EXHIBIT 1.1
WACHOVIA BANK
COMMERCIAL MORTGAGE TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-C5
UNDERWRITING AGREEMENT
Charlotte, North Carolina
June 24, 2003
WACHOVIA SECURITIES, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
NOMURA SECURITIES INTERNATIONAL, INC.
2 World Financial Center
Building B
New York, New York 10281-1198
CITIGROUP GLOBAL MARKETS INC.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX BROTHERS INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Wachovia Commercial Mortgage Securities, Inc., a North Carolina
corporation (the "Company"), has issued its Commercial Mortgage Pass-Through
Certificates, Wachovia Bank Commercial Mortgage Trust Series 2003-C5 (the
"Certificates"), in twenty-two classes (each, a "Class") as designated in the
Prospectus Supplement (as defined below). Pursuant to this underwriting
agreement (the "Agreement"), the Company further proposes to sell to Wachovia
Securities, LLC ("WSL"), Nomura Securities International, Inc. ("Nomura
Securities"), Citigroup Global Markets Inc. ("Citigroup") and Xxxxxx Brothers
Inc. ("Xxxxxx", and each of WSL, Nomura Securities, Citigroup and Xxxxxx
individually, an "Underwriter" and, collectively, the "Underwriters") the
Certificates set forth in Schedule I hereto (the "Underwritten Certificates") in
the respective original principal amounts set forth in Schedule I. The
Certificates represent in the aggregate the entire beneficial ownership interest
in a trust fund (the "Trust Fund") consisting of a segregated pool (the
"Mortgage Pool") of 152 mortgage loans (the "Mortgage Loans") having an
approximate aggregate principal balance of $1,200,914,923 as of the Cut-Off Date
secured by first liens on certain fee or leasehold interests in multifamily and
commercial properties (the "Mortgaged Properties"). The Certificates will be
issued on July 8, 2003 (the "Closing Date") pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of July 1, 2003,
among the Company, Wachovia Bank, National Association, as master servicer (in
such capacity, the "Master Servicer"), Lennar Partners, Inc., as special
servicer (in such capacity, the "Special Servicer"), and Xxxxx Fargo Bank
Minnesota, N.A., as trustee (the "Trustee"). Sixty-four (64) of the Mortgage
Loans (the "Wachovia Mortgage Loans"), having an aggregate principal balance of
$671,952,012.77 as of the Cut-Off Date, were acquired by the Company from
Wachovia Bank, National Association ("Wachovia") pursuant to a mortgage loan
purchase agreement, dated as of July 1, 2003 (the "Wachovia Mortgage Loan
Purchase Agreement"), between Wachovia and the Company. Eighteen (18) of the
Mortgage Loans, having an aggregate principal balance of $202,677,632.09 as of
the Cut-off Date, were acquired by the Company from Citigroup Global Markets
Realty Corp. ("Citigroup Realty") pursuant to a mortgage loan purchase agreement
dated as of July 1, 2003 (the "Citigroup Mortgage Loan Purchase Agreement"),
between Citigroup Realty and the Company. Thirty-eight (38) of the Mortgage
Loans (the "Nomura Mortgage Loans"), having an aggregate principal balance of
$177,459,559.90 as of the Cut-Off Date, were acquired by the Company from Nomura
Credit & Capital, Inc., ("Nomura") pursuant to a mortgage loan purchase
agreement, dated as of July 1, 2003 (the "Nomura Mortgage Loan Purchase
Agreement"), between Nomura and the Company. Thirty-two (32) of the Mortgage
Loans (the "Artesia Mortgage Loans"), having an aggregate principal balance of
$148,825,718.12 as of the Cut-Off Date, were acquired by the Company from
Artesia Mortgage Capital Corporation ("Artesia") pursuant to a mortgage loan
purchase agreement, dated as of July 1, 2003 (the "Artesia Mortgage Loan
Purchase Agreement" and, collectively with the Wachovia Mortgage Loan Purchase
Agreement, the Citigroup Mortgage Loan Purchase Agreement and the Nomura
Mortgage Loan Purchase Agreement, the "Mortgage Loan Purchase Agreements"),
between Artesia and the Company. Each of Wachovia, Nomura, Citigroup Realty and
Artesia is individually referred to herein as a "Mortgage Loan Seller" and,
collectively, are referred to herein as the "Mortgage Loan Sellers".
