the Prospectus under the heading “Certain Legal Aspects of the Receivables,” to the extent that they constitute matters of State of California law or State of California legal conclusions, provide a fair and accurate summary in all material respects of such law or conclusions; provided, however, that we express no opinion with respect to statements in the next to last paragraph under the subheading “Consumer Protection Laws,” as to which the Company is receiving an opinion of counsel (from ▇▇▇▇▇▇ ▇▇▇▇, LLP), as described therein.
(e) The Underwriter You shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP▇, special counsel to the Company and AHFC, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) each of the Company and AHFC is validly existing and in good standing under the laws of the State of California;
(ii) when the Notes have been validly executed, authenticated and delivered in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter pursuant to this Agreement, the Notes will constitute valid and binding obligations of the Trust enforceable in accordance with their terms and entitled to the benefits of the Indenture, except that enforceability thereof may be subject to (a) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (b) general principles of equity regardless of whether such enforceability is considered in a proceeding at law or in equity;
(iii) the execution, delivery and performance by each of the Company and AHFC of the Basic Documents to which it is a party will not violate or result in a material breach of any of the terms of or constitute a material default under or (except as contemplated in the Basic Documents) result in the creation of any lien, charge or encumbrance on any property or assets of the Company or AHFC, pursuant to the terms of any indenture, mortgage, deed of trust or other agreement described in an Officer’s Certificate or Certificates and schedules attached to such opinion (collectively, the “Material Agreements”). As to those Material Agreements which by their terms are or may be governed by the laws of a jurisdiction other than New York, such counsel may assume that such Material Agreements are governed by the laws of the State of New York for purposes of such opinion. In addition, and in reliance upon a certificate of AHFC’s Chief Financial Officer or other accounting officer as to compliance with financial covenants, such counsel may exclude from the scope of such opinion any potential violation of financial covenants contained in such Material Agreements;
(iv) no consent, approval, authorization or order of, or filing with, any New York or federal governmental entity is required for the execution and delivery by either of the Company or AHFC of the Basic Documents to which it is a party or the performance by either of the Company or AHFC of the transactions contemplated thereby where the failure to make or obtain such consent or approval of, notice to, filing with, or other action by, or take such action would reasonably be expected to have a material adverse effect on the ability of such entity to perform its obligations under the Basic Documents, except for (i) the filing of UCC financing statements, (ii) filings and other actions that may be required pursuant to state securities or blue sky laws, and (iii) those that have already been obtained, made or taken;
(v) the execution and delivery by each of the Company and AHFC of the Basic Documents to which it is a party, the consummation of the transactions contemplated thereby and compliance with any of the provisions thereof by each of AHFC and the Company will not violate (i) any of the terms, conditions or provisions of the certificate of incorporation or bylaws of either of AHFC or the Company, each as amended, (ii) any federal or State of New York statute, rule or regulation applicable to AHFC or the Company (other than federal and state securities or blue sky laws, as to which such counsel need express no opinion with respect to this paragraph) or (iii) any judgment, written injunction, decree, order or ruling of any court or governmental authority binding on AHFC or the Company of which such counsel has knowledge;
(vi) such counsel has no reason to believe that the Registration Statement or any amendment thereto, as of the date of the Final Prospectus or as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Preliminary Prospectus, together with the pricing information, as of its date, as of the Time of Sale and as of the Closing Date, or the Final Prospectus as of its date or as of the Closing Date, contains or contained any untrue statement of a material fact or omits or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need make no statement or express any opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus, and that for purposes of determining the date of the Preliminary or Final Prospectus, it shall be the date stated on the respective prospectus supplements thereto;
(vii) the Registration Statement and each Prospectus complies in all material respects with the requirements of the Act and the rules and regulations promulgated thereunder; and such counsel does not know of any contracts or documents of a character required to be described in the Registration Statement or each Prospectus or to be filed as exhibits to the Registration Statement that are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus; and
(viii) assuming that the Receivables are in substantially one of the forms attached to such opinion, the Receivables constitute tangible “chattel paper” within the meaning of the California UCC.
(f) The Underwriter shall have received an opinion of ▇▇▇▇▇▇▇▇▇▇ & Bird ▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Company Depositor and AHFCthe Trust, addressed to you, dated the Closing Date, with respect to the incorporation of the Depositor, the validity of the Certificates, the Registration Statement and the Prospectus and other related matters as you may require, and substantially in the form of drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel.
(e) You shall have received an opinion, addressed to you and dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as special tax counsel to the Depositor and the Trust confirming the opinions set forth in the Prospectus under the headings “Certain Federal Income Tax Consequences.”
(f) You shall have received from [ ], counsel to the Underwriter, such opinion or opinions, dated the Closing Date and addressed to you, with respect to the validity of the Certificates and such other related matters as you shall require and the Depositor shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) You shall have received certificates dated the Closing Date of such of the principal executive, financial and accounting officers of the Depositor as you may request, dated the Closing Date, in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of the Depositor contained in this Agreement and the Corporate Trust Agreement are true and correct, that the Depositor has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and (ii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, no material adverse change, or any development involving a prospective material adverse change, in or affecting particularly the business, properties, condition (financial or otherwise), results of operations or prospects of the Depositor or Trust has occurred, whether or not arising in the ordinary course of business.
(h) As of the Closing Date, (i) you shall have received evidence reasonably satisfactory to you that the Certificates have been rated “[ ]" by [▇▇▇▇▇’▇ Investors Service, Inc]. and “[ ]” by [Standard & Poor’s Ratings Group] [or other nationally recognized rating agency] and (ii) there shall not have been any public announcement that any such organization has under surveillance or review its rating of either the Certificates or rating of the Term Assets, in either case with a negative outlook.
(i) In your judgment, the subject matter of any amendment or supplement to the Registration Statement or the Prospectus filed or issued by or on behalf of the Depositor after the Execution Time shall not have materially impaired your ability to proceed with completion of the sale of and payment for the Certificates.
(j) You shall have received a certificate of the Trustee, signed by one or more duly authorized officers of the Trustee, dated the Closing Date, as to the due authorization, execution and delivery of the Corporate Trust Agreement by the Trustee and the due authentication and delivery of the Certificates by the Trustee thereunder.
(k) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Certificates, the Corporate Trust Agreement, any other operative documents relating to the Certificates and the form of the Registration Statement, the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all respects to [ ], as your counsel.
(l) You shall have received from counsel to the Trustee an opinion, addressed to you and dated as of the Closing Date, with respect to such matters as you may require and otherwise in form and substance satisfactory to the Underwriter you and in form and scope to counsel for the Underwriter, to the effect that:
(i) the Receivables Purchase Agreement creates a valid security interest in favor of the Company in AHFC’s right, title and interest in and to the Receivables transferred to the Company pursuant to the Receivables Purchase Agreement;
(ii) the Sale and Servicing Agreement creates a valid security interest in favor of the Trust in the Company’s right, title and interest in and to the Receivables transferred to the Trust pursuant to the Sale and Servicing Agreement;
(iii) the Indenture creates a valid security interest in favor of the Indenture Trustee in the Trust’s right, title and interest in and to the Receivables pledged to the Indenture Trustee pursuant to the Indenture;
(iv) the filing of the financing statements of Form UCC-1 naming (a) AHFC as debtor in favor of the Company, (b) the Company as debtor in favor of the Trust, and (c) the Trust as debtor in favor of the Indenture Trustee, in the respective offices, will be effective to perfect the security interests described in paragraphs (i), (ii) and (iii) above, and each such security interest will be prior to any security interest in the Receivables of any other creditor of AHFC, the Company or the Trust, respectively;
(v) the Trust Agreement is not reqyour counsel.
Appears in 1 contract
Sources: Underwriting Agreement (Structured Obligations Corp)
Conditions of the Obligations of the Underwriter. The obligations ------------------------------------------------ of the Underwriter to purchase and pay for the Notes on the Closing Date Certificates will be subject to the accuracy of the representations and warranties on the part of the Company and AHFC herein on the Closing DateBank herein, to the accuracy of the statements of Company and AHFC officers of the Bank made pursuant to the provisions hereof, to the performance by the Company and AHFC Bank of their respective its obligations hereunder and to the following additional conditions precedent:
(a) The Underwriter Prospectus and any supplements thereto shall have received a letter, dated been filed (if required) with the date hereof or Commission in accordance with the Closing Date, of KPMG LLP, in form rules and substance satisfactory to the Underwriter and counsel for the Underwriter, confirming that they are independent public accountants within the meaning of regulations under the Act and the applicable Rules and Regulations and stating in effect that (i) they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Trust, AHFC and the Company) set forth in the Registration Statement, the Preliminary Prospectus, each Prospectus (and any supplements thereto), agrees with the accounting records of the Trust, AHFC and the Company, excluding any questions of legal interpretationSection 1 hereof, and (ii) they have performed certain specified procedures with respect to the Receivables and certain static pool data (within the meaning of Item 1105 of Regulation AB under the Act) included on the website listed in the Preliminary Prospectus and the Prospectus.
