EXHIBIT 1.2
UNDERWRITING AGREEMENT
(Asset-Backed Notes)
New York, New York
_____ __, 200_
[Lead Underwriter's name and address]
Ladies and Gentlemen:
SECTION 1. Introduction. Wachovia Mortgage Loan Trust, LLC, a Delaware
limited liability company (the "Company"), proposes to sell to the
Underwriters named on Schedule I hereto (the "Underwriters") through
__________, as representative of the Underwriters (the "Representative"),
$_______ principal amount of its Class __ Asset-Backed Notes identified in
Schedule I hereto (the "Offered Notes") having the aggregate initial Note
Balance set forth in Schedule I (subject to an upward or downward variance,
not to exceed __%, of the precise initial Note Balance within such range to
be determined by the Company in its sole discretion). As of the close of
business on the date specified in Schedule I as the cut-off date (the
"Cut-Off Date"), the Mortgage Loans will have the aggregate principal balance
set forth in Schedule I. This Underwriting Agreement shall hereinafter be
referred to as the "Agreement." The Offered Notes are to be issued pursuant
to an Indenture, dated as of _____ __, 200_ (the "Indenture"), among Wachovia
Mortgage Loan Trust, LLC [_____] Trust (the "Issuer" or the "Trust"),
__________, as indenture trustee (the "Indenture Trustee") and __________, as
paying agent (the "Paying Agent") and secured by the assets of the Issuer
consisting primarily of a pool of fixed-rate and adjustable-rate
one-to-four-family residential mortgage loans, as described in Schedule I
(the "Mortgage Loans") to be acquired by the Company pursuant to a mortgage
loan purchase agreement (the "Mortgage Loan Purchase Agreement"), dated _____
__, 200_, between the Company and __________ (the "Seller"). The Mortgage
Loans will be transferred by the Depositor to the Issuer pursuant to the
Trust Agreement, dated as of _____ __, 200_ (the "Trust Agreement") between
the Depositor and Wilmington Trust Company as Owner Trustee (the "Owner
Trustee"). [The Offered Notes will be subject to a yield maintenance
agreement, dated as of _____ __, 200_, between the Owner Trustee and the
Yield Maintenance Provider (the "Yield Maintenance Agreement").] The Offered
Notes will be issued in the denominations specified in Schedule I. The
Indenture, this Agreement, the Trust Agreement[, the Yield Maintenance
Agreement] and the Mortgage Loan Purchase Agreement are collectively referred
to herein as the "Basic Documents."
Capitalized terms used herein that are not otherwise defined herein
have the meanings assigned thereto in the Indenture.
SECTION 2. Representations and Warranties of the Company. (A) The Company
represents and warrants to the Underwriters as follows:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in Schedule I
hereto), which has become effective, for the registration under the Act of
the Offered Notes. Such registration statement, as amended to the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1) under the
Act and complies in all other material respects with said Rule. The Company
proposes to file with the Commission pursuant to Rule 424 under the Act a
supplement to the form of prospectus included in such registration statement
relating to the Offered Notes and the plan of distribution thereof and has
previously advised the Underwriters of all further information (financial and
other) with respect to the Company to be set forth therein. Such
registration statement, including the exhibits thereto, as amended to the
date of this Agreement, is hereinafter called the "Registration Statement";
such prospectus in the form in which it appears in the Registration Statement
is hereinafter called the "Base Prospectus"; and such supplement to the Base
Prospectus, in the form in which it shall be filed with the Commission
pursuant to Rule 424, is hereinafter called the "Prospectus Supplement" and,
collectively with the Base Prospectus, the "Prospectus." Any reference
herein to the Registration Statement, the Base Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the date of this Agreement, or the issue date of the Base Prospectus
or the Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Base Prospectus or the Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act after the date
of this Agreement, or the issue date of the Base Prospectus or the
Prospectus, as the case may be, and deemed to be incorporated therein by
reference. Any preliminary form of the Prospectus Supplement to be filed
pursuant to Rule 424(b) is referred to as a "Preliminary Prospectus
Supplement" and, together with the Base Prospectus, and as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto, a "Preliminary Prospectus."
(b) As of the date hereof, when the Prospectus is first filed pursuant to
Rule 424 under the Act, when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by reference in the
Registration Statement), when any supplement to the Prospectus is filed with
the Commission and at the Closing Date, (i) the Registration Statement, as
amended as of any such time, and the Prospectus, as amended or supplemented
as of any such time, will comply in all material respects with the Act and
the respective rules thereunder, (ii) the Registration Statement, as amended
as of any such time, will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading, (iii) the Prospectus,
as amended or supplemented as of any such time, will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, (iv)
the Approved Offering Materials (as hereinafter defined) as of the date of
the Approved Offering Materials did not and as of the Closing Date will not,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, (v) each Issuer Free Writing Prospectus
(as hereinafter defined), as amended or supplemented as of any such time
prior to the date of the related Prospectus Supplement, will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and (vi) the Base Prospectus as of the date of the related
Prospectus Supplement, will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to (A) the
information contained in or omitted from the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto in reliance upon
and in conformity with information furnished in writing to the Company by or
on behalf of the Underwriters specifically for use in connection with the
preparation of the Registration Statement or the Prospectus, (B) the Current
Report (as defined in Section 5(b) below), or any amendment thereof or
supplement thereto, incorporated by reference in the Registration Statement
or the Prospectus (or any amendment thereof or supplement thereto) or (C) any
information contained in any Underwriter Prepared Issuer FWP (as hereinafter
defined) or Underwriter Free Writing Prospectus (as hereinafter defined),
except, in each case, to the extent of (x) any information set forth therein
that constitutes Pool Information (as hereinafter defined) or (y) any
information accurately extracted from any Issuer Free Writing Prospectus and
included in any Underwriter Prepared Issuer FWP or Underwriter Free Writing
Prospectus.
2
(c) (i) "ABS Informational and Computational Materials" shall
have the meaning given such term in Item 1101 of Regulation AB.
(ii) "Approved Offering Materials" means the Preliminary
Prospectus.
(iii) "Contract of Sale" has the same meaning as in Rule
159 of the 1933 Act Regulations and all Commission guidance relating to Rule
159.
(iv) "Free Writing Prospectus" shall have the meaning
given such term in Rules 405 and 433 of the 1933 Act Regulations.
(v) "Issuer Free Writing Prospectus" shall mean any Free
Writing Prospectus prepared by or on behalf of the Company and identified by
the Company as an Issuer Free Writing Prospectus and relating to the
Certificates or the offering thereof.
(vi) "Issuer Information" shall mean any information of
the type specified in clauses (1) - (5) of footnote 271 of Commission Release
No. 33-8591 (Securities Offering Reform), other than Underwriter Derived
Information. Consistent with such definition, "Issuer Information" shall not
be deemed to include any information in a Free Writing Prospectus solely by
reason of the Company's review of the materials pursuant to Section 4.4(e)
below and, consistent with Securities Offering Reform Questions and Answers,
November 30, 2005 promulgated by the staff of the Commission, "Issuer
Information" shall not be deemed to include any information in a Free Writing
Prospectus solely by reason that the Underwriter has agreed not to use such
Free Writing Prospectus without consent of the Company.
(vii) "Permitted Additional Materials" shall mean
information that is not ABS Informational and Computational Materials and (x)
that are referred to in Section 4.4(c) so long as any Issuer Information
provided by the Underwriter pursuant to Section 4.4(c) is limited to
information included within the definition of ABS Informational and
Computational Materials, (y) that constitute Certificate price, yield,
weighted average life, subscription or allocation information, or a trade
confirmation, or (z) otherwise with respect to which the Company has provided
written consent to the Underwriter to include in a Free Writing Prospectus.
3
(viii) "Pool Information" means with respect to any
Free Writing Prospectus, the information with respect to the characteristics
of the Mortgage Loans and administrative and servicing fees, as provided by
or on behalf of the Company to the Underwriter at the time most recent to the
date of such Free Writing Prospectus.
(ix) "Underwriter Derived Information" shall refer to
information of the type described in clause (5) of footnote 271 of Commission
Release No. 33-8591 (Securities Offering Reform) when prepared by the
Underwriter, including traditional computational and analytical materials
prepared by the Underwriter.
(x) "Underwriter Free Writing Prospectus" shall mean all
Free Writing Prospectuses prepared by or on behalf of the Underwriter other
than any Underwriter Prepared Issuer FWP, including any Permitted Additional
Materials.
(xi) "Underwriter Prepared Issuer FWP" shall mean any Free
Writing Prospectus prepared by or on behalf of the Underwriter that contains
any Issuer Information, including any Free Writing Prospectus or portion
thereof prepared by or on behalf of the Underwriter that contains only a
description of the final terms of the Certificates or of the offering of the
Certificates.