Two separate real estate mortgage investment conduit ("REMIC")
elections will be made with respect to most of the Trust Fund for federal income
tax purposes. In addition, a separate REMIC election has been made with respect
to one early defeasance Mortgage Loan. The Underwritten Certificates and the
Mortgage Pool are described more fully in Schedule I hereto and in a
registration statement furnished to you by the Company.
Capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned to them in the Pooling and Servicing Agreement.
1. Representations and Warranties. (a) The Company represents and
warrants to, and agrees with, each Underwriter that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-83930) on
Form S-3 for the registration of Commercial Mortgage Pass-Through
Certificates, issuable in series, including the Underwritten Certificates,
under the Securities Act of 1933, as amended (the "1933 Act"), which
registration statement has become effective and a copy of which, as
amended to the date hereof, has heretofore been delivered to you. The
Company meets the requirements for use of Form S-3 under the 1933 Act, and
such registration statement, as amended at the date hereof, meets the
requirements set forth in Rule 415(a)(1)(x) under the 1933 Act and
complies in all other material respects with the 1933 Act and the rules
and regulations thereunder. The Company proposes to file with the
Commission, with your consent, pursuant to Rule 424 under the 1933 Act, a
supplement dated June 24, 2003 (the "Prospectus Supplement") to the
prospectus dated June 24, 2003 (the "Basic Prospectus"), relating to the
Underwritten Certificates and the method of distribution thereof, and has
previously advised you of all further information (financial and other)
with respect to the Underwritten Certificates and the Mortgage Pool to be
set forth therein. Such registration statement (No. 333-83930), including
all exhibits thereto, is referred to herein as the "Registration
Statement"; and the Basic Prospectus and the Prospectus Supplement,
together with any amendment thereof or supplement thereto authorized by
the Company prior to the Closing Date for use in connection with the
offering of the Underwritten Certificates, are hereinafter called the
"Prospectus". Any preliminary form of the Prospectus Supplement that has
heretofore been filed pursuant to Rule 424 or, prior to the effective date
of the Registration Statement, pursuant to Rule 402(a) or 424(a), is
hereinafter called a "Preliminary Prospectus Supplement". If so stated in
the Prospectus Supplement, the Company will file with the Commission
within fifteen days of the issuance of the Underwritten Certificates a
report on Form 8-K ("8-K") setting forth specific information concerning
the Mortgage Pool and the Underwritten Certificates to the extent that
such information is not set forth in the Prospectus Supplement. As used
herein, "Pool Information" means the mortgage pool information reflected
in the Master Tape and the Prospectus Supplement. The "Master Tape" shall
mean the compilation of information and data regarding the Mortgage Loans
covered by the letters rendered by KPMG LLP (a "hard copy" of which Master
Tape was produced on behalf of the Mortgage Loan Sellers) described in
Section 6(h)(ii) in this Agreement.
(ii) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of
the date on which, prior to the Closing Date, any amendment to the
Registration Statement becomes effective, as of the date on which any
supplement to the Prospectus Supplement is filed with the Commission, and
as of 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, complies and will comply in all material respects with the
applicable requirements of the 1933 Act and the rules and regulations
thereunder, (ii) the Registration Statement, as amended as of any such
time, does not include and will not include any untrue statement of a
material fact and does not omit and will not omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, and (iii) the Prospectus, as amended or
supplemented as of any such time, does not include and will not include
any untrue statement of a material fact and does not omit and will not
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations
or warranties as to (x) statements contained in or omitted from the
Registration Statement or the Prospectus or any amendment or supplement
thereto made in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through you
specifically for use in the Registration Statement and the Prospectus
(such information being identified in Section 8(b)), or (y) the Mortgage
Loan Seller Covered Information (as defined in Section 8 hereof).
(iii) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of North
Carolina with corporate power and authority to own, lease or operate its
properties and to conduct its business as now conducted by it and to enter
into and perform its obligations under this Agreement and the Pooling and
Servicing Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business.
(iv) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of
the date on which, prior to the Closing Date, any amendment to the
Registration Statement becomes effective, as of the date on which any
supplement to the Prospectus Supplement is filed with the Commission, and
as of the Closing Date, there has not and will not have been (i) any
request by the Commission for any further amendment to the Registration
Statement or the Prospectus or for any additional information, (ii) any
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threat of any
proceeding for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Underwritten Certificates for sale
in any jurisdiction or any initiation or threat of any proceeding for such
purpose.