(b) Prior prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the UnderwriterBank, shall be contemplated by the CommissionCommission or by any authority administering any state securities or blue sky law.
(b) On or prior to the date of the Prospectus and on or prior to the Closing Date, the Underwriter shall have received a letter or letters, dated as of the date of the Prospectus and as of the Closing Date, respectively, of Coopers & ▇▇▇▇▇▇▇ L.L.P., Certified Public Accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in or affecting particularly the business, properties, condition (financial business or otherwise) or results of operations properties of the Company Trust, or AHFC the Bank which, in the judgment of the Underwriter, materially impairs the investment quality of any Class of the Notes Certificates or makes it impractical or inadvisable to proceed with completion of market the public offering or the sale of and payment for any Class of the NotesCertificates; (ii) any suspension or limitation of on trading in securities generally on the New York Stock ExchangeExchange or the National Association of Securities Dealers National Market system, or any setting of minimum prices for trading on such exchangeexchange or market system; (iii) any suspension of trading of any securities of BANC ONE CORPORATION on any exchange or in the over-the-counter market which materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to market the Certificates; (iv) any banking moratorium declared by Federal, California Delaware or New York authorities; or (ivv) any outbreak or escalation of major hostilities in which the United States is involvedor armed conflict, any declaration of war by Congress Congress, or any other substantial national or international calamity or emergency if, in the judgment of the Underwriter, the effect of any such outbreak, escalation, declaration, calamity calamity, or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the NotesCertificates.
(d) At the Closing Date, the Bank shall have furnished to you certificates of a vice president or more senior officer of the Bank as to the accuracy of the representations and warranties of the Bank herein at and as of the Closing Date, as to the performance by the Bank of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to such other matters as you may reasonably request.
(e) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Associate General Counsel of First USA Bank, shall have furnished to you her written opinion, addressed to you and dated the Closing Date, in form and substance satisfactory to you and your counsel, substantially to the effect that:
(i) The Bank has been duly incorporated and is validly existing as a bank in good standing under the laws of the State of Delaware with full power and authority (corporate and other) to own its properties and conduct its business, as presently owned and conducted by it, and to enter into and per form its obligations under this Agreement, the Spread Account Agreement and the Pooling and Servicing Agreement (collectively referred to in this subsection (e) as the "Agreements"), and the Certificates and had ---------- at all times, and now has, the power, author- ity and legal right to acquire, own and transfer the Receivables;
(ii) The Bank is duly qualified to do business and is in good standing, and under state laws, as they are currently interpreted and enforced, has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would materially and adversely affect the enforce ability of any Receivable by the Bank or the Trustee or would adversely affect the ability of the Bank to perform its obligations under the Agreements or the Certificates;
(iii) The Certificates have been duly authorized, executed and delivered by the Bank and, when duly authenticated by the Trustee in accordance with the terms of the Pooling and Servicing Agreement and delivered to and paid for by the Underwriter in accordance with the terms of this Agreement, will be validly issued and outstanding and entitled to the benefits provided by the Pooling and Servicing Agreement;
(iv) Each of the Agreements has been duly authorized, executed and delivered by the Bank and constitutes the legal, valid and binding agreement of the Bank enforceable against the Bank in accordance with its terms, subject, as to enforceability to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws relating to or affecting the rights and remedies of creditors generally, and (B) the application of principles of equity (regardless of whether considered and applied in a proceeding in equity or at law) and the rights and powers of the FDIC;
(v) The Trust is not now, and immediately following the sale of the Certificates pursuant to the Underwriting Agreement will not be, required to register under the 1940 Act;
(vi) No consent, approval, authorization or order of any governmental agency or body is required for (A) the execution, delivery and performance by the Bank of its obligations under the Agreements or the Certificates, or (B) the issuance or sale of the Certificates, except such as have been obtained under the Act and as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Certificates by the Underwriter and the filing of Uniform Commercial Code financing statements with respect to the Receivables and the approval of the Office of the State Bank Commissioner of the State of Delaware;
(vii) To the best knowledge of such counsel, neither the execution and delivery of the Agreements or the Certificates by the Bank nor the performance by the Bank of the transactions therein contemplated nor the fulfillment of the terms thereof does or will result in any violation of any statute or regulation or any order or decree of any court or governmental authority binding upon the Bank or its property, or conflict with, or result in a breach or violation of any term or provision of, or result in a default under any of the terms and provisions of, the Bank's charter or by-laws or any material indenture, loan agreement or other material agreement to which the Bank is a party or by which the Bank is bound;
(viii) To the knowledge of such counsel after due investigation, there are no legal or governmental proceedings pending to which the Bank is a party or to which the Bank is subject which, individually or in the aggregate (A) would have a material adverse effect on the ability of the Bank to perform its obligations under the Agreements or the Certificates, (B) assert the invalidity of the Agreements or the Certificates, (C) seek to prevent the issuance, sale or delivery of the Certificates or any of the transactions contemplated by the Agreements or (D) seek to affect adversely the federal income tax or ▇▇▇▇▇ attributes of the Certificates de scribed in the Prospectus;
(ix) The Registration Statement and the Prospectus (except for the financial statements, financial schedules and other financial and operating data included therein, as to which such counsel expresses no view) comply as to form with the Act and the Rules and Regulations;
(x) The Registration Statement has become effective under the Act, and the Prospectus Supplement will be filed with the Commission pursuant to Rule 424(b) thereunder; and
(xi) Such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the information contained in the Registration Statement and Prospectus. Based upon discussion with the Bank, its accountants and others, however, no facts have come to its attention that cause it to believe that the Prospectus (except for the financial statements, financial schedules and other financial and statistical data included therein, as to which such counsel expresses no view), contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(f) You shall have received a letter from ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Bank, to the effect that you may rely on those provisions of their opinions to ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and Standard & Poor's Ratings Services, a division of The --------- ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard & Poor's") with respect to certain ----------------- matters relating to the transfer of the Receivables to the Trust, with respect to the perfection of the Trust's interest in the Receivables and with respect to other related matters.
(g) You shall have received an opinion of ▇▇▇▇▇▇▇, ForwardArps, ▇Slate, ▇▇▇▇▇▇▇ & Scripps ▇▇▇▇ LLP, special California counsel to the Company and AHFCBank, or of such other California counsel satisfactory addressed to the Underwriteryou, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the Underwriter effect that the Certificates will be treated as indebtedness for Federal income tax purposes and in form and scope to for Delaware income tax purposes.
(h) You shall have received from ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date, substantially to the effect that:
(i) Each of AHFC the Pooling and Servicing Agreement and the Company has Spread Account Agreement (collectively referred to in this subsection (h) as the corporate power "Agreements") constitutes the valid and corporate authority to execute and deliver the Receivables Purchase Agreement, and to incur its obligations set forth therein.
(ii) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Sale and Servicing Agreement, and to incur its obligations set forth therein.
(iii) Each of AHFC and the Company has the corporate power and corporate authority to carry on its business as described in the Prospectus.
(iv) The execution and delivery by AHFC of each binding obligation of the Basic Documents to which AHFC is a party---------- Bank, and enforceable against the incurring by AHFC of the obligations of AHFC thereunderBank in accordance with its terms, have been duly authorized by all necessary corporate action on the part of AHFC, and each of the Basic Documents to which AHFC is a party has been duly executed and delivered by AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, have been duly authorized by all necessary corporate action on the part of the Company, and each of the Basic Documents to which the Company is a party has been duly executed and delivered by the Company.
(v) The direction by the Company to the Indenture Trustee to authenticate the Notes, as set forth in a letter dated as of the Closing Date, and the direction by the Company to the Owner Trustee to execute and deliver to the Indenture Trustee for authentication the Notes, as set forth in a letter dated as of the Closing Date, have been duly authorized by all necessary corporate action on the part of the Company.
(vi) The direction by the Company to the Owner Trustee to authenticate and deliver the Certificates, as set forth in a letter dated as of the Closing Date, has been duly authorized by all necessary corporate action on the part of the Company.
(vii) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, do not violate any federal or California statute, rule or regulation applicable to AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, do not violate any federal or California statute, rule or regulation applicable to the Company.
(viii) Assuming that AHFC follows its standard operating procedures for creating and perfecting security interests in California Financed Vehicles, as described in an Officers’ Certificate executed by AHFC and attached hereto, and relying solely on such Officers’ Certificate with respect to such facts (and AHFC has not informed us that it has not followed, or that it will not continue to follow, its standard operating procedures in connection with the creation and perfection of security interests in the California Financed Vehicles), AHFC has acquired or will acquire a perfected security interest in each California Financed Vehicle that will be prior to any other security interest therein created under Division 9 of the California Uniform Commercial Code.