(xii) "Written Communication" shall have the meaning given
such term in Rule 405 of the 1933 Act Regulations.
(c) The Company has been duly formed and is validly existing as a limited
liability company under the laws of the State of Delaware and has all
requisite power and authority to own its properties and conduct its business,
as now conducted by it, and to enter into and perform its obligations under
this Agreement and the other Basic Documents to which it is a party.
(d) The Company is not aware of (i) any request by the Commission for any
further amendment of the Registration Statement or the Base Prospectus or for
any additional information or (ii) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement.
(e) This Agreement has been duly authorized, executed and delivered by the
Company, and each of the other Basic Documents to which the Company is a
party, when delivered by the Company, will have been duly authorized,
executed and delivered by the Company, and will constitute a legal, valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject, as to the enforcement of remedies, to
applicable bankruptcy, insolvency, reorganization, moratorium, receivership
and similar laws affecting creditors' rights generally and to general
principles of equity (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law), and except as rights to
indemnity and contribution hereunder may be limited by federal or state
securities laws or principles of public policy.
4
(B) Each Underwriter represents and warrants to, and agrees with, the
Company that:
(a) As of the date hereof and as of the Closing Date, the
Underwriter has complied with all of its obligations hereunder and all
information contained in any Underwriter Free Writing Prospectus and in any
Underwriter Prepared Issuer FWP as used in connection with any Contract of
Sale are accurate in all material respects (taking into account the
assumptions explicitly set forth in such Underwriter Prepared Issuer FWP or
Underwriter Free Writing Prospectus), except to the extent of (x) any errors
therein that are caused by errors or omissions in the Pool Information or (y)
information accurately extracted from any Issuer Free Writing Prospectus and
included in any Underwriter Prepared Issuer FWP or Underwriter Free Writing
Prospectus.
(b) Prior to the Closing Date, the Underwriter shall notify the
Company of the earlier of (x) the date on which the Prospectus Supplement is
first used and (y) the time of the first Contract of Sale to which such
Prospectus Supplement relates.
SECTION 3. Purchase, Sale and Delivery of Offered Notes. On the basis of
the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company agrees to issue and
sell to the Underwriters, and the Underwriters agree to purchase from the
Company, the principal amount of Offered Notes set forth opposite each such
Underwriter's name on Schedule I hereto. The purchase price for the Offered
Notes is set forth as a percentage of the aggregate principal balance of the
Offered Notes in Schedule I hereto.
The Company will deliver the Offered Notes to the Representative,
against payment of the purchase price therefor in same day funds wired to
such bank as may be designated by the Company, or by such other manner of
payment as may be agreed upon by the Company and the Underwriters, at the
offices of [Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP], New York, NY at 10:00 A.M.,
Eastern time, on _____ __, 200_ or at such other place or time not later than
seven full business days thereafter as the Representative and the Company
determine, such time being referred to herein as the "Closing Date."
The Offered Notes so to be delivered will be in such denominations and
registered in such names as the Representative requests two full business
days prior to the Closing Date and will be made available at the office of
________, [city], [state] or, upon the Representative's request, through the
facilities of The Depository Trust Company.
SECTION 4. Offering by the Underwriters.
(a) It is understood that the Underwriters propose to offer the Offered
Notes subject to this Agreement for sale to the public (which may include
selected dealers) on the terms as set forth in the Prospectus and the
Underwriters agree that all such offers and sales by them shall be made in
compliance with all applicable laws and regulations.
5
(b) If any Underwriter shall fail to take up and pay for the amount of the
Offered Notes agreed by such Underwriter to be purchased under this
Underwriting Agreement upon tender of such Notes in accordance with the terms
hereof, and the amount of the Offered Notes not purchased does not aggregate
more than 10% of the total amount of the Offered Notes set forth in Schedule
I hereto, the remaining Underwriters shall be obligated to take up and pay
for the Term Notes that the withdrawing or defaulting Underwriters agreed but
failed to purchase.
This Underwriting Agreement shall terminate if (i) any
Underwriter shall fail to take up and pay for the amount of the Offered Notes
agreed by such Underwriter to be purchased under this Underwriting Agreement
(such Underwriter being a "Defaulting Underwriter") upon tender of such Notes
in accordance with the terms hereof, (ii) the amount of the Offered Notes not
purchased aggregates more than 10% of the total amount of the Offered Notes
set forth in Schedule I hereto, and (iii) arrangements satisfactory to the
remaining Underwriters and the Company for the purchase of such Notes by
other persons are not made within 36 hours thereafter. In the event of any
such termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 8 hereof) nor shall any
Underwriter (other than an Underwriter who shall have failed, otherwise than
for some reason permitted under this Underwriting Agreement, to purchase the
amount of the Offered Notes which such Underwriter agreed to purchase
hereunder) be under any liability to the Company (except to the extent
provided in Section 8 hereof). Nothing herein shall be deemed to relieve any
Defaulting Underwriter from any liability it may have to the Company or any
other Underwriter by reason of its failure to take up and pay the Offered
Notes as agreed to by such Defaulting Underwriter.
(c) It is understood that prior to the date of the first
Contract of Sale made based on the Approved Offering Materials, the
Underwriters have not pledged, sold, disposed of or otherwise transferred any
Certificate, Mortgage Loans or any interest in any Certificate.
(d) It is understood that the Underwriters will solicit offers
to purchase the Certificates as follows:
(i) Prior to the time the Underwriters have received the
Approved Offering Materials the Underwriters may, in compliance with the
provisions of this Agreement, solicit offers to purchase Certificates;
provided, that the Underwriters shall not accept any such offer to purchase a
Certificate or any interest in any Certificate or Mortgage Loan or otherwise
enter into any Contract of Sale for any Certificate, any interest in any
Certificate or any Mortgage Loan prior to the Underwriters' conveyance of
Approved Offering Materials to the investor.
(ii) any Written Communication relating to the
Certificates made by an Underwriter in compliance with the terms of this
Agreement prior to the time such Underwriter has entered into a Contract of
Sale for Certificates with the recipient shall prominently set forth the
following statements (or a substantially similar statements approved by the
Company):
The information in this free writing prospectus, if
conveyed prior to the time of the your contractual
commitment to purchase any of the Certificates, supersedes
any information contained in any prior similar materials
relating to the Certificates. The information in this free
writing prospectus is preliminary, and is subject to
completion or change. This free writing prospectus is
being delivered to you solely to provide you with
information about the offering of the Certificates referred
to in this free writing prospectus and to solicit an offer
to purchase the Certificates, when, as and if issued. Any
such offer to purchase made by you will not be accepted and
will not constitute a contractual commitment by you to
purchase any of the Certificates, until we have accepted
your offer to purchase Certificates.
6
The Certificates referred to in these materials are being
sold when, as and if issued. The issuer is not obligated
to issue such Certificates or any similar security and the
underwriter's obligation to deliver such Certificates is
subject to the terms and conditions of the underwriting
agreement with the issuer and the availability of such
Certificates when, as and if issued by the issuer. You are
advised that the terms of the Certificates, and the
characteristics of the mortgage loan pool backing them, may
change (due, among other things, to the possibility that
mortgage loans that comprise the pool may become delinquent
or defaulted or may be removed or replaced and that similar
or different mortgage loans may be added to the pool, and
that one or more classes of Certificates may be split,
combined or eliminated), at any time prior to issuance or
availability of a final prospectus. You are advised that
Certificates may not be issued that have the
characteristics described in these materials. The
underwriter's obligation to sell such Certificates to you
is conditioned on the mortgage loans and Certificates
having the characteristics described in these materials.
If for any reason the issuer does not deliver such
Certificates, the underwriter will notify you, and neither
the issuer nor any underwriter will have any obligation to
you to deliver all or any portion of the Certificates which
you have committed to purchase, and none of the issuer nor
any underwriter will be liable for any costs or damages
whatsoever arising from or related to such non-delivery.
(iii) It is understood that the Underwriters will not enter
into a Contract of Sale with any investor until the Approved Offering
Materials have been conveyed to the investor with respect to the Certificates
which are the subject of such Contract of Sale.
(e) It is understood that you may prepare and provide to
prospective investors certain Free Writing Prospectuses, subject to the
following conditions:
(i) Unless preceded or accompanied by a prospectus
satisfying the requirements of Section 10(a) of the Act, the Underwriter
shall not convey or deliver any Written Communication to any person in
connection with the initial offering of the Certificates, unless such Written
Communication (i) is made in reliance on Rule 134 under the Act, (ii)
constitutes a prospectus satisfying the requirements of Rule 430B under the
Act or (iii) constitutes a Free Writing Prospectus (as defined in Section
1(c) above) consisting solely of (x) information of a type included within
the definition of ABS Informational and Computational Materials (as defined
below), (y) Permitted Additional Materials or (z) information accurately
extracted from the Preliminary Prospectus any Issuer Free Writing Prospectus
and included in any Underwriter Prepared Issuer FWP or any Underwriter Free
Writing Prospectus.