(v) Each of this Agreement, the Pooling and Servicing Agreement and
each Mortgage Loan Purchase Agreement has been duly authorized, executed
and delivered by the Company and each of this Agreement, the Pooling and
Servicing Agreement, and each Mortgage Loan Purchase Agreement constitutes
legal, valid and binding agreements of the Company, enforceable against
the Company in accordance with their respective terms, except as
enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting
the enforcement of the rights of creditors generally, (ii) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations
limit the enforceability of the provisions of this Agreement, the Pooling
and Servicing Agreement or any Mortgage Loan Purchase Agreement that
purport to provide indemnification from securities law liabilities.
(vi) As of the Closing Date, the Underwritten Certificates, the
Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements
will conform in all material respects to the respective descriptions
thereof contained in the Prospectus. As of the Closing Date, the
Underwritten Certificates will be duly and validly authorized and, when
delivered in accordance with the Pooling and Servicing Agreement to you
against payment therefor as provided herein, will be duly and validly
issued and outstanding and entitled to the benefits of the Pooling and
Servicing Agreement.
(vii) The Company is not in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture or
instrument the effect of which violation or default would be material to
the Company or which violation or default would have a material adverse
affect on the performance of its obligations under this Agreement, the
Pooling and Servicing Agreement or any Mortgage Loan Purchase Agreement.
Neither the issuance and sale of the Underwritten Certificates, nor the
execution and delivery by the Company of this Agreement or the Pooling and
Servicing Agreement nor the consummation by the Company of any of the
transactions herein or therein contemplated, nor compliance by the Company
with the provisions hereof or thereof, did, does or will conflict with or
result in a breach of any term or provision of the certificate of
incorporation or by-laws of the Company or conflict with, result in a
breach, violation or acceleration of, or constitute a default under, the
terms of any indenture or other agreement or instrument to which the
Company is a party or by which it or any material asset is bound, or any
statute, order or regulation applicable to the Company of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Company.
(viii) There is no action, suit or proceeding against the Company
pending, or, to the knowledge of the Company, threatened, before any
court, arbitrator, administrative agency or other tribunal (i) asserting
the invalidity of this Agreement, the Pooling and Servicing Agreement, any
Mortgage Loan Purchase Agreement or the Underwritten Certificates, (ii)
seeking to prevent the issuance of the Underwritten Certificates or the
consummation of any of the transactions contemplated by this Agreement
(iii) that might materially and adversely affect the performance by the
Company of its obligations under, or the validity or enforceability of,
this Agreement, the Pooling and Servicing Agreement, any Mortgage Loan
Purchase Agreement or the Underwritten Certificates or (iv) seeking to
affect adversely the federal income tax attributes of the Underwritten
Certificates as described in the Prospectus.
(ix) There are no contracts, indentures or other documents of a
character required by the 1933 Act or by the rules and regulations
thereunder to be described or referred to in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration Statement
which have not been so described or referred to therein or so filed or
incorporated by reference as exhibits thereto.
(x) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering or sale of the Underwritten Certificates pursuant to this
Agreement, except such as have been, or as of the Closing Date will have
been, obtained or such as may otherwise be required under applicable state
securities laws in connection with the purchase and offer and sale of the
Underwritten Certificates by the Underwriters and any recordation of the
respective assignments of the Mortgage Loans to the Trustee pursuant to
the Pooling and Servicing Agreement that have not been completed.
(xi) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by it, and the Company has not received any notice of proceedings
relating to the revocation or modification of any such license,
certificate, authority or permit which, singly or in the aggregate, if the
subject of any unfavorable decision, ruling or finding, would materially
and adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company.
(xii) Any taxes, fees and other governmental charges in connection
with the execution and delivery of this Agreement and the delivery and
sale of the Underwritten Certificates (other than such federal, state and
local taxes as may be payable on the income or gain recognized therefrom)
have been or will be paid at or prior to the Closing Date.
(xiii) Neither the Company nor the Trust Fund is, and neither the
sale of the Underwritten Certificates in the manner contemplated by the
Prospectus nor the activities of the Trust Fund pursuant to the Pooling
and Servicing Agreement will cause the Company or the Trust Fund to be, an
"investment company" or under the control of an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(xiv) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Company reported the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and will
report the sale of the Underwritten Certificates to the Underwriters
pursuant to this Agreement as a sale of the interests in the Mortgage
Loans evidenced by the Underwritten Certificates. The consideration
received by the Company upon the sale of the Underwritten Certificates to
the Underwriters will constitute reasonably equivalent value and fair
consideration for the Underwritten Certificates. The Company will be
solvent at all relevant times prior to, and will not be rendered insolvent
by, the sale of the Underwritten Certificates to the Underwriters. In
addition, the Company was solvent at all relevant times prior to, and was
not rendered insolvent by, the transfer of the Mortgage Loans to the
Trustee on behalf of the Trust Fund. The Company is not selling the
Underwritten Certificates to the Underwriters and did not transfer the
Mortgage Loans to the Trustee on behalf of the Trust Fund with any intent
to hinder, delay or defraud any of the creditors of the Company.