(ix) No filing or other action is necessary to maintain the perfection of the security interest in the California Financed Vehicles created by the California Receivables and acquired by the Company, the Trust or the Indenture Trustee, as applicable. Such counsel may note that unless and until the obligors under the California Receivables receive effective notice of the transfer to the Company, the Trust or the Indenture Trustee (as the case may be) and of the assignment of the rights to payment, such obligors are entitled to make payments to and accept releases and discharges from AHFC, and, for so long as AHFC is named as the legal owner and lienholder on any certificate of title with respect to any California Financed Vehicle, AHFC has the power to release the security interest in such California Financed Vehicle or to make another assignment of such security interest to an assignee that becomes the lienholder named on the related certificate of title, which power may be improperly exercised either through fraud or inadvertence;
except (x) No consent, approval, authorization or other action by, or filing with, any federal or California governmental authority, or any order or decree, or any modification of any order or decree, from any California court, is required for the execution and delivery by each of AHFC and the Company of each of the Basic Documents to which it is a party or the incurring of its obligations thereunder, or if required, the requisite consent, approval, or authorization has been obtained, the requisite filing has been accomplished, or the requisite action has been taken.
(xi) The statements in the Prospectus under the heading “Certain Legal Aspects of the Receivables,” to the extent that they constitute matters of State of California law or State of California legal conclusions, provide a fair and accurate summary in all material respects of such law or conclusions; provided, however, that we express no opinion with respect to statements in the next to last paragraph under the subheading “Consumer Protection Laws,” as to which the Company is receiving an opinion of counsel (from ▇▇▇▇▇▇ ▇▇▇▇, LLP), as described therein.
(e) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP, special counsel to the Company and AHFC, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) each of the Company and AHFC is validly existing and in good standing under the laws of the State of California;
(ii) when the Notes have been validly executed, authenticated and delivered in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter pursuant to this Agreement, the Notes will constitute valid and binding obligations of the Trust enforceable in accordance with their terms and entitled to the benefits of the Indenture, except that enforceability thereof may be subject to limited by (a) the effect of bankruptcy, insolvency, receivership, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ ' rights generally and the rights of creditors of Delaware chartered banks as the same may be applied in the event of the bankruptcy, insolvency, receivership, reorganization, moratorium or other similar event in respect of the Bank, (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity) and (c) the qualification that certain of the remedial provisions of the Agreements may be unenforceable in whole or in part, but the inclusion of such provisions does not affect the validity of the Agreements taken as a whole, and the Agreements, together with applicable law, contain adequate provisions for the practical realization of the benefits of the security created thereby and (y) such counsel expresses no opinion as to the enforceability of any rights to contribution or indemnification which are violative of public policy underlying any law, rule or regulation;
(ii) The Certificates, when executed and authenticated in accordance with the terms of the Pooling and Servicing Agree ment and delivered to and paid for by the Underwriter pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement;
(iii) the executionThis Agreement has been duly authorized, delivery executed and performance by each of the Company and AHFC of the Basic Documents to which it is a party will not violate or result in a material breach of any of the terms of or constitute a material default under or (except as contemplated in the Basic Documents) result in the creation of any lien, charge or encumbrance on any property or assets of the Company or AHFC, pursuant to the terms of any indenture, mortgage, deed of trust or other agreement described in an Officer’s Certificate or Certificates and schedules attached to such opinion (collectively, the “Material Agreements”). As to those Material Agreements which by their terms are or may be governed delivered by the laws of a jurisdiction other than New York, such counsel may assume that such Material Agreements are governed by the laws of the State of New York for purposes of such opinion. In addition, and in reliance upon a certificate of AHFC’s Chief Financial Officer or other accounting officer as to compliance with financial covenants, such counsel may exclude from the scope of such opinion any potential violation of financial covenants contained in such Material AgreementsBank;
(iv) no consentNeither the execution, approval, authorization delivery or order of, or filing with, any New York or federal governmental entity is required for performance by the execution and delivery by either Bank of the Company Agreements or AHFC this Agreement, nor the compliance by the Bank with the terms and provisions thereof or hereof, will contravene any provision of the Basic Documents to which it is a party or the performance by either of the Company or AHFC of the transactions contemplated thereby where the failure to make or obtain such consent or approval of, notice to, filing with, or other action by, or take such action would reasonably be expected to have a material adverse effect on the ability of such entity to perform its obligations under the Basic Documents, except for (i) the filing of UCC financing statements, (ii) filings and other actions that may be required pursuant to state securities or blue sky laws, and (iii) those that have already been obtained, made or takenany applicable law;
(v) Based on such counsel's review of applicable laws, no governmental approval, which has not been obtained or taken and is not in full force and effect, is required to authorize or is required in connection with the execution and execution, delivery by each or performance of the Company and AHFC of Agreements by the Basic Documents to which it is a party, the consummation of the transactions contemplated thereby and compliance with any of the provisions thereof by each of AHFC and the Company will not violate (i) any of the terms, conditions or provisions of the certificate of incorporation or bylaws of either of AHFC or the Company, each as amended, (ii) any federal or State of New York statute, rule or regulation applicable to AHFC or the Company (other than federal and state securities or blue sky laws, as to which such counsel need express no opinion with respect to this paragraph) or (iii) any judgment, written injunction, decree, order or ruling of any court or governmental authority binding on AHFC or the Company of which such counsel has knowledgeBank;
(vi) The Certificates, the Agreements and this Agreement conform in all material respects to the descriptions thereof contained in the Prospectus;
(vii) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust is not required to be registered under the 1940 Act;
(viii) The statements in the Prospectus under the heading "Certain Legal Aspects of the Receivables", to the extent that they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects; and
(ix) Each of the Registration Statement, as of its effective date, and the Prospectus, as of its date, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the General Rules and Regulations under the Act, except that in each case such counsel expresses no opinion as to the financial data included therein or excluded therefrom or the exhibits to the Registration Statement, and such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus. Such opinion shall also state that such counsel has participated in conferences with officers and representatives of the Bank, counsel for the Bank, representatives of the independent accountants of the Bank and the Underwriter at which the contents of the Prospectus and related matters were discussed and, although such counsel need not pass upon, and need not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Prospectus and shall have made no reason independent check or verification thereof, except for those made under the caption "Certain Legal Aspects of the Receivables" to the extent set forth in paragraph (viii) above, on the basis of the foregoing, no facts shall have come to such counsel's attention that shall have led such counsel to believe that the Registration Statement or any amendment theretoProspectus, as of the date of the Final Prospectus or as of the Closing Dateits date, contained any an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Preliminary Prospectus, together with the pricing information, as of its date, as of the Time of Sale and as of the Closing Date, or the Final Prospectus as of its date or as of the Closing Date, contains or contained any untrue statement of a material fact or omits or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood , except that such counsel need make no statement not express an opinion or express any opinion as belief with respect to the financial statements, schedules and other financial information included in such Prospectus or excluded therefrom nor with respect to statements or other financial, numerical, statistical and quantitative information contained omissions in the Registration Statement or a Prospectus, and that for purposes of determining Prospectus with respect to the date transfer of the Preliminary Class A Certificates and/or the Class B Certificates by the Underwriter into a trust or Final Prospectus, it shall be other type of special purpose vehicle or the date stated on the respective prospectus supplements thereto;
(vii) the Registration Statement and each Prospectus complies in all material respects with the requirements terms of the Act and trust's or special purpose vehicle's securities or the rules and regulations promulgated thereunder; and such counsel does not know of any contracts issuance or documents of a character required to be described in the Registration Statement or each Prospectus or to be filed as exhibits to the Registration Statement that are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus; and
(viii) assuming that the Receivables are in substantially one sale of the forms attached to such opinion, the Receivables constitute tangible “chattel paper” within the meaning of the California UCCtrust's or special purpose vehicle's securities.