7
(ii) The Underwriter shall comply with all applicable laws
and regulations in connection with the use of Free Writing Prospectuses,
including but not limited to Rules 164 and 433 of the 1933 Act Regulations
and all Commission guidance relating to Free Writing Prospectuses, including
but not limited to Commission Release No. 33-8591.
(iii) It is understood and agreed that all information
provided by the Underwriter to or through Bloomberg or Intex or similar
entities for use by prospective investors, or imbedded in any CDI file
provided to prospective investors, or in any email or other electronic
message provided to prospective investors, to the extent constituting a Free
Writing Prospectus, shall be deemed for purposes of this Agreement to be an
Underwriter Free Writing Prospectus and shall not be subject to the required
consent of the Company set forth in the third sentence in Section 4(e)(v).
In connection therewith, the Underwriter agrees that it shall not provide any
information constituting Issuer Information through the foregoing media
unless (i) such information or substantially similar information is contained
either in an Issuer Free Writing Prospectus or in an Underwriter Prepared
Issuer FWP in compliance with Section 4(e)(v) or (ii) to the extent such
information consists of the terms of the Certificates, the final version of
the terms of the Certificates or substantially similar information is
contained either in an Issuer Free Writing Prospectus or in an Underwriter
Prepared Issuer FWP in compliance with Section 4(e)(v).
..
(iv) All Free Writing Prospectuses provided to prospective
investors, whether or not filed with the Commission, shall bear a legend
including the following statement (or a substantially similar statement
approved by the Company):
"THE DEPOSITOR HAS FILED A REGISTRATION
STATEMENT (INCLUDING A PROSPECTUS) WITH THE
SECURITIES AND EXCHANGE COMMISSION (THE SEC)
FOR THE OFFERING TO WHICH THIS COMMUNICATION
RELATES. BEFORE YOU INVEST, YOU SHOULD READ
THE PROSPECTUS IN THAT REGISTRATION STATEMENT
AND OTHER DOCUMENTS THE DEPOSITOR HAS
FILED WITH THE SEC FOR MORE COMPLETE
INFORMATION ABOUT THE DEPOSITOR AND THE
OFFERING. YOU MAY GET THESE DOCUMENTS AT NO
CHARGE BY VISITING XXXXX ON THE SEC WEB SITE AT
XXX.XXX.XXX. ALTERNATIVELY, THE DEPOSITOR, ANY
UNDERWRITER OR ANY DEALER PARTICIPATING IN THE
OFFERING WILL ARRANGE TO SEND YOU THE
PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY
CALLING TOLL-FREE 1-XXX-XXX-XXXX."
8
Each of the Underwriter and the Company shall have the right to request
additional specific legends or notations to appear on any Free Writing
Prospectus and shall have the right to require changes regarding the use of
terminology and the right to determine the types of information appearing
therein with the approval of the other (which shall not be unreasonably
withheld).
(v) The Underwriter shall deliver to the Company and its
counsel (in such format as reasonably required by the Company), prior to the
proposed date of first use thereof, (unless such timing requirement is waived
by the Company), any Underwriter Prepared Issuer FWP (as defined above). To
facilitate filing to the extent required by Section 5(g) or 5(h), as
applicable, all Underwriter Derived Information shall be set forth in a
document separate from any Underwriter Prepared Issuer FWP including Issuer
Information. Consent to use of any Underwriter Prepared Issuer FWP must be
given by the Company in written or electronic format before the Underwriter
provides the Underwriter Prepared Issuer FWP to investors pursuant to the
terms of this Agreement. Notwithstanding the foregoing, the Underwriter
shall not be required to deliver or obtain consent to use an Underwriter
Prepared Issuer FWP to the extent that it does not contain substantive
changes from or additions to any Underwriter Prepared Issuer FWP previously
approved by the Company. In the event that the Underwriter uses any
Underwriter Prepared Issuer FWP without complying with the foregoing
requirements, that Underwriter Prepared Issuer FWP shall be deemed to be an
Underwriter Free Writing Prospectus for purposes of Section 8(a) and 8(b).
(vi) The Underwriter shall provide the Company with a
letter from [_________], certified public accountants, prior to the Closing
Date, satisfactory in form and substance to the Company and its counsel and
the Underwriter, to the effect that such accountants have performed certain
specified procedures, all of which have been agreed to by the Company and the
Underwriter, as a result of which they determined that certain information of
an accounting, financial or statistical nature that is included in any
Underwriter Prepared Issuer FWP, other than any Pool Information therein and
any information accurately extracted from any Issuer Free Writing Prospectus
and included in such Underwriter Prepared Issuer FWP, is accurate except as
to such matters that are not deemed by the Company and the Underwriter to be
material. The foregoing letter shall be at the expense of the Underwriter.
(vii) None of the information in any Free Writing
Prospectus may conflict with the information then contained in the
Registration Statement or any prospectus or prospectus supplement that is a
part thereof.
(viii) The Company shall not be obligated to file any
Issuer Free Writing Prospectuses that have been determined to contain any
material error or omission unless such Issuer Free Writing Prospectus has
been provided to a prospective investor, in which case, the Underwriter shall
cooperate with the Company to prepare a corrective Issuer Free Writing
Prospectus that the Underwriter will provide to any such prospective investor
and the Company shall file to the extent required herein. In the event that
the Underwriter becomes aware that, as of the date on which an investor
entered into a Contract of Sale, any Free Writing Prospectus prepared by or
on behalf of the Underwriter and delivered to such investor contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading (such Free Writing
Prospectus, a "Defective Free Writing Prospectus"), the Underwriter shall
notify the Company thereof as soon as practical but in any event within one
business day after discovery.
9
(ix) If the Underwriter does not provide any Free Writing
Prospectuses to the Company pursuant to subsection (v) above, the Underwriter
shall be deemed to have represented, as of the Closing Date, that it did not
provide any prospective investors with any information in written or
electronic form in connection with the offering of the Certificates that
would constitute an Underwriter Prepared Issuer FWP.
(x) In the event of any delay in the delivery by the
Underwriter to the Company of any Underwriter Prepared Issuer FWP required to
be delivered in accordance with subsection (v) above, or in the delivery of
the accountant's comfort letter in respect thereof pursuant to subsection
(vi) above, the Company shall have the right to delay the release of the
Prospectus to investors or to the Underwriter, to delay the Closing Date and
to take other appropriate actions in each case as necessary in order to allow
the Company to comply with its agreement set forth in Section 5(a) to file
such Underwriter Prepared Issuer FWP by the time specified therein.
(xi) The Underwriter represents that it has in place, and
covenants that it shall maintain, internal controls and procedures which it
reasonably believes to be sufficient to ensure full compliance with all
applicable legal requirements of the 1933 Act Regulations with respect to the
generation and use of Free Writing Prospectuses in connection with the
offering of the Certificates. In addition, each Underwriter shall, for a
period of at least three years after the date hereof, maintain written and/or
electronic records of the following:
(1) any Free Writing Prospectus used by the
Underwriter to solicit offers to purchase Certificates to the
extent not filed with the Commission;
(2) regarding each Free Writing Prospectus
delivered by the Underwriter to an investor, the date of such
delivery and identity of such investor; and
(3) regarding each Contract of Sale entered
into by such Underwriter, the date, identity of the investor and
the terms of such Contract of Sale, as set forth in the related
confirmation of trade.
(xii) The Underwriter covenants with the Company that after
the final Prospectus is available the Underwriter shall not distribute any
written information concerning the Certificates to a prospective investor
unless such information is preceded or accompanied by the final Prospectus.
It is understood and agreed that the use of written information in accordance
with the preceding sentence is not a Free Writing Prospectus and is not
otherwise restricted or governed in any way by this Agreement.
(xiii) The Underwriter shall not use any Free Writing
Prospectus in connection with the solicitation of offers to purchase
Certificates from any prospective investor in a class of Certificates with
denominations of less than $25,000 or otherwise designated as a "retail"
class of Certificates, and the Underwriter shall not authorize any such use
of any Free Writing Prospectus by any dealer that purchases any such
Certificates from the Underwriter.