(xv) At the Closing Date, the respective classes of Underwritten
Certificates shall continue to have maintained ratings no lower than those
set forth in Schedule I hereto by the nationally recognized statistical
rating organizations identified in Schedule I hereto (individually and
collectively, the "Rating Agency").
(b) Xxxxxxxx represents and warrants to, and agrees with, each
Underwriter, that:
(i) Wachovia is a national banking association validly existing
under the laws of the United States of America and possesses all requisite
authority, power, licenses, permits and franchises to carry on its
business as currently conducted by it and to execute, deliver and comply
with its obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by Xxxxxxxx and, assuming due authorization, execution and
delivery hereof by the Company and the Underwriters, constitutes a legal,
valid and binding obligation of Wachovia, enforceable against Wachovia in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights in general, as they may be
applied in the context of the insolvency of a national banking
association, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and by
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws.
(iii) The execution and delivery of this Agreement by Xxxxxxxx and
Xxxxxxxx's performance and compliance with the terms of this Agreement
will not (A) violate Wachovia's articles of association or by-laws, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any contract, agreement or other instrument to
which Wachovia is a party or by which Wachovia is bound.
(iv) Wachovia is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of Wachovia or its properties or have
consequences that would materially and adversely affect its performance
hereunder.
(v) Wachovia is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that would materially and adversely affect the ability
of Wachovia to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by Wachovia of its obligations under this
Agreement (except to the extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Xxxxxxxx of or compliance by Wachovia with this Agreement
or the consummation of the transactions contemplated by this Agreement
except as have previously been obtained.
(vii) No litigation is pending or, to the best of Xxxxxxxx's
knowledge, threatened against Wachovia that would prohibit its entering
into this Agreement or materially and adversely affect the performance by
Wachovia of its obligations under this Agreement.
(viii) Each representation and warranty of the Company set forth in
Section 1(a) hereof is true and correct as of the date hereof or as of the
date specified in such representation and warranty.
(c) Each Underwriter represents and warrants to the Company that, as
of the date hereof and as of the Closing Date, (i) such Underwriter has complied
in all material respects with all of its obligations under Section 4 hereof and
(ii) with respect to all Computational Materials and Term Sheets (as such terms
are defined in Section 4 herein), if any, provided by such Underwriter to the
Company pursuant to Section 4(b)(iv), such Computational Materials and Term
Sheets are accurate in all material respects (taking into account the
assumptions explicitly set forth or otherwise referred to in the Computational
Materials or in the Prospectus Supplement, the Term Sheets or the Preliminary
Prospectus Supplement, and provided that the underlying data regarding the
Mortgage Loans, and the related Mortgagors and Mortgaged Properties, provided to
the Underwriters by the Mortgage Loan Sellers is accurate and complete in all
material respects) and constitute a complete set of all Computational Materials
and Term Sheets that are required to be filed with the Commission pursuant to
the No-Action Letters (as defined herein).
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Company
agrees to sell to the Underwriters, and the Underwriters agree, severally and
not jointly, to purchase from the Company, at the applicable purchase prices set
forth in Schedule I hereto, the respective principal amounts of the Underwritten
Certificates set forth opposite the name of each Underwriter set forth in
Schedule II hereto, and any additional portions of the Underwritten Certificates
that any such Underwriter may be obligated to purchase pursuant to Section 10,
in all cases plus accrued interest as set forth in Schedule I.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Certificates shall be made in the manner, at the location(s), on
the Closing Date at the time specified in Schedule I hereto (or such later date
not later than ten business days after such specified date as you shall
designate), which date and time may be changed by agreement between you and the
Company or as provided in Section 10 hereof. Delivery of the Underwritten
Certificates shall be made either directly to you or through the facilities of
The Depository Trust Company ("DTC"), as specified in Schedule I hereto, for the
respective accounts of the Underwriters against payment by the respective
Underwriters of the purchase price therefor in immediately available funds wired
to such bank as may be designated by the Company, or such other manner of
payment as may be agreed upon by the Company and you. Any Class of Underwritten
Certificates to be delivered through the facilities of DTC shall be represented
by one or more global Certificates registered in the name of Cede & Co., as
nominee of DTC, which global Certificate(s) shall be placed in the custody of
DTC not later than 10:00 a.m. (New York City time) on the Closing Date pursuant
to a custodial arrangement to be entered into between the Trustee or its agent
and DTC. Unless delivered through the facilities of DTC, the Underwritten
Certificates shall be in fully registered certificated form, in such
denominations and registered in such names as you may have requested in writing
not less than one full business day in advance of the Closing Date.