(fi) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ ▇▇, Woods, Battle & Bird LLP▇▇▇▇▇▇, special L.L.P., counsel for The Bank of New York, a New York banking corporation ("BONY"), in connection with ---- the Agency Agreement dated as of December 4, 1995 between BONY and the Trustee (the "Agency Agreement"), and ---------------- counsel for the Trustee, shall have furnished to the Company you their written opinion, addressed to you and AHFC, dated the Closing Date and satisfactory Date, in form and substance satisfactory to the Underwriter you and in form and scope to counsel for the Underwriteryour counsel, substantially to the effect that:
(i) BONY is a banking corporation duly organized, validly existing and in good standing under the Receivables Purchase Agreement creates a valid security interest in favor laws of the Company in AHFC’s rightState of New York and has the corporate power and authority to execute, title deliver and interest in and to perform its obligations under the Receivables transferred to the Company pursuant to the Receivables Purchase Agency Agreement;
(ii) the Sale and Servicing Agreement creates a valid security interest in favor of the Trust in the Company’s right, title and interest in and to the Receivables transferred to the Trust Certificates have been duly authenticated by BONY pursuant to the Sale Agency Agreement and in accordance with the Pooling and Servicing Agreement;
(iii) the Indenture creates Trustee is a valid security interest banking corporation duly organized, validly existing and in favor good standing under the laws of the Indenture Trustee in State of Delaware and has the Trust’s right, title and interest in and to the Receivables pledged to the Indenture Trustee pursuant to the Indenture;
(iv) the filing of the financing statements of Form UCC-1 naming (a) AHFC as debtor in favor of the Company, (b) the Company as debtor in favor of the Trust, and (c) the Trust as debtor in favor of the Indenture Trustee, in the respective offices, will be effective to perfect the security interests described in paragraphs (i), (ii) and (iii) above, and each such security interest will be prior to any security interest in the Receivables of any other creditor of AHFC, the Company or the Trust, respectively;
(v) the Trust Agreement is not req
Appears in 1 contract
Sources: Underwriting Agreement (First Usa Credit Card Master Trust)
Conditions of the Obligations of the Underwriter. The obligations of the Underwriter to purchase and pay for the Notes on the Closing Date will be pursuant to this Agreement are subject to the accuracy on and as of the Closing Date of the representations and warranties on the part of the Company and AHFC Advanta herein on the Closing Datecontained, to the accuracy of the statements of Company and AHFC officers of Advanta made pursuant to the provisions hereofhereto, to the performance by the Company and AHFC Advanta of their respective all of its obligations hereunder and to the following additional conditions precedentat the Closing Date:
(a) The Underwriter shall have received a letter, dated the date hereof of delivery thereof (which, if the Effective Time is prior to the execution and delivery of this Agreement, shall be on or prior to the Closing Datedate of this Agreement or, if the Effective Time is subsequent to the execution and delivery of KPMG this Agreement, shall be prior to the filing of the amendment or post-effective amendment to the Registration Statement to be filed shortly prior to the Effective Time), from _____________________________ LLP, in form and substance satisfactory to the Underwriter and counsel for the Underwriter, confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and stating in effect that (i) they have performed certain specified procedures as a result of which they have determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Trust, AHFC Trust and the Company) Advanta set forth in the Registration Statement, Statement and the Preliminary Prospectus, each Prospectus (and any supplements thereto), agrees with the accounting records of the Trust, AHFC Trust and the CompanyAdvanta, excluding any questions of legal interpretation, and (ii) they have performed certain specified procedures with respect to the computer programs used to select the Receivables and certain static pool data (within to generate information with respect to the meaning of Item 1105 of Regulation AB under the Act) included on the website listed Receivables set forth in the Preliminary Prospectus Registration Statement and the Prospectus.
(b) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in or affecting particularly the business, properties, condition (financial or otherwise) or results of operations of the Company or AHFC which, in the judgment of the Underwriter, materially impairs the investment quality of any Class of the Notes or makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any banking moratorium declared by Federal, California or New York authorities; or (iv) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any substantial national or international calamity or emergency if, in the judgment of the Underwriter, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the Notes.
(d) The Underwriter shall have received an opinion of ▇▇▇▇, Forward, ▇▇▇▇▇▇▇▇ & Scripps LLP, special California counsel to the Company and AHFC, or of such other California counsel satisfactory to the Underwriter, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Receivables Purchase Agreement, and to incur its obligations set forth therein.
(ii) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Sale and Servicing Agreement, and to incur its obligations set forth therein.
(iii) Each of AHFC and the Company has the corporate power and corporate authority to carry on its business as described in the Prospectus.
(iv) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, have been duly authorized by all necessary corporate action on the part of AHFC, and each of the Basic Documents to which AHFC is a party has been duly executed and delivered by AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, have been duly authorized by all necessary corporate action on the part of the Company, and each of the Basic Documents to which the Company is a party has been duly executed and delivered by the Company.
(v) The direction by the Company to the Indenture Trustee to authenticate the Notes, as set forth in a letter dated as of the Closing Date, and the direction by the Company to the Owner Trustee to execute and deliver to the Indenture Trustee for authentication the Notes, as set forth in a letter dated as of the Closing Date, have been duly authorized by all necessary corporate action on the part of the Company.
(vi) The direction by the Company to the Owner Trustee to authenticate and deliver the Certificates, as set forth in a letter dated as of the Closing Date, has been duly authorized by all necessary corporate action on the part of the Company.
(vii) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, do not violate any federal or California statute, rule or regulation applicable to AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, do not violate any federal or California statute, rule or regulation applicable to the Company.
(viii) Assuming that AHFC follows its standard operating procedures for creating and perfecting security interests in California Financed Vehicles, as described in an Officers’ Certificate executed by AHFC and attached hereto, and relying solely on such Officers’ Certificate with respect to such facts (and AHFC has not informed us that it has not followed, or that it will not continue to follow, its standard operating procedures in connection with the creation and perfection of security interests in the California Financed Vehicles), AHFC has acquired or will acquire a perfected security interest in each California Financed Vehicle that will be prior to any other security interest therein created under Division 9 of the California Uniform Commercial Code.
(ix) No filing or other action is necessary to maintain the perfection of the security interest in the California Financed Vehicles created by the California Receivables and acquired by the Company, the Trust or the Indenture Trustee, as applicable. Such counsel may note that unless and until the obligors under the California Receivables receive effective notice of the transfer to the Company, the Trust or the Indenture Trustee (as the case may be) and of the assignment of the rights to payment, such obligors are entitled to make payments to and accept releases and discharges from AHFC, and, for so long as AHFC is named as the legal owner and lienholder on any certificate of title with respect to any California Financed Vehicle, AHFC has the power to release the security interest in such California Financed Vehicle or to make another assignment of such security interest to an assignee that becomes the lienholder named on the related certificate of title, which power may be improperly exercised either through fraud or inadvertence;
(x) No consent, approval, authorization or other action by, or filing with, any federal or California governmental authority, or any order or decree, or any modification of any order or decree, from any California court, is required for the execution and delivery by each of AHFC and the Company of each of the Basic Documents to which it is a party or the incurring of its obligations thereunder, or if required, the requisite consent, approval, or authorization has been obtained, the requisite filing has been accomplished, or the requisite action has been taken.
(xi) The statements in the Prospectus under the heading “Certain Legal Aspects of the Receivables,” to the extent that they constitute matters of State of California law or State of California legal conclusions, provide a fair and accurate summary in all material respects of such law or conclusions; provided, however, that we express no opinion with respect to statements in the next to last paragraph under the subheading “Consumer Protection Laws,” as to which the Company is receiving an opinion of counsel (from ▇▇▇▇▇▇ ▇▇▇▇, LLP), as described therein.
(e) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP, special counsel to the Company and AHFC, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) each of the Company and AHFC is validly existing and in good standing under the laws of the State of California;
(ii) when the Notes have been validly executed, authenticated and delivered in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter pursuant to this Agreement, the Notes will constitute valid and binding obligations of the Trust enforceable in accordance with their terms and entitled to the benefits of the Indenture, except that enforceability thereof may be subject to (a) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (b) general principles of equity regardless of whether such enforceability is considered in a proceeding at law or in equity;
(iii) the execution, delivery and performance by each of the Company and AHFC of the Basic Documents to which it is a party will not violate or result in a material breach of any of the terms of or constitute a material default under or (except as contemplated in the Basic Documents) result in the creation of any lien, charge or encumbrance on any property or assets of the Company or AHFC, pursuant to the terms of any indenture, mortgage, deed of trust or other agreement described in an Officer’s Certificate or Certificates and schedules attached to such opinion (collectively, the “Material Agreements”). As to those Material Agreements which by their terms are or may be governed by the laws of a jurisdiction other than New York, such counsel may assume that such Material Agreements are governed by the laws of the State of New York for purposes of such opinion. In addition, and in reliance upon a certificate of AHFC’s Chief Financial Officer or other accounting officer as to compliance with financial covenants, such counsel may exclude from the scope of such opinion any potential violation of financial covenants contained in such Material Agreements;
(iv) no consent, approval, authorization or order of, or filing with, any New York or federal governmental entity is required for the execution and delivery by either of the Company or AHFC of the Basic Documents to which it is a party or the performance by either of the Company or AHFC of the transactions contemplated thereby where the failure to make or obtain such consent or approval of, notice to, filing with, or other action by, or take such action would reasonably be expected to have a material adverse effect on the ability of such entity to perform its obligations under the Basic Documents, except for (i) the filing of UCC financing statements, (ii) filings and other actions that may be required pursuant to state securities or blue sky laws, and (iii) those that have already been obtained, made or taken;
(v) the execution and delivery by each of the Company and AHFC of the Basic Documents to which it is a party, the consummation of the transactions contemplated thereby and compliance with any of the provisions thereof by each of AHFC and the Company will not violate (i) any of the terms, conditions or provisions of the certificate of incorporation or bylaws of either of AHFC or the Company, each as amended, (ii) any federal or State of New York statute, rule or regulation applicable to AHFC or the Company (other than federal and state securities or blue sky laws, as to which such counsel need express no opinion with respect to this paragraph) or (iii) any judgment, written injunction, decree, order or ruling of any court or governmental authority binding on AHFC or the Company of which such counsel has knowledge;
(vi) such counsel has no reason to believe that the Registration Statement or any amendment thereto, as of the date of the Final Prospectus or as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Preliminary Prospectus, together with the pricing information, as of its date, as of the Time of Sale and as of the Closing Date, or the Final Prospectus as of its date or as of the Closing Date, contains or contained any untrue statement of a material fact or omits or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need make no statement or express any opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus, and that for purposes of determining the date of the Preliminary or Final Prospectus, it shall be the date stated on the respective prospectus supplements thereto;
(vii) the Registration Statement and each Prospectus complies in all material respects with the requirements of the Act and the rules and regulations promulgated thereunder; and such counsel does not know of any contracts or documents of a character required to be described in the Registration Statement or each Prospectus or to be filed as exhibits to the Registration Statement that are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus; and
(viii) assuming that the Receivables are in substantially one of the forms attached to such opinion, the Receivables constitute tangible “chattel paper” within the meaning of the California UCC.