10
(f) The Underwriter agrees that (i) if the Prospectus is not
delivered with the confirmation in reliance on Rule 172, it will include in
every confirmation sent out the notice required by Rule 173 informing the
investor that the sale was made pursuant to the Registration Statement and
that the investor may request a copy of the Prospectus from the Underwriter;
(ii) if a paper copy of the Prospectus is requested by a person who receives
a confirmation, Underwriter shall deliver a printed or paper copy of such
Prospectus; and (iii) if an electronic copy of the Prospectus is delivered by
the Underwriter for any purpose, such copy shall be the same electronic file
containing the Prospectus in the identical form transmitted electronically to
the Underwriter by or on behalf of the Company specifically for use by the
Underwriter pursuant to this Section 4(e); for example, if the Prospectus is
delivered to the Underwriter by or on behalf of the Company in a single
electronic file in pdf format, then the Underwriter will deliver the
electronic copy of the Prospectus in the same single electronic file in pdf
format. The Underwriter further agrees that (i) if it delivers to an investor
the Prospectus in pdf format, upon the Underwriter's receipt of a request
from the investor within the period for which delivery of the Prospectus is
required, the Underwriter will promptly deliver or cause to be delivered to
the investor, without charge, a paper copy of the Prospectus and (ii) it will
provide to the Company any Underwriter Prepared Issuer FWP, or portions
thereof, which the Company is required to file with the Commission in
electronic format and will use reasonable efforts to provide to the Company
such Underwriter Prepared Issuer FWP, or portions thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a pdf, except to the
extent that the Company, in its sole discretion, waives such requirements.
SECTION 5. Covenants of the Company. The Company hereby covenants and
agrees with the Underwriters that:
(a) Prior to the termination of the offering of the Offered Notes, the
Company will not file any amendment of the Registration Statement or
supplement (including the Prospectus) to the Base Prospectus unless the
Company has furnished the Underwriters a copy for their review prior to
filing and will not file any such proposed amendment or supplement to which
any Underwriter reasonably objects. Subject to the foregoing sentence, the
Company will cause the Preliminary Prospectus and the Prospectus to be filed
with the Commission pursuant to Rule 424. The Company will advise the
Underwriters promptly (i) when the Prospectus shall have been filed with the
Commission pursuant to Rule 424, (ii) when any amendment to the Registration
Statement relating to the Offered Notes shall have become effective, (iii) of
any request by the Commission for any amendment of the Registration Statement
or amendment of or supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution
or threatening of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Offered Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
11
(b) The Company will use its best efforts to cause any Computational
Materials, Collateral Term Sheets and ABS Term Sheets (each as defined in
Section 11 below) with respect to the Offered Notes which are delivered by
the Underwriters to the Company pursuant to Section 11 to be filed with the
Commission on a Current Report on Form 8-K (the "Current Report") pursuant to
Rule 13a-11 under the Exchange Act not later than the business day
immediately following the day on which such Computational Materials,
Collateral Term Sheets or ABS Term Sheets are delivered to counsel for the
Company by the Underwriters as provided in Section 11, and will promptly
advise the Underwriters when such Current Report has been so filed. Such
Current Report shall be incorporated by reference in the Prospectus and the
Registration Statement. Notwithstanding the two preceding sentences, the
Company shall have no obligation to file materials provided by the
Underwriters pursuant to Section 11 which, in the reasonable determination of
the Company after making reasonable efforts to consult with the Underwriters,
are not required to be filed pursuant to the No-Action Letters (as defined in
Section 11 below), or which contain erroneous information or contain any
untrue statement of a material fact or which, when read in conjunction with
the Prospectus, omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to review or
pass upon the accuracy or adequacy of, or to correct, any Computational
Materials, Collateral Term Sheets or ABS Term Sheets provided by the
Underwriters to the Company pursuant to Section 11 hereof.
(c) If, at any time when a prospectus relating to the Offered Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, or if it shall be necessary to amend or supplement
the Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this Section 5,
an amendment or supplement which will correct such statement or omission or
an amendment which will effect such compliance and will use its best efforts
to cause any required post-effective amendment to the Registration Statement
containing such amendment to be made effective as soon as possible; provided,
however, that the Company will not be required to file any such amendment or
supplement with respect to any Computational Materials incorporated by
reference in the Prospectus other than any amendments or supplements of such
Computational Materials that are furnished to the Company pursuant to Section
11(d) hereof which the Company determines to file in accordance therewith.
(d) The Company will furnish to the Underwriters and counsel for the
Underwriters, without charge, executed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by the Underwriters or dealer may be required by the Act, as many
copies of the Prospectus and any amendments thereof and supplements thereto
(other than exhibits to the related Current Report) as the Underwriters may
reasonably request. The Company will pay the expenses of printing all
documents relating to the initial offering[, provided that any additional
expenses incurred in connection with the requirement of delivery of a
market-making prospectus will be borne by the Underwriters].
12
(e) The Company will furnish such information as may be required and
otherwise cooperate in qualifying the Offered Notes for sale under the laws
of such jurisdictions as the Underwriters may reasonably designate and to
maintain such qualifications in effect so long as required for the
distribution of the Offered Notes; provided, however, that the Company shall
not be required to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
(f) The Company shall file any Issuer Free Writing Prospectus,
and any Underwriter Prepared Issuer FWP provided to it by the Underwriter
under Section 4(d), not later than the date of first use thereof, except that:
(i) any Issuer Free Writing Prospectus or Underwriter
Prepared Issuer FWP or portion thereof otherwise required to be filed that
contains only (1) a description of the final terms of the Certificates may be
filed by the Company within two days of the later of the date such final
terms have been established for all classes of Certificates and the date of
first use, and (2) a description of the terms of the Certificates that does
not reflect the final terms after they have been established for all classes
of all Certificates is not required to be filed; and
(ii) if the Issuer Free Writing Prospectus or Underwriter
Prepared Issuer FWP includes only information of a type included in the
definition of ABS Informational and Computational Materials, the Company
shall file the same within the later of two business days after the
Underwriter first provides this information to investors and the date upon
which the Company is required to file the Prospectus Supplement with the
Commission pursuant to Rule 424(b)(3) of the Act.
provided further, that prior to the filing of any Underwriter Prepared
Issuer FWP by the Company, the Underwriter must comply with its obligations
pursuant to Section 4(d) and that the Company shall not be required to file
any Free Writing Prospectus to the extent such Free Writing Prospectus
includes information in a Free Writing Prospectus or Prospectus previously
filed with the Commission or that does not contain substantive changes from
or additions to a Free Writing Prospectus previously filed with the
Commission.
(g) The Underwriter shall file any Underwriter Free Writing
Prospectus that has been distributed by the Underwriter in a manner
reasonably designed to lead to its broad, unrestricted dissemination within
the later of two business days after the Underwriter first provides this
information to investors and the date upon which the Company is required to
file the Prospectus Supplement with the Commission pursuant to Rule 424(b)(3)
of the Act or otherwise as required under Rule 433 of the Act; provided,
however, that the Underwriter shall not be required to file any Underwriter
Free Writing Prospectus to the extent such Underwriter Free Writing
Prospectus includes information in a Free Writing Prospectus or Prospectus
previously filed with the Commission or that does not contain substantive
changes from or additions to a Free Writing Prospectus previously filed with
the Commission.
SECTION 6. Conditions to the Obligations of the Underwriters. The
obligation of the Underwriters to purchase the Offered Notes shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to
the Closing Date (including the filing of any document incorporated by
reference therein) and as of the Closing Date, to the accuracy of the
statements of the Company made in any certificates delivered pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
13
(a) The Representative shall have received from _______ (i) a letter, dated
the date hereof, confirming that they are independent public accountants
within the meaning of the Act and the rules and regulations of the Commission
promulgated thereunder and otherwise in form and substance reasonably
satisfactory to the Representative and counsel to the Representative and (ii)
if requested by the Representative, a letter dated the Closing Date, updating
the letter referred to in clause (i) above, in form and substance reasonably
satisfactory to the Representative and counsel for the Representative.
(b) All actions required to be taken and all filings required to be made by
the Company under the Act prior to the sale of the Offered Notes shall have
been duly taken and made. At and 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 Underwriters, shall have been
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 involving a prospective
change, in or affecting particularly the business or properties of the
Company or the Servicer which, in the reasonable judgment of the
Underwriters, materially impairs the investment quality of the Offered Notes;
(ii) any downgrading in the rating of the securities of the Company by any
"nationally recognized statistical rating organization" (as such term is
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 securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) 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; (iv) any banking
moratorium declared by federal, North Carolina or New York authorities; or
(v) any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
reasonable judgment of the Underwriters, the effects of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Offered Notes.
(d) The Representative shall have received a certificate dated the Closing
Date of an executive officer of the Company in which such officer shall state
that, to the best of such officer's knowledge after reasonable inspection,
(i) the representations and warranties of the Company contained in the Basic
Documents are true and correct with the same force and effect as if made on
the Closing Date and (ii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date.