The Company agrees to have the Underwritten Certificates, including
the global Certificates representing the Underwritten Certificates to be
delivered through the facilities of DTC, available for inspection, checking and,
if applicable, packaging by you in New York, New York, not later than the close
of business (New York City time) on the business day preceding the Closing Date.
References herein, including, without limitation, in the Schedules
hereto, to actions taken or to be taken following the Closing Date with respect
to any Underwritten Certificates that are to be delivered through the facilities
of DTC shall include, if the context so permits, actions taken or to be taken
with respect to the interests in such Certificates as reflected on the books and
records of DTC.
4. Offering by Underwriters.
(a) It is understood that the Underwriters propose to offer the
Underwritten Certificates for sale to the public, including, without limitation,
in and from the State of New York, as set forth in the Prospectus Supplement. It
is further understood that the Company, in reliance upon an exemption from the
Attorney General of the State of New York to be granted pursuant to Policy
Statement 104 and 105, has not and will not file the offering pursuant to
Section 352-e of the General Business Law of the State of New York with respect
to the Underwritten Certificates.
(b) Each Underwriter may prepare and provide to prospective
investors certain Computational Materials, ABS Term Sheets, Structural Term
Sheets or Collateral Term Sheets in connection with its offering of the
Certificates, subject to the following conditions:
(i) Such Underwriter shall comply with the requirements of the
no-action letter, dated May 20, 1994, issued by the Commission to Xxxxxx,
Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and
Xxxxxx Structured Asset Corporation, as made applicable to other issuers
and underwriters by the Commission in response to the request of the
Public Securities Association, dated May 27, 1994 (collectively, the
"Xxxxxx/PSA Letter"), and the requirements of the no-action letter, dated
February 17, 1995, issued by the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Xxxxxx/PSA Letter,
the "No-Action Letters").
(ii) For purposes hereof, "Computational Materials" shall have the
meaning given such term in the No-Action Letters, but shall include only
(x) the Computational Materials attached hereto as Exhibit A and (y) such
other Computational Materials that have been prepared or delivered to
prospective investors by or at the direction of such Underwriter. For
purposes hereof, "ABS Term Sheets," "Structural Term Sheets" and
"Collateral Term Sheets" shall have the meanings given such terms in the
PSA Letter but shall include only (x) the Term Sheets attached hereto as
Exhibit B, and (y) those other ABS Term Sheets, Structural Term Sheets or
Collateral Term Sheets that have been prepared for or delivered to
prospective investors by or at the direction of such Underwriter. As used
herein, "Term Sheets" means any ABS Term Sheets, Structural Term Sheets
and/or Collateral Term Sheets.
(iii) All Computational Materials and Term Sheets provided to
prospective investors shall bear a legend in a form previously approved by
the Company or its counsel.
(iv) Such Underwriter shall not distribute any such Computational
Materials or Term Sheets unless the forms and methodology thereof are in
accordance with this Agreement. Such Underwriter shall provide to the
Company, for filing on Form 8-K as provided in Section 5(g), copies (in
such format as required by the Company) of all Computational Materials and
Term Sheets. The Underwriter may provide copies of the foregoing in a
consolidated or aggregated form including all information required to be
filed. All Computational Materials and Term Sheets described in this
subsection (iv) must be provided to the Company (a) in paper or electronic
format suitable for filing with the Commission and (b) not later than
10:00 a.m. (New York City time) on a business day that is not less than
one business day before filing thereof is required pursuant to the terms
of the No-Action Letters.
(v) All information included in the Computational Materials and Term
Sheets shall be generated based on substantially the same methodology and
assumptions as are used to generate the information in the Prospectus
Supplement as set forth therein; provided that the Computational Materials
and Term Sheets may include information based on alternative methodologies
or assumptions if specified therein. If