(f) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP, special counsel to the Company and AHFC, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) the Receivables Purchase Agreement creates a valid security interest in favor of the Company in AHFC’s right, title and interest in and to the Receivables transferred to the Company pursuant to the Receivables Purchase Agreement;
(ii) the Sale and Servicing Agreement creates a valid security interest in favor of the Trust in the Company’s right, title and interest in and to the Receivables transferred to the Trust pursuant to the Sale and Servicing Agreement;
(iii) the Indenture creates a valid security interest in favor of the Indenture Trustee in the Trust’s right, title and interest in and to the Receivables pledged to the Indenture Trustee pursuant to the Indenture;
(iv) the filing of the financing statements of Form UCC-1 naming (a) AHFC as debtor in favor of the Company, (b) the Company as debtor in favor of the Trust, and (c) the Trust as debtor in favor of the Indenture Trustee, in the respective offices, will be effective to perfect the security interests described in paragraphs (i), (ii) and (iii) above, and each such security interest will be prior to any security interest in the Receivables of any other creditor of AHFC, the Company or the Trust, respectively;
(v) the Trust Agreement is not req
Appears in 1 contract
Conditions of the Obligations of the Underwriter. The obligations of the Underwriter to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities on each Optional Closing Date will be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and AHFC herein on the Closing DateSelling Securityholders herein, to the accuracy in all material respects of the statements of Company and AHFC officers made pursuant to the provisions hereof, to the performance in all material respects by the Company and AHFC the Selling Securityholders of their respective obligations hereunder and to the following additional conditions precedent:
(a) The Prior to the First Closing Date, the Underwriter shall have received a letter, dated the date hereof or the Closing Dateof this Agreement, of KPMG LLP, in form and substance satisfactory to the Underwriter and counsel for the Underwriter, PricewaterhouseCoopers LLP confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder, in form and stating in effect that (i) they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Trust, AHFC and the Company) set forth in the Registration Statement, the Preliminary Prospectus, each Prospectus (and any supplements thereto), agrees with the accounting records of the Trust, AHFC and the Company, excluding any questions of legal interpretation, and (ii) they have performed certain specified procedures with respect substance reasonably acceptable to the Receivables and certain static pool data (within the meaning of Item 1105 of Regulation AB under the Act) included on the website listed in the Preliminary Prospectus and the ProspectusUnderwriter.
(b) Prior to The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. As of such Closing Date, no stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company Company, the Selling Securityholders or the Underwriter, shall be contemplated threatened by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or affecting particularly the other), business, properties, condition (financial or otherwise) prospects or results of operations of the Company or AHFC and its Subsidiaries taken as one enterprise which, in the judgment of the Underwriter, is materially impairs the investment quality of any Class of the Notes or adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the NotesOffered Securities; (ii) any downgrading in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company or any of its Subsidiaries (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Underwriter, be likely to prejudice materially the success of the proposed issue, sale or disposition of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, Exchange or any setting of minimum prices for trading on such exchange; (iiiv) or any suspension of trading of any securities of the Company or any of its Subsidiaries on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by Federal, California U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States or (ivviii) any attack on, outbreak or escalation of major hostilities in which or act of terrorism involving the United States is involvedStates, any declaration of war by Congress or any substantial other national or international calamity or emergency if, in the judgment of the Underwriter, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the NotesOffered Securities.
(d) The Underwriter shall have received an opinion opinion, dated such Closing Date, of ▇▇▇▇, Forward, ▇▇▇▇▇▇▇▇ & Scripps LLP, special California counsel to the Company and AHFC, or of such other California counsel satisfactory to the Underwriter, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Receivables Purchase Agreement, and to incur its obligations set forth therein.
(ii) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Sale and Servicing Agreement, and to incur its obligations set forth therein.
(iii) Each of AHFC and the Company has the corporate power and corporate authority to carry on its business as described in the Prospectus.
(iv) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, have been duly authorized by all necessary corporate action on the part of AHFC, and each of the Basic Documents to which AHFC is a party has been duly executed and delivered by AHFC▇. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, have been duly authorized by all necessary corporate action on the part of the Company, and each of the Basic Documents to which the Company is a party has been duly executed and delivered by the Company.
(v) The direction by the Company to the Indenture Trustee to authenticate the Notes, as set forth in a letter dated as of the Closing Date, and the direction by the Company to the Owner Trustee to execute and deliver to the Indenture Trustee for authentication the Notes, as set forth in a letter dated as of the Closing Date, have been duly authorized by all necessary corporate action on the part of the Company.
(vi) The direction by the Company to the Owner Trustee to authenticate and deliver the Certificates, as set forth in a letter dated as of the Closing Date, has been duly authorized by all necessary corporate action on the part of the Company.
(vii) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, do not violate any federal or California statute, rule or regulation applicable to AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, do not violate any federal or California statute, rule or regulation applicable to the Company.
(viii) Assuming that AHFC follows its standard operating procedures for creating and perfecting security interests in California Financed Vehicles, as described in an Officers’ Certificate executed by AHFC and attached hereto, and relying solely on such Officers’ Certificate with respect to such facts (and AHFC has not informed us that it has not followed, or that it will not continue to follow, its standard operating procedures in connection with the creation and perfection of security interests in the California Financed Vehicles), AHFC has acquired or will acquire a perfected security interest in each California Financed Vehicle that will be prior to any other security interest therein created under Division 9 of the California Uniform Commercial Code.
(ix) No filing or other action is necessary to maintain the perfection of the security interest in the California Financed Vehicles created by the California Receivables and acquired by the Company, the Trust or the Indenture Trustee, as applicable. Such counsel may note that unless and until the obligors under the California Receivables receive effective notice of the transfer to the Company, the Trust or the Indenture Trustee (as the case may be) and of the assignment of the rights to payment, such obligors are entitled to make payments to and accept releases and discharges from AHFC, and, for so long as AHFC is named as the legal owner and lienholder on any certificate of title with respect to any California Financed Vehicle, AHFC has the power to release the security interest in such California Financed Vehicle or to make another assignment of such security interest to an assignee that becomes the lienholder named on the related certificate of title, which power may be improperly exercised either through fraud or inadvertence;
(x) No consent, approval, authorization or other action by, or filing with, any federal or California governmental authority, or any order or decree, or any modification of any order or decree, from any California court, is required for the execution and delivery by each of AHFC and the Company of each of the Basic Documents to which it is a party or the incurring of its obligations thereunder, or if required, the requisite consent, approval, or authorization has been obtained, the requisite filing has been accomplished, or the requisite action has been taken.
(xi) The statements in the Prospectus under the heading “Certain Legal Aspects of the Receivables,” to the extent that they constitute matters of State of California law or State of California legal conclusions, provide a fair and accurate summary in all material respects of such law or conclusions; provided, however, that we express no opinion with respect to statements in the next to last paragraph under the subheading “Consumer Protection Laws,” as to which the Company is receiving an opinion of counsel (from ▇▇▇▇▇▇ ▇▇▇▇, LLP)counsel of the Company, as described thereinin form and substance reasonably satisfactory to the Underwriter and its counsel.