14
(e) The Representative shall have received an opinion of counsel for the
Company, which may be an opinion of in-house counsel to the Company, to the
effect that:
(i) The Company is a limited liability company, duly formed, validly
existing and in good standing under the laws of the state of
Delaware;
(ii) The Company has the requisite power and authority to execute and
deliver the Basic Documents to which it is a party and to
consummate the transactions contemplated therein;
(iii) Each of the Basic Documents to which the Company is a party has been
duly authorized, executed and delivered by the Company;
(iv) To the best of such counsel's knowledge and information, the execution
and delivery of the Basic Documents and the consummation of the
transactions contemplated therein will not conflict with, or
result in a material breach of or a violation of any of the terms
of, or constitute a material default under, the Articles of
Incorporation or the Operating Agreement of the Company, or any
material rule, order, statute or regulation of any court,
regulatory body, administrative agency or governmental agency
having jurisdiction over the Company, or the terms of any
material indenture or other material agreement or instrument
known to the officer to which the Company is a party or by which
it or its properties are bound; and
(v) To the best of such counsel's knowledge, there are no actions,
proceedings, or investigations pending or threatened before any
court, administrative agency or other tribunal (x) asserting the
invalidity of the Basic Documents or the Offered Notes, or (y)
seeking to prevent the issuance of the Offered Notes or the
consummation of any of the transactions contemplated by the Basic
Documents or the Offered Notes which might materially and
adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, the
Basic Documents or the Offered Notes, or (z) seeking adversely to
affect the federal income tax attributes of the Offered Notes as
debt.
(f) The Representative shall have received a certificate of an executive
officer of the Servicer, dated as of the Closing Date, to the effect that, to
the best of such officer's knowledge, such officer has reviewed the
Prospectus as amended or supplemented to the Closing Date and nothing has
come to such officer's attention that would lead such officer to believe that
the Prospectus as amended or supplemented, insofar as it relates to the
Servicer, contains any untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(g) The Representative shall have received an opinion of counsel for
[Seller][Servicer][Paying Agent], which may be an opinion of in-house counsel
to [Seller][Servicer][Paying Agent], to the effect that:
15
(i) [Seller][Servicer][Paying Agent] is duly organized and validly existing
as a _______ formed under the laws of _______ and is authorized
to own its assets and to transact its business;
(ii) [Seller][Servicer][Paying Agent] has the power and authority to execute
and deliver the Basic Documents to which it is a party and to
consummate the transactions contemplated therein;
(iii) Each of the Basic Documents to which [Seller][Servicer][Paying Agent]
is a party has been duly authorized, executed and delivered by
[Seller][Servicer][Paying Agent];
(iv) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required for the
consummation by [Seller][Servicer][Paying Agent] of the
transactions contemplated by the Basic Documents, except for such
filings as may be required pursuant to the Purchase Agreement or
the Trust Agreement or otherwise in order to perfect the
ownership and security interests contemplated by the Indenture,
the Trust Agreement and the Purchase Agreement;
(v) Neither the execution, delivery and performance by
[Seller][Servicer][Paying Agent] of its obligations under the
Basic Documents to which it is a party, nor the consummation of
any of the transactions contemplated by the Basic Documents, will
conflict with, result in a material breach of or violation of any
of the terms of, or constitute a material default under, the
Articles of Association or By-laws of [Seller][Servicer][Paying
Agent], as applicable, each as amended, or any material rule,
order, statute or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over [Seller][Servicer][Paying Agent], as applicable, or the
terms of any material indenture or other material agreement or
instrument known to me to which [Seller][Servicer][Paying Agent]
is a party or by which it or its properties are bound,
respectively; and
(vi) To the best of counsel's knowledge, there are no actions, proceedings,
or investigations pending or threatened before any court,
administrative agency or other tribunal (x) asserting the
invalidity of the Basic Documents or the Offered Notes, or (y)
seeking to prevent the issuance of the Offered Notes or the
consummation of any of the transactions contemplated by the Basic
Documents or the Offered Notes which might materially and
adversely affect the performance by [Seller][Servicer][Paying
Agent], of its obligations under, or the validity or
enforceability of, the Basic Documents or the Offered Notes, or
(z) seeking adversely to affect the federal income tax attributes
of the Offered Notes as debt.
(h) The Representative shall have received an opinion of [Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP], special counsel to the Company, which opinion
may rely on, and assume the accuracy of, the opinion described in paragraph
(e) above, dated the Closing Date, to the effect that:
16
(i) The Offered Notes have been duly authorized by all necessary corporate
action of the Company and, when executed, authenticated and
delivered in the manner contemplated by the Indenture and paid
for pursuant to this Agreement, will be validly issued and
outstanding, and entitled to the benefits provided by the
Indenture; and the Mortgage Loan Purchase Agreement, constitutes
the legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
subject to certain qualifications;
(ii) Each of the Indenture and the Mortgage Loan Purchase Agreement
represents the legal, valid and binding agreement of
[Seller][Servicer][Paying Agent], in each of its capacities,
enforceable against [Seller][Servicer][Paying Agent] in each of
its capacities, in accordance with its terms, subject to certain
qualifications;
(iii) The Indenture has been duly qualified, and the Trust Agreement is not
required to be qualified, under the Trust Indenture Act of 1939,
as amended, and the Issuer is not required to be registered under
the Investment Company Act of 1940, as amended;
(iv) Assuming compliance with all provisions of the Agreements and the Trust
Agreement, under existing law (a) the Offered Notes will be
classified as debt for federal income tax purposes, and (b)
neither the Issuer, nor any portion of the Issuer will be
classified as an association or a taxable mortgage pool (or
publicly traded partnership) taxable as a corporation;
(v) The Registration Statement (which for purposes of such opinion shall
not be deemed to include any exhibits filed therewith or any
documents incorporated therein by reference) has become effective
under the Act and, to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued; and
(vi) The statements set forth in the Prospectus under the heading
"Description of the Securities," insofar as such statements
purport to summarize certain provisions of the Offered Notes, the
Indenture, the Servicing Agreement, the Trust Agreement and the
Mortgage Loan Purchase Agreement, are correct in all material
respects. The statements set forth in the Base Prospectus under
the headings "Federal Income Tax Consequences" and "ERISA
Considerations" and in the Prospectus Supplement under the
headings "Material Federal Income Tax Considerations" and "ERISA
Considerations," to the extent that they constitute matters of
federal law or legal conclusions with respect thereto, are
correct in all material respects.
17
(i) The Representative shall have received copies of any opinions of
counsel for the Company that the Company is required to deliver to any Rating
Agency. Any such opinions shall be dated the Closing Date and addressed to
the Representative or accompanied by reliance letters addressed to the
Representative.
(j) The Representative shall have received from [Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP], special counsel for the Representative, a letter dated the
Closing Date with respect to the Prospectus, substantially to the effect that
nothing has come to counsel's attention to cause counsel to believe that the
Registration Statement (excluding any exhibits filed therewith), as of the
date it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus, as of
the date of the Prospectus Supplement and as of the Closing Date, contained
or contains an untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that we have not been requested to and we
do not make any comment in this paragraph with respect to (i) the financial
statements, schedules and other financial and statistical information
contained in or incorporated by reference into the Registration Statement or
the Prospectus, (ii) any Computational Materials or ABS Term Sheets[, (iii)
any information contained in the Prospectus Supplement under the heading "The
Enhancer" or (iv) any information contained in the Prospectus Supplement
under the heading "The Yield Maintenance Provider"]).
(k) The Representative shall have received an opinion of counsel to the
Indenture Trustee, dated the Closing Date, in form and substance satisfactory
to the Representative and its counsel, to the effect that:
(i) The Indenture Trustee is duly organized, validly existing and in good
standing as a _____ under the laws of the ______, and has the
requisite entity power and authority to execute and deliver the
Basic Documents and to perform its obligations thereunder;
(ii) The performance of the Indenture Trustee's obligations under the Basic
Documents and the consummation of the transactions contemplated
thereby do not require any consent, approval, authorization or
order of, filing with or notice to any United States federal or
______ State of court, agency or other governmental body, except
such as may be required under the securities laws of any State of
the United States or such as have been obtained, effected or
given;
(iii) The performance of the Indenture Trustee's obligations under the Basic
Documents and the consummation of the transactions contemplated
thereby will not result in: (i) any breach or violation of its
certificate of incorporation or bylaws or (ii) any breach or
violation of any United States federal or State of ______ statute
or regulation or, to counsel's knowledge, any order of any United
States federal or State of ______ court, agency or other
governmental body;
18
(iv) To counsel's knowledge, (i) there is no legal action, suit, proceeding
or investigation before any United States federal or State of
______ court, agency or other governmental body pending or (ii)
threatened against the Indenture Trustee which, either in one
instance or in the aggregate, draws into question the validity of
any of the Basic Documents, seeks to prevent the consummation of
any of the transactions contemplated by any of the Basic
Documents or would impair materially the Indenture Trustee's
ability to perform its obligations under any of the Basic
Documents;
(v) Each of the Basic Documents has been duly authorized, executed and
delivered by the Indenture Trustee and, assuming the necessary
authorization, execution and delivery thereof by the other
parties thereto, is a valid and legally binding agreement under
the laws of the State of ______, enforceable thereunder against
the Indenture Trustee in accordance with its terms; and
(vi) The Offered Notes have been duly authenticated and delivered by the
Indenture Trustee in accordance with the Indenture.
(l) The Underwriters shall have received an opinion of counsel to the Owner
Trustee, dated the Closing Date, in form and substance satisfactory to the
Underwriters and their counsel, to the effect that:
(i) The Owner Trustee is duty incorporated and is validly existing and in
good standing as a banking corporation under the laws of the
State of _____ and has the power and authority to execute,
deliver and perform the Trust Agreement;
(ii) The Trust Agreement has been duly authorized, executed and delivered by
the Owner Trustee;
(iii) Neither the execution, delivery and performance by the Owner Trustee of
the Trust Agreement, nor the consummation of any of the
transactions by the Owner Trustee contemplated thereby, requires
the consent or approval of, the withholding of objection on the
part of, the giving of notice to, the filing, registration or
qualification with, or the taking of any other action in respect
of, any governmental authority or agency of the State of ______
or the United States of America governing the trust powers of the
Owner Trustee;
(iv) Neither the execution, delivery and performance by the Owner Trustee of
the Trust Agreement, nor the consummation of any of the
transactions by the Owner Trustee contemplated thereby, is in
violation of the charter or bylaws of the Owner Trustee or of any
law, governmental rule or regulation of the State of ______ or of
the United States of America governing the trust powers of the
Owner Trustee or, to counsel's knowledge without independent
investigation, of any indenture, mortgage, bank credit agreement,
note or bond purchase agreement, long-term lease, license or
other agreement or instrument to which it is a party or by which
it is bound or, to counsel's knowledge without independent
investigation, of any judgment or order applicable to the Owner
Trustee; and
19
(v) To counsel's knowledge without independent investigation, there are no
proceedings pending or threatened against the Owner Trustee in
any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the
aggregate, would have a material adverse effect on the right,
power and authority of the Owner Trustee to enter into or perform
its obligations under the Trust Agreement.
(m) The Underwriters shall have received an opinion of counsel to the
Issuer, dated the Closing Date, in form substance satisfactory to the
Underwriters and their counsel to the effect that:
(i) The Trust has been duly formed and is validly existing and in good
standing as a statutory trust under Delaware Statutory Trust Act,
12 Del. C. ss. 3801, et seq. (the "Act"), and has the power and
authority under the Trust Agreement and the Act to execute,
deliver and perform its obligations under the Basic Documents.
(ii) The Basic Documents have been duly authorized, executed and delivered
by the Trust.
(iii) The Certificates have been duly executed by the Trust and when
authenticated on behalf of the Trust and delivered upon the
written order of the Depositor in accordance with the Trust
Agreement, will be validly issued and entitled to the benefits of
the Trust Agreement.
(iv) Neither the execution, delivery and performance by the Trust of the
Basic Documents, nor the consummation by the Trust of any of the
transactions contemplated thereby, requires the consent or
approval of, the withholding of objection on the part of, the
giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Delaware, other
than the filing of the Certificate of Trust with the Secretary of
State.
(v) Neither the execution, delivery and performance by the Trust of the
Basic Documents, nor the consummation by the Trust of the
transactions contemplated thereby, is in violation of the Trust
Agreement or of any law, rule or regulation of the State of
Delaware applicable to the Trust.
(vi) The Trust Agreement is the legal, valid and binding obligation of the
Owner Trustee and the Company, enforceable against the Owner
Trustee and the Company, in accordance with its terms.
(n) [The Underwriters shall have received an opinion of counsel to _______
(the "Enhancer"), dated the Closing Date, in form substance satisfactory to
the Underwriters and their counsel to the effect that:
20
(i) The Enhancer is a _______ duly organized and validly existing under the
laws of the State of _______ and duly qualified to conduct an
insurance business in the State of _______. The Enhancer is
validly licensed and authorized to issue the Policy and perform
its obligations under the Policy in accordance with the terms
thereof under the laws of the State of _______.
(ii) The Enhancer has full _______ power and authority to execute and
deliver the Policy, and the Policy has been duly authorized,
executed and delivered by the Enhancer and constitutes a legal,
valid and binding obligation of the Enhancer enforceable in
accordance with its terms except to the extent that the
enforceability (but not the validity) of such obligation may be
limited by any applicable bankruptcy, insolvency, liquidation,
rehabilitation or other similar law or enactment now or hereafter
enacted affecting the enforcement of creditors' rights generally
and by general principles of equity and general principles of
public policy.
(iii) The execution and delivery by the Enhancer of the Policy and the
Agreements will not, and the consummation of the transactions
contemplated thereby and the satisfaction of the terms thereof
will not, conflict with or result in a breach of any of the
terms, conditions or provisions of the Certificate of Authority,
Restated Articles of Incorporation or By-Laws of the Enhancer, or
to counsel's knowledge, any restriction contained in any
contract, agreement or instrument to which the Enhancer is a
party or by which it is bound or constitute a default under any
of the foregoing.
(iv) Proceedings legally required for the issuance of the Policy have been
taken by the Enhancer and licenses, orders, consents or other
authorizations or approvals of any governmental boards or bodies
legally required for the enforceability of the Policy have been
obtained; any proceedings not taken and any licenses,
authorizations or approvals not obtained are not material to the
enforceability of the Policy.
(v) The Policy is exempt from registration under the Securities Act of
1933, as amended.
(vi) To counsel's knowledge, there is no action, suit, proceeding or
investigation pending against or affecting the Enhancer in any
court, or before or by any governmental body, which asserts the
invalidity or unenforceability of the Policy.
(vii) The statements contained in the Prospectus Supplement under the
headings "The Enhancer" and "Description of the Policy", insofar
as such statements constitute summaries of the matters referred
to therein, accurately reflect and fairly present the information
purported to be shown and, insofar as such statements describe
the Enhancer, fairly and accurately describe the Enhancer, other
than any financial or statistical information contained or
incorporated by reference therein, as to which counsel expresses
no opinion.
21
(viii) The Enhancer has full corporate power and authority to execute
and deliver the Agreements and the Agreements have been duly
executed and are the valid and binding obligations of the
Enhancer enforceable in accordance with their terms except to the
extent that the enforceability (but not the validity) of such
obligation may be limited by any applicable bankruptcy,
insolvency, liquidation, rehabilitation or other similar law or
enactment now or hereafter enacted affecting the enforcement of
creditors' rights and by general principles of equity and subject
to general principles of public policy (including, but not
limited to, those limiting the right to enforce the
indemnification provisions contained therein).]
(o) [The Underwriters shall have received an opinion of in-house counsel to
the Yield Maintenance Provider, dated the Closing Date, in form and substance
satisfactory to the Underwriters and their counsel.]
(p) [The Yield Maintenance Agreement shall have been executed by the Yield
Maintenance Provider and the Indenture Trustee.]
(q) On or before the Closing Date, the Representative shall have received
evidence satisfactory to it that the Offered Notes have been given the
ratings set forth on Schedule I hereto.
(r) At the Closing Date, the Offered Notes and the Indenture will conform
in all material respects to the descriptions thereof contained in the
Prospectus.
(s) The Underwriters shall not have discovered and disclosed to the Company
on or prior to the Closing Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact or omits to state a fact which, in the opinion of counsel
to the Underwriters, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(t) All corporate proceedings and other legal matters relating to the
authorization, form and validity of this Agreement, the Trust Agreement, the
Indenture, the Mortgage Loan Purchase Agreement, the Offered Notes, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby, shall be
reasonably satisfactory in all respects to counsel for the Representative,
and the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters.
The Company will provide or cause to be provided to the Underwriters
such conformed copies of such opinions, certificates, letters and documents
as the Underwriters may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Representative.
22
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Company at any time at or
prior to the Closing Date, and such termination shall be without liability of
any party to any other party except as provided in Section 7.
SECTION 7. Reimbursement of the Underwriters's Expenses. If the sale of the
Offered Notes provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by the Underwriters, the Company will
reimburse the Underwriters upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by it in connection with the proposed purchase and sale
of the Offered Notes.