(e) The Underwriter shall have received an opinion opinion, dated such Closing Date, of ▇▇▇▇▇▇ & Bird and ▇▇▇▇▇ LLP, special counsel to for the Company and AHFCCompany, dated the Closing Date and satisfactory in form and substance reasonably satisfactory to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) each of the Company and AHFC is validly existing and in good standing under the laws of the State of California;
(ii) when the Notes have been validly executed, authenticated and delivered in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter pursuant to this Agreement, the Notes will constitute valid and binding obligations of the Trust enforceable in accordance with their terms and entitled to the benefits of the Indenture, except that enforceability thereof may be subject to (a) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (b) general principles of equity regardless of whether such enforceability is considered in a proceeding at law or in equity;
(iii) the execution, delivery and performance by each of the Company and AHFC of the Basic Documents to which it is a party will not violate or result in a material breach of any of the terms of or constitute a material default under or (except as contemplated in the Basic Documents) result in the creation of any lien, charge or encumbrance on any property or assets of the Company or AHFC, pursuant to the terms of any indenture, mortgage, deed of trust or other agreement described in an Officer’s Certificate or Certificates and schedules attached to such opinion (collectively, the “Material Agreements”). As to those Material Agreements which by their terms are or may be governed by the laws of a jurisdiction other than New York, such counsel may assume that such Material Agreements are governed by the laws of the State of New York for purposes of such opinion. In addition, and in reliance upon a certificate of AHFC’s Chief Financial Officer or other accounting officer as to compliance with financial covenants, such counsel may exclude from the scope of such opinion any potential violation of financial covenants contained in such Material Agreements;
(iv) no consent, approval, authorization or order of, or filing with, any New York or federal governmental entity is required for the execution and delivery by either of the Company or AHFC of the Basic Documents to which it is a party or the performance by either of the Company or AHFC of the transactions contemplated thereby where the failure to make or obtain such consent or approval of, notice to, filing with, or other action by, or take such action would reasonably be expected to have a material adverse effect on the ability of such entity to perform its obligations under the Basic Documents, except for (i) the filing of UCC financing statements, (ii) filings and other actions that may be required pursuant to state securities or blue sky laws, and (iii) those that have already been obtained, made or taken;
(v) the execution and delivery by each of the Company and AHFC of the Basic Documents to which it is a party, the consummation of the transactions contemplated thereby and compliance with any of the provisions thereof by each of AHFC and the Company will not violate (i) any of the terms, conditions or provisions of the certificate of incorporation or bylaws of either of AHFC or the Company, each as amended, (ii) any federal or State of New York statute, rule or regulation applicable to AHFC or the Company (other than federal and state securities or blue sky laws, as to which such counsel need express no opinion with respect to this paragraph) or (iii) any judgment, written injunction, decree, order or ruling of any court or governmental authority binding on AHFC or the Company of which such counsel has knowledge;
(vi) such counsel has no reason to believe that the Registration Statement or any amendment thereto, as of the date of the Final Prospectus or as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Preliminary Prospectus, together with the pricing information, as of its date, as of the Time of Sale and as of the Closing Date, or the Final Prospectus as of its date or as of the Closing Date, contains or contained any untrue statement of a material fact or omits or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need make no statement or express any opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus, and that for purposes of determining the date of the Preliminary or Final Prospectus, it shall be the date stated on the respective prospectus supplements thereto;
(vii) the Registration Statement and each Prospectus complies in all material respects with the requirements of the Act and the rules and regulations promulgated thereunder; and such counsel does not know of any contracts or documents of a character required to be described in the Registration Statement or each Prospectus or to be filed as exhibits to the Registration Statement that are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus; and
(viii) assuming that the Receivables are in substantially one of the forms attached to such opinion, the Receivables constitute tangible “chattel paper” within the meaning of the California UCCcounsel.
(f) The Underwriter shall have received an opinion opinion, dated such Closing Date, of ▇▇▇▇▇▇ & Bird ▇▇▇▇▇▇▇ LLP, special counsel to for the Company and AHFCSelling Securityholders, dated the Closing Date and satisfactory in form and substance reasonably satisfactory to the Underwriter and in form and scope to its counsel.
(g) The Underwriter shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions, dated such Closing Date, with respect to the effect incorporation of the Company, the validity of the Offered Securities, the Registration Statement, the Prospectus and other related matters as the Underwriter may require, and the Company and the Selling Securityholders shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(h) The Underwriter shall have received a certificate, dated such Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company in this Agreement are true and correct in all material respects, that the Company has complied in all material respects with all agreements and satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date, that no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission and that:, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change in the condition (financial or other), business, properties, prospects or results of operations of the Company and its Subsidiaries taken as a whole, except as set forth or contemplated in the Prospectus.
(i) the Receivables Purchase Agreement creates The Underwriter shall have received a valid security interest in favor certificate, dated such Closing Date, of the Company President or any Vice President and a principal financial or accounting officer of the Selling Securityholders in AHFC’s rightwhich such officers, title and interest in and to the Receivables transferred best of their knowledge and after reasonable investigation and in their capacity as such officers, on behalf of the Selling Securityholders, shall state that: all the representations and warranties of the Selling Securityholders contained in this Agreement are true and correct on the date hereof with the same force and effect as if made on and as of the date hereof; and the Selling Securityholders have complied with all of the agreements and satisfied all conditions on its part contained in this Agreement and required to be complied with or satisfied by the Company pursuant Selling Securityholders on or prior to the Receivables Purchase Agreement;such Closing Date.
(iij) The “lock-up” agreements between the Sale Underwriter and Servicing Agreement creates a valid security interest in favor of the Trust in the Company’s right, title the Selling Securityholders, ▇▇▇▇▇ ▇. ▇▇▇▇ and interest ▇▇▇▇▇ ▇. ▇▇▇▇▇, delivered to you on or before the date hereof, shall be in full force and to the Receivables transferred to the Trust pursuant to the Sale and Servicing Agreement;effect on such Closing Date.
(iiik) The Underwriter shall have received a letter, dated such Closing Date, of PricewaterhouseCoopers LLP which meets the Indenture creates a valid security interest in favor requirements of the Indenture Trustee in the Trust’s right, title and interest in and to the Receivables pledged to the Indenture Trustee pursuant to the Indenture;
(iv) the filing of the financing statements of Form UCC-1 naming subsection (a) AHFC of this Section, except that the specified date referred to in such subsection will be such Closing Date. The Company and the Selling Securityholders will furnish the Underwriter with such conformed copies of such opinions, certificates, letters and documents as debtor in favor the Underwriter reasonably request. The Underwriter may waive compliance with any conditions to the obligations of the Company, (b) the Company as debtor in favor of the Trust, and (c) the Trust as debtor in favor of the Indenture Trustee, in the respective offices, will be effective to perfect the security interests described in paragraphs (i), (ii) and (iii) above, and each such security interest will be prior to any security interest in the Receivables of any other creditor of AHFC, the Company or the Trust, respectively;
(v) the Trust Agreement is not reqUnderwriter under this Agreement.
Appears in 1 contract
Sources: Underwriting Agreement (Aviall Inc)
Conditions of the Obligations of the Underwriter. The obligations ------------------------------------------------ of the Underwriter to purchase and pay for the Notes on the Closing Date Certificates will be subject to the accuracy of the representations and warranties on the part of the Company and AHFC herein on the Closing DateBank herein, to the accuracy of the statements of Company and AHFC officers of the Bank made pursuant to the provisions hereof, to the performance by the Company and AHFC Bank of their respective its obligations hereunder and to the following additional conditions precedent:
(a) The Underwriter Prospectus and any supplements thereto shall have received a letter, dated been filed (if required) with the date hereof or Commission in accordance with the Closing Date, of KPMG LLP, in form rules and substance satisfactory to the Underwriter and counsel for the Underwriter, confirming that they are independent public accountants within the meaning of regulations under the Act and the applicable Rules and Regulations and stating in effect that (i) they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Trust, AHFC and the Company) set forth in the Registration Statement, the Preliminary Prospectus, each Prospectus (and any supplements thereto), agrees with the accounting records of the Trust, AHFC and the Company, excluding any questions of legal interpretationSection 1 hereof, and (ii) they have performed certain specified procedures with respect to the Receivables and certain static pool data (within the meaning of Item 1105 of Regulation AB under the Act) included on the website listed in the Preliminary Prospectus and the Prospectus.
(b) Prior prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the UnderwriterBank, shall be contemplated by the CommissionCommission or by any authority administering any state securities or blue sky law.
(b) On or prior to the date of the Prospectus and on or prior to the Closing Date, the Underwriter shall have received a letter or letters, dated as of the date of the Prospectus and as of the Closing Date, respectively, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., Certified Public Accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in or affecting particularly the business, properties, condition (financial business or otherwise) or results of operations properties of the Company Trust, or AHFC the Bank which, in the judgment of the Underwriter, materially impairs the investment quality of any Class of the Notes Certificates or makes it impractical or inadvisable to proceed with completion of market the public offering or the sale of and payment for any Class of the NotesCertificates; (ii) any suspension or limitation of on trading in securities generally on the New York Stock ExchangeExchange or the National Association of Securities Dealers National Market system, or any setting of minimum prices for trading on such exchangeexchange or market system; (iii) any suspension of trading of any securities of BANC ONE CORPORATION on any exchange or in the over-the-counter market which materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to market the Certificates; (iv) any banking moratorium declared by Federal, California Delaware or New York authorities; or (ivv) any outbreak or escalation of major hostilities in which the United States is involvedor armed conflict, any declaration of war by Congress Congress, or any other substantial national or international calamity or emergency if, in the judgment of the Underwriter, the effect of any such outbreak, escalation, declaration, calamity calamity, or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for any Class of the NotesCertificates.