SECTION 8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Underwriters and
the Servicer, and any person who controls the Underwriters or the Servicer
within the meaning of either the Act or the Exchange Act, against any and all
losses, claims, damages or liabilities, to which they may become subject
under the Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration of the
Offered Notes as originally filed or in any amendment thereof, or in the Base
Prospectus or the Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading, or (ii) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
the Preliminary Prospectus or any Issuer Free Writing Prospectus, or any
omission or alleged omission to state therein a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, or (iii) arise out of or are based upon any untrue
statement of a material fact or alleged untrue statement of a material fact
contained in any Underwriter Prepared Issuer FWP or any Underwriter Free
Writing Prospectus or any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, that in either case
was caused by (x) any error or omission in any Pool Information or (y) or any
information accurately extracted from the Preliminary Prospectus or any
Issuer Free Writing Prospectus and included in any Underwriter Prepared
Issuer FWP or Underwriter Free Writing Prospectus, and agrees to reimburse
the Underwriters and the Servicer and each such controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made (A) therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of the Underwriters (in the case of any indemnity for the benefit of the
Underwriters or any person who controls any Underwriter) or the Servicer (in
the case of any indemnity for the benefit of the Servicer or any person who
controls the Servicer) specifically for use in connection with the
preparation thereof or (B) in any Current Report or any amendment or
supplement thereof, and (ii) such indemnity with respect to the Prospectus
shall not inure to the benefit of the Underwriters (or any person controlling
the Underwriters) from whom the person asserting any such loss, claim, damage
or liability purchased the Offered Notes which are the subject thereof if
such person did not receive a copy of the Prospectus (or the Prospectus as
amended or supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Offered Notes
to such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in the Base
Prospectus was corrected in the Prospectus (or the Prospectus as amended or
supplemented). This indemnity agreement will inure to the benefit of each of
the members, directors, officers, representatives and agents of each of the
Underwriters and will be in addition to any liability which the Company may
otherwise have.
23
(b) Each of the Underwriters, severally but not jointly, agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement and the Servicer and each
person who controls the Company or the Servicer within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity
from the Company to the Underwriters and the Servicer, but only with
reference to (A) written information relating to the Underwriters furnished
to the Company by or on behalf of the Underwriters specifically for use in
the preparation of the documents referred to in the foregoing indemnity or
(B) any Computational Materials, Collateral Term Sheets or ABS Term Sheets
furnished to the Company by the Underwriters pursuant to Section 11 and
incorporated by reference in the Registration Statement or the Prospectus;
provided, however, that each Underwriter makes such indemnity only with
respect to the extent such Computational Materials, Collateral Term Sheets or
ABS Term Sheets were prepared by it; provided, further, that no such
indemnity shall be available for any losses, claims, damages or liabilities,
or actions in respect thereof resulting from any error in the information
concerning the Mortgage Loans (a "Collateral Error") furnished by the
Servicer to the Underwriters in writing or by electronic transmission that
was used in the preparation of any Computational Materials, Collateral Term
Sheets or ABS Term Sheets included in any Current Report (or amendment or
supplement thereof), other than a Collateral Error as to which, prior to the
time of confirmation of the sale of the Offered Notes to the person asserting
a claim, the Servicer notified the Underwriters in writing of the Collateral
Error or provided in written or electronic form information superseding or
correcting such Collateral Error (in any such case, a "Corrected Collateral
Error"), and the Underwriters failed to notify such person thereof or to
deliver such person corrected Computational Materials, Collateral Term Sheets
and/or ABS Term Sheets, as applicable. This indemnity agreement will be in
addition to any liability which the Underwriters may otherwise have. The
Company and the Servicer acknowledge that the statements set forth in the
Prospectus Supplement in the second sentence of the last paragraph on the
cover page, in the first sentence under the subheading "Risk Factors--Limited
liquidity of the notes may limit the ability to sell the notes or realize a
desired yield" and in the second, fourth and fifth paragraphs under the
heading "Underwriting" constitute the only information furnished in writing
by or on behalf of the Underwriters for inclusion in the documents referred
to in the foregoing indemnity (other than any Computational Materials,
Collateral Term Sheets or ABS Term Sheets furnished to the Company by the
Underwriters).
24
(c) The Servicer agrees to indemnify and hold harmless the Company, each of
its directors, each of its officers who signs the Registration Statement, the
Underwriters and each person who controls the Company or the Underwriters
within the meaning of either the Act or the Exchange Act, to the same extent
as the foregoing indemnity from the Company to the Underwriters and the
Servicer, but only with reference to (A) written information relating to the
Servicer or the Mortgage Loans furnished to the Company by or on behalf of
the Servicer specifically for use in the preparation of the documents
referred to in the foregoing indemnity and (B) any Collateral Error with
respect to the Mortgage Loans, other than a Corrected Collateral Error. The
Company and the Underwriters acknowledge that the statements set forth under
the headings "Description of the Mortgage Loans--Initial Mortgage Loan
Characteristics," "Description of the Mortgage Loans--Underwriting Standards,"
"The Seller and Servicer--General" and "The Seller and Servicer--Delinquency
and Loss Experience of the Servicer's Portfolio" in the Prospectus Supplement
constitute the only information furnished in writing by or on behalf of the
Servicer for inclusion in the documents referred to in the foregoing
indemnity.
(d) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not
be liable to such indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the Underwriters in
the case of subparagraphs (a) or (c), representing the indemnified parties
under subparagraphs (a) or (c) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that if clause (i) or (iii)
is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
25
(e) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraphs (a), (b) or (c) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company, the Underwriters or the Servicer on
the grounds of policy or otherwise, the Company, the Underwriters or the
Servicer shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the Company, the
Underwriters or the Servicer may be subject, as follows:
(i) in the case of any losses, claims, damages and liabilities (or actions
in respect thereof) which do not arise out of or are not based
upon any untrue statement or omission of a material fact in any
Computational Materials, Collateral Term Sheets or ABS Term
Sheets, in such proportion as is appropriate to reflect the
relative benefit received by each of the Company, the
Underwriters and the Servicer; and
(ii) in the case of any losses, claims, damages and liabilities (or actions
in respect thereof) which arise out of or are based upon any
untrue statement or omission of a material fact in any
Computational Materials, Collateral Term Sheets or ABS Term
Sheets, in such proportion as is appropriate to reflect the
relative fault of the Company, the Underwriters and the Servicer
in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable
considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact in such Computational
Materials, Collateral Term Sheets or ABS Term Sheets results from
information prepared by the Company, the Underwriters or the
Servicer and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission.
Notwithstanding the provisions of this paragraph (e), no Underwriter shall be
required to contribute any amount in excess of the underwriting discount for
such Underwriter. Notwithstanding anything to the contrary in this paragraph
(e), no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls the Underwriters within the meaning
of either the Act or the Exchange Act shall have the same rights to
contribution as the Underwriters, each person who controls the Servicer
within the meaning of either the Act or the Exchange Act shall have the same
rights to contribution as the Servicer and each person who controls the
Company within the meaning of either the Act or the Exchange Act, and each
officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as
the Company, subject in each case to the preceding sentence of this paragraph
(e). Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another
party or parties under this paragraph (e), notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise
than under this paragraph (e).
26
SECTION 9. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers, the Servicer and of the Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters, the
Servicer or the Company or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Offered Notes. The provisions of Sections 7 and 8 hereof and
this Section 9 shall survive the termination or cancellation of this
Agreement.
SECTION 10. Effectiveness of Agreement and Termination. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
This Agreement shall be subject to termination in the absolute
discretion of the Underwriters, by notice given to the Company prior to
delivery of and payment for the Offered Notes, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have
been suspended or limited or minimum prices shall have been established on
such Exchange, (ii) a banking moratorium shall have been declared by federal
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on
the financial markets of the United States is such as to make it, in the
reasonable judgment of the Underwriters, impracticable to market the Offered
Notes.
SECTION 11. Computational Materials and ABS Term Sheets.
(a) Not later than 10:30 a.m., Eastern time, on a date no later than four
business days before delivery of the Prospectus to the Underwriters, the
Underwriters shall deliver to the Company five complete copies of all
materials provided by the Underwriters to prospective investors in the
Offered Notes which constitute either (i) "Computational Materials" within
the meaning of the no-action letter dated May 20, 1994 issued by the Division
of Corporation Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Peabody & Co. Incorporated, and Xxxxxx Structured
Asset Corporation and the no-action letter dated May 27, 1994 issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (together, the "Xxxxxx Letters") or (ii) "ABS Term Sheets" within
the meaning of the no-action letter dated February 17, 1995 issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter" and together with the Xxxxxx Letters, the
"No-Action Letters"), if the filing of such materials with the Commission is
a condition of the relief granted in such letters. In the case of any such
materials that constitute "Collateral Term Sheets" within the meaning of the
PSA Letter, if such Collateral Term Sheets have not previously been delivered
to the Company as contemplated by Section 11(b)(i) below, five complete
copies of such Collateral Term Sheets shall be delivered by the Underwriters
to the Company no later than 10:30 a.m., Eastern time, on the first business
day following the date on which such Collateral Term Sheets were initially
provided to a potential investor. Each delivery of Computational Materials,
Collateral Term Sheets and/or ABS Term Sheets to the Company pursuant to this
paragraph (a) shall be effected by delivering four copies of such materials
to counsel for the Company on behalf of the Company and one copy of such
materials to the Company at the address specified in Section 12 hereof.
27
(b) The Underwriters represent and warrant to and agree with the Company,
as of the date hereof and as of the Closing Date, that:
(i) if the Underwriters have provided any Collateral Term Sheets to
potential investors in the Offered Notes prior to the date hereof
and if the filing of such materials with the Commission is a
condition of the relief granted in the PSA Letter, then in each
such case the Underwriters delivered four copies of such
materials to counsel for the Company on behalf of the Company and
one copy of such materials to the Company at the address
specified in Section 12 hereof no later than 10:30 a.m., Eastern
time, on the first business day following the date on which such
materials were initially provided to a potential investor;
(ii) the Computational Materials (either in original, aggregated or
consolidated form), Collateral Term Sheets and ABS Term Sheets
furnished to the Company pursuant to Section 11(a) or as
contemplated in Section 11(b)(i) constitute all of the materials
furnished to prospective investors by the Underwriters (whether
in written, electronic or other format) prior to the time of
delivery thereof to the Company with respect to the Offered Notes
in accordance with the No-Action Letters, and such Computational
Materials, Collateral Term Sheets and ABS Term Sheets comply with
the requirements of the No-Action Letters;
(iii) except as resulting directly from any Collateral Error, on the
respective dates any such Computational Materials, Collateral
Term Sheets and/or ABS Term Sheets with respect to the Offered
Notes were last furnished to each prospective investor and on the
date of delivery thereof to the Company pursuant to this Section
11 and on the Closing Date, such Computational Materials,
Collateral Term Sheets and/or ABS Term Sheets did not and will
not include any untrue statement of a material fact, or, when
read in conjunction with the Prospectus, omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(iv) all Computational Materials, Collateral Term Sheets and ABS Term Sheets
contained and will contain a legend, prominently displayed on the
first page thereof, to the effect that the Company has not
prepared, reviewed or participated in the preparation of such
Computational Materials, Collateral Term Sheets or ABS Term
Sheets, is not responsible for the accuracy thereof and has not
authorized the dissemination thereof;
(v) all Collateral Term Sheets with respect to the Offered Notes furnished
to potential investors contained and will contain a legend,
prominently displayed on the first page thereof, indicating that
the information contained therein will be superseded by the
description of the Mortgage Loans contained in the Prospectus
and, except in the case of the initial Collateral Term Sheet,
that such information supersedes the information in all prior
Collateral Term Sheets; and
28
(vi) on and after the date hereof, the Underwriters shall not deliver or
authorize the delivery of any Computational Materials, Collateral
Term Sheets, ABS Term Sheets or other materials relating to the
Offered Notes (whether in written, electronic or other format) to
any potential investor unless such potential investor has
received a Prospectus prior to or at the same time as the
delivery of such Computational Materials, Collateral Term Sheets,
ABS Term Sheets or other materials.
Notwithstanding the foregoing, the Underwriters make no representation or
warranty as to whether any Computational Materials, Collateral Term Sheets or
ABS Term Sheets included or will include any untrue statement resulting
directly from any Collateral Error (except any Corrected Collateral Error,
with respect to materials prepared after the receipt by the Underwriters from
the Company or the Servicer of notice of such Corrected Collateral Error or
materials superseding or correcting such Corrected Collateral Error).
(c) The Underwriters acknowledge and agree that the Company has not
authorized and will not authorize the distribution of any Computational
Materials, Collateral Term Sheets or ABS Term Sheets to any prospective
investor, and agree that any Computational Materials, Collateral Term Sheets
or ABS Term Sheets with respect to the Offered Notes furnished to prospective
investors shall include a disclaimer as contemplated in paragraph (b)(v)
above. The Underwriters agree that they will not represent to investors that
any Computational Materials, Collateral Term Sheets and/or ABS Term Sheets
were prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the Offered Notes is
required to be delivered under the Act, it shall be necessary to amend or
supplement the Prospectus as a result of an untrue statement of a material
fact contained in any Computational Materials, Collateral Term Sheets or ABS
Term Sheets provided by the Underwriters pursuant to this Section 11 or the
omission to state therein a material fact required, when considered in
conjunction with the Prospectus, to be stated therein or necessary to make
the statements therein, when read in conjunction with the Prospectus, not
misleading, or if it shall be necessary to amend or supplement any Current
Report to comply with the Act or the rules thereunder, the Underwriters, at
their expense, promptly will prepare and furnish to the Company for filing
with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance. The
Underwriters represent and warrant to the Company, as of the date of delivery
of such amendment or supplement to the Company, that such amendment or
supplement will not include any untrue statement of a material fact or, when
read in conjunction with the Prospectus, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Company shall have no obligation to file such amendment or
supplement if the Company determines that (i) such amendment or supplement
contains any untrue statement of a material fact or, when read in conjunction
with the Prospectus, omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to review or
pass upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by the Underwriters to the Company pursuant to this
paragraph (d) or (ii) such filing is not required under the Act.
29
(e) The Underwriters (at their own expense) further agree to provide to the
Company any accountants' letters obtained relating to the Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets, which accountants'
letters shall be addressed to the Company or shall state that the Company may
rely thereon; provided that the Underwriters shall have no obligation to
procure such letter.
SECTION 12. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notice to the
Underwriters shall be directed to _________, [address], Attention: _______;
notices to the Company shall be directed to it at Wachovia Mortgage Loan
Trust, LLC, [address], Attention: General Counsel and Chief Financial
Officer; and notices to the Servicer shall be directed to _________,
[address], Attention: _______.
SECTION 13. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company, the Underwriters, the Servicer, any controlling
persons referred to herein and their respective successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Offered Notes from the
Underwriters shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (BUT WITH
REFERENCE TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH BY
ITS TERMS APPLIES TO THIS AGREEMENT).
SECTION 15. Reserved.
SECTION 16. Miscellaneous.
(a) This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof.
(b) Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against whom
enforcement of such change, waiver, discharge or termination is sought.
(c) This Agreement may be signed in any number of counterparts each of
which shall be deemed an original, which taken together shall constitute one
and the same instrument.
30
(d) The headings of the Sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this
Agreement.
31
If the foregoing is in accordance with your understanding of our
agreement, please sign this Agreement and return it to us.
Very truly yours,
WACHOVIA MORTGAGE LOAN TRUST, LLC
By:______________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above.
[NAME OF LEAD UNDERWRITER]
Acting on behalf of
itself and as the
Representative of
the Underwriters
By:__________________________________
Name:
Title:
Solely for purposes of Sections 6, 8, 9, 10 and 12-15:
[NAME OF SERVICER],
as Servicer
By:__________________________________
Name:
Title:
[Underwriting Agreement]
SCHEDULE I
Offered Notes: Asset-Back Notes, Series [_____], Class __.
Registration Statement File Number: 333-______.
Initial Principal Amount of Offered Notes:
Class Initial Note Balance
---------------------- ------------------------------
Class __ $_______
Classes of Book-Entry
Notes: Class __.
Description of Mortgage Loans: Fixed-rate and adjustable-rate
one-to-four-family residential mortgage
loans having an aggregate principal
balance as of the Cut-Off Date of
approximately $_______.
Denominations: The Offered Notes listed above under
Book-Entry Notes will be issued in
book-entry form. Each such Note will be
evidenced by one or more notes registered
in the name of Cede & Co. ("Cede") in the
aggregate amount equal to the Initial
Note Balance of such Class. Interests in
such Classes of Offered Notes issued in
the name of Cede may be purchased by
investors in minimum denominations of
$_______ and integral multiples of
$_______.
Cut-Off Date: _____ __, 200_
Note Ratings:
Class __
S&P Xxxxx'x
____ ____
Amount of Series [_____],
Underwriter Class __ Notes to be Purchased
------------------------------------------
______________ $_______
$_______
$_______
Purchase Price Percentage:
Class __ Notes _____%