(d) At the Closing Date, the Bank shall have furnished to you certificates of a vice president or more senior officer of the Bank as to the accuracy of the representations and warranties of the Bank herein at and as of the Closing Date, as to the performance by the Bank of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to such other matters as you may reasonably request.
(e) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Associate General Counsel of First USA Bank, shall have furnished to you her written opinion, addressed to you and dated the Closing Date, in form and substance satisfactory to you and your counsel, substantially to the effect that:
(i) The Bank has been duly incorporated and is validly existing as a bank in good standing under the laws of the State of Delaware with full power and authority (corporate and other) to own its properties and conduct its business, as presently owned and conducted by it, and to enter into and perform its obligations under this Agreement, the Spread Account Agreement and the Pooling and Servicing Agreement (collectively referred to in this subsection (e) as the "Agreements"), and the Certificates and had at ---------- all times, and now has, the power, authority and legal right to acquire, own and transfer the Receivables;
(ii) The Bank is duly qualified to do business and is in good standing, and under state laws, as they are currently interpreted and enforced, has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would materially and adversely affect the enforceability of any Receivable by the Bank or the Trustee or would adversely affect the ability of the Bank to perform its obligations under the Agreements or the Certificates;
(iii) The Certificates have been duly authorized, executed and delivered by the Bank and, when duly authenticated by the Trustee in accordance with the terms of the Pooling and Servicing Agreement and delivered to and paid for by the Underwriter in accordance with the terms of this Agreement, will be validly issued and outstanding and entitled to the benefits provided by the Pooling and Servicing Agreement;
(iv) Each of the Agreements has been duly authorized, executed and delivered by the Bank and constitutes the legal, valid and binding agreement of the Bank enforceable against the Bank in accordance with its terms, subject, as to enforceability to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws relating to or affecting the rights and remedies of creditors generally, and (B) the application of principles of equity (regardless of whether considered and applied in a proceeding in equity or at law) and the rights and powers of the FDIC;
(v) The Trust is not now, and immediately following the sale of the Certificates pursuant to the Underwriting Agreement will not be, required to register under the 1940 Act;
(vi) No consent, approval, authorization or order of any governmental agency or body is required for (A) the execution, delivery and performance by the Bank of its obligations under the Agreements or the Certificates, or (B) the issuance or sale of the Certificates, except such as have been obtained under the Act and as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Certificates by the Underwriter and the filing of Uniform Commercial Code financing statements with respect to the Receivables and the approval of the Office of the State Bank Commissioner of the State of Delaware;
(vii) To the best knowledge of such counsel, neither the execution and delivery of the Agreements or the Certificates by the Bank nor the performance by the Bank of the transactions therein contemplated nor the fulfillment of the terms thereof does or will result in any violation of any statute or regulation or any order or decree of any court or governmental authority binding upon the Bank or its property, or conflict with, or result in a breach or violation of any term or provision of, or result in a default under any of the terms and provisions of, the Bank's charter or by-laws or any material indenture, loan agreement or other material agreement to which the Bank is a party or by which the Bank is bound;
(viii) To the knowledge of such counsel after due investigation, there are no legal or governmental proceedings pending to which the Bank is a party or to which the Bank is subject which, individually or in the aggregate (A) would have a material adverse effect on the ability of the Bank to perform its obligations under the Agreements or the Certificates, (B) assert the invalidity of the Agreements or the Certificates, (C) seek to prevent the issuance, sale or delivery of the Certificates or any of the transactions contemplated by the Agreements or (D) seek to affect adversely the federal income tax or ERISA attributes of the Certificates described in the Prospectus;
(ix) The Registration Statement and the Prospectus (except for the financial statements, financial schedules and other financial and operating data included therein, as to which such counsel expresses no view) comply as to form with the Act and the Rules and Regulations;
(x) The Registration Statement has become effective under the Act, and the Prospectus Supplement will be filed with the Commission pursuant to Rule 424(b) thereunder; and
(xi) Such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the information contained in the Registration Statement and Prospectus. Based upon discussion with the Bank, its accountants and others, however, no facts have come to its attention that cause it to believe that the Prospectus (except for the financial statements, financial schedules and other financial and statistical data included therein, as to which such counsel expresses no view), contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(f) You shall have received a letter from ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Bank, to the effect that you may rely on those provisions of their opinions to ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and Standard & Poor's Ratings Services, a division of The McGraw- -------- Hill Companies, Inc. ("Standard & Poor's") with respect to certain matters ----------------- relating to the transfer of the Receivables to the Trust, with respect to the perfection of the Trust's interest in the Receivables and with respect to other related matters.
(g) You shall have received an opinion of ▇▇▇▇▇▇▇, ForwardArps, ▇Slate, ▇▇▇▇▇▇▇ & Scripps ▇▇▇▇ LLP, special California counsel to the Company and AHFCBank, or of such other California counsel satisfactory addressed to the Underwriteryou, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the Underwriter effect that the Certificates will be treated as indebtedness for Federal income tax purposes and in form and scope to for Delaware income tax purposes.
(h) You shall have received from ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date, substantially to the effect that:
(i) Each of AHFC the Pooling and Servicing Agreement and the Company has Spread Account Agreement (collectively referred to in this subsection (h) as the corporate power "Agreements") constitutes the valid and corporate authority to execute and deliver the Receivables Purchase Agreement, and to incur its obligations set forth therein.
(ii) Each of AHFC and the Company has the corporate power and corporate authority to execute and deliver the Sale and Servicing Agreement, and to incur its obligations set forth therein.
(iii) Each of AHFC and the Company has the corporate power and corporate authority to carry on its business as described in the Prospectus.
(iv) The execution and delivery by AHFC of each binding obligation of the Basic Documents to which AHFC is a partyBank, and ----------- enforceable against the incurring by AHFC of the obligations of AHFC thereunderBank in accordance with its terms, have been duly authorized by all necessary corporate action on the part of AHFC, and each of the Basic Documents to which AHFC is a party has been duly executed and delivered by AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, have been duly authorized by all necessary corporate action on the part of the Company, and each of the Basic Documents to which the Company is a party has been duly executed and delivered by the Company.
(v) The direction by the Company to the Indenture Trustee to authenticate the Notes, as set forth in a letter dated as of the Closing Date, and the direction by the Company to the Owner Trustee to execute and deliver to the Indenture Trustee for authentication the Notes, as set forth in a letter dated as of the Closing Date, have been duly authorized by all necessary corporate action on the part of the Company.
(vi) The direction by the Company to the Owner Trustee to authenticate and deliver the Certificates, as set forth in a letter dated as of the Closing Date, has been duly authorized by all necessary corporate action on the part of the Company.
(vii) The execution and delivery by AHFC of each of the Basic Documents to which AHFC is a party, and the incurring by AHFC of the obligations of AHFC thereunder, do not violate any federal or California statute, rule or regulation applicable to AHFC. The execution and delivery by the Company of each of the Basic Documents to which the Company is a party, and the incurring by the Company of the obligations of the Company thereunder, do not violate any federal or California statute, rule or regulation applicable to the Company.
(viii) Assuming that AHFC follows its standard operating procedures for creating and perfecting security interests in California Financed Vehicles, as described in an Officers’ Certificate executed by AHFC and attached hereto, and relying solely on such Officers’ Certificate with respect to such facts (and AHFC has not informed us that it has not followed, or that it will not continue to follow, its standard operating procedures in connection with the creation and perfection of security interests in the California Financed Vehicles), AHFC has acquired or will acquire a perfected security interest in each California Financed Vehicle that will be prior to any other security interest therein created under Division 9 of the California Uniform Commercial Code.
(ix) No filing or other action is necessary to maintain the perfection of the security interest in the California Financed Vehicles created by the California Receivables and acquired by the Company, the Trust or the Indenture Trustee, as applicable. Such counsel may note that unless and until the obligors under the California Receivables receive effective notice of the transfer to the Company, the Trust or the Indenture Trustee (as the case may be) and of the assignment of the rights to payment, such obligors are entitled to make payments to and accept releases and discharges from AHFC, and, for so long as AHFC is named as the legal owner and lienholder on any certificate of title with respect to any California Financed Vehicle, AHFC has the power to release the security interest in such California Financed Vehicle or to make another assignment of such security interest to an assignee that becomes the lienholder named on the related certificate of title, which power may be improperly exercised either through fraud or inadvertence;
except (x) No consent, approval, authorization or other action by, or filing with, any federal or California governmental authority, or any order or decree, or any modification of any order or decree, from any California court, is required for the execution and delivery by each of AHFC and the Company of each of the Basic Documents to which it is a party or the incurring of its obligations thereunder, or if required, the requisite consent, approval, or authorization has been obtained, the requisite filing has been accomplished, or the requisite action has been taken.
(xi) The statements in the Prospectus under the heading “Certain Legal Aspects of the Receivables,” to the extent that they constitute matters of State of California law or State of California legal conclusions, provide a fair and accurate summary in all material respects of such law or conclusions; provided, however, that we express no opinion with respect to statements in the next to last paragraph under the subheading “Consumer Protection Laws,” as to which the Company is receiving an opinion of counsel (from ▇▇▇▇▇▇ ▇▇▇▇, LLP), as described therein.
(e) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & Bird LLP, special counsel to the Company and AHFC, dated the Closing Date and satisfactory in form and substance to the Underwriter and in form and scope to counsel for the Underwriter, to the effect that:
(i) each of the Company and AHFC is validly existing and in good standing under the laws of the State of California;
(ii) when the Notes have been validly executed, authenticated and delivered in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter pursuant to this Agreement, the Notes will constitute valid and binding obligations of the Trust enforceable in accordance with their terms and entitled to the benefits of the Indenture, except that enforceability thereof may be subject to limited by (a) the effect of bankruptcy, insolvency, receivership, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ ' rights generally and the rights of creditors of Delaware chartered banks as the same may be applied in the event of the bankruptcy, insolvency, receivership, reorganization, moratorium or other similar event in respect of the Bank, (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity) and (c) the qualification that certain of the remedial provisions of the Agreements may be unenforceable in whole or in part, but the inclusion of such provisions does not affect the validity of the Agreements taken as a whole, and the Agreements, together with applicable law, contain adequate provisions for the practical realization of the benefits of the security created thereby and (y) such counsel expresses no opinion as to the enforceability of any rights to contribution or indemnification which are violative of public policy underlying any law, rule or regulation;
(ii) The Certificates, when executed and authenticated in accordance with the terms of the Pooling and Servicing Agreement and delivered to and paid for by the Underwriter pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement;
(iii) the executionThis Agreement has been duly authorized, delivery executed and performance by each of the Company and AHFC of the Basic Documents to which it is a party will not violate or result in a material breach of any of the terms of or constitute a material default under or (except as contemplated in the Basic Documents) result in the creation of any lien, charge or encumbrance on any property or assets of the Company or AHFC, pursuant to the terms of any indenture, mortgage, deed of trust or other agreement described in an Officer’s Certificate or Certificates and schedules attached to such opinion (collectively, the “Material Agreements”). As to those Material Agreements which by their terms are or may be governed delivered by the laws of a jurisdiction other than New York, such counsel may assume that such Material Agreements are governed by the laws of the State of New York for purposes of such opinion. In addition, and in reliance upon a certificate of AHFC’s Chief Financial Officer or other accounting officer as to compliance with financial covenants, such counsel may exclude from the scope of such opinion any potential violation of financial covenants contained in such Material AgreementsBank;
(iv) no consentNeither the execution, approval, authorization delivery or order of, or filing with, any New York or federal governmental entity is required for performance by the execution and delivery by either Bank of the Company Agreements or AHFC this Agreement, nor the compliance by the Bank with the terms and provisions thereof or hereof, will contravene any provision of the Basic Documents to which it is a party or the performance by either of the Company or AHFC of the transactions contemplated thereby where the failure to make or obtain such consent or approval of, notice to, filing with, or other action by, or take such action would reasonably be expected to have a material adverse effect on the ability of such entity to perform its obligations under the Basic Documents, except for (i) the filing of UCC financing statements, (ii) filings and other actions that may be required pursuant to state securities or blue sky laws, and (iii) those that have already been obtained, made or takenany applicable law;
(v) Based on such counsel's review of applicable laws, no governmental approval, which has not been obtained or taken and is not in full force and effect, is required to authorize or is required in connection with the execution and execution, delivery by each or performance of the Company and AHFC of Agreements by the Basic Documents to which it is a party, the consummation of the transactions contemplated thereby and compliance with any of the provisions thereof by each of AHFC and the Company will not violate (i) any of the terms, conditions or provisions of the certificate of incorporation or bylaws of either of AHFC or the Company, each as amended, (ii) any federal or State of New York statute, rule or regulation applicable to AHFC or the Company (other than federal and state securities or blue sky laws, as to which such counsel need express no opinion with respect to this paragraph) or (iii) any judgment, written injunction, decree, order or ruling of any court or governmental authority binding on AHFC or the Company of which such counsel has knowledgeBank;
(vi) The Certificates, the Agreements and this Agreement conform in all material respects to the descriptions thereof contained in the Prospectus;
(vii) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust is not required to be registered under the 1940 Act;
(viii) The statements in the Prospectus under the heading "Certain Legal Aspects of the Receivables", to the extent that they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects; and
(ix) Each of the Registration Statement, as of its effective date, and the Prospectus, as of its date, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the General Rules and Regulations under the Act, except that in each case such counsel expresses no opinion as to the financial data included therein or excluded therefrom or the exhibits to the Registration Statement, and such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus. Such opinion shall also state that such counsel has participated in conferences with officers and representatives of the Bank, counsel for the Bank, representatives of the independent accountants of the Bank and the Underwriter at which the contents of the Prospectus and related matters were discussed and, although such counsel need not pass upon, and need not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Prospectus and shall have made no reason independent check or verification thereof, except for those made under the caption "Certain Legal Aspects of the Receivables" to the extent set forth in paragraph (viii) above, on the basis of the foregoing, no facts shall have come to such counsel's attention that shall have led such counsel to believe that the Registration Statement or any amendment theretoProspectus, as of the date of the Final Prospectus or as of the Closing Dateits date, contained any an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Preliminary Prospectus, together with the pricing information, as of its date, as of the Time of Sale and as of the Closing Date, or the Final Prospectus as of its date or as of the Closing Date, contains or contained any untrue statement of a material fact or omits or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood , except that such counsel need make no statement not express an opinion or express any opinion as belief with respect to the financial statements, schedules and other financial information included in such Prospectus or excluded therefrom nor with respect to statements or other financial, numerical, statistical and quantitative information contained omissions in the Registration Statement or a Prospectus, and that for purposes of determining Prospectus with respect to the date deposit of the Preliminary Class A Certificates by the Underwriter into a secondary trust or Final Prospectus, it shall be the date stated on the respective prospectus supplements thereto;
(vii) the Registration Statement and each Prospectus complies in all material respects with the requirements terms of the Act and secondary trust's securities or the rules and regulations promulgated thereunder; and such counsel does not know of any contracts issuance or documents of a character required to be described in the Registration Statement or each Prospectus or to be filed as exhibits to the Registration Statement that are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial, numerical, statistical and quantitative information contained in the Registration Statement or a Prospectus; and
(viii) assuming that the Receivables are in substantially one sale of the forms attached to such opinion, the Receivables constitute tangible “chattel paper” within the meaning of the California UCCsecondary trust's securities.
(fi) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ ▇▇, Woods, Battle & Bird LLP▇▇▇▇▇▇, special L.L.P., counsel for The Bank of New York, a New York banking corporation ("BONY"), in connection with the ---- Agency Agreement dated as of December 4, 1995 between BONY and the Trustee (the "Agency Agreement"), and counsel for the Trustee, shall have furnished to the Company you ---------------- their written opinion, addressed to you and AHFC, dated the Closing Date and satisfactory Date, in form and substance satisfactory to the Underwriter you and in form and scope to counsel for the Underwriteryour counsel, substantially to the effect that:
(i) BONY is a banking corporation duly organized, validly existing and in good standing under the Receivables Purchase Agreement creates a valid security interest in favor laws of the Company in AHFC’s rightState of New York and has the corporate power and authority to execute, title deliver and interest in and to perform its obligations under the Receivables transferred to the Company pursuant to the Receivables Purchase Agency Agreement;
(ii) the Sale and Servicing Agreement creates a valid security interest in favor of the Trust in the Company’s right, title and interest in and to the Receivables transferred to the Trust Certificates have been duly authenticated by BONY pursuant to the Sale Agency Agreement and in accordance with the Pooling and Servicing Agreement;
(iii) the Indenture creates Trustee is a valid security interest banking corporation duly organized, validly existing and in favor good standing under the laws of the Indenture Trustee in State of Delaware and has the Trust’s rightcorporate power and authority to execute, title deliver and interest in perform its obligations under the Pooling and to the Receivables pledged to the Indenture Trustee pursuant to the Indenture;
(iv) the filing of the financing statements of Form UCC-1 naming (a) AHFC as debtor in favor of the Company, (b) the Company as debtor in favor of the Trust, and (c) the Trust as debtor in favor of the Indenture Trustee, in the respective offices, will be effective to perfect the security interests described in paragraphs (i), (ii) and (iii) above, and each such security interest will be prior to any security interest in the Receivables of any other creditor of AHFC, the Company or the Trust, respectively;
(v) the Trust Agreement is not reqServicin
Appears in 1 contract
Sources: Underwriting Agreement (First Usa Credit Card Master Trust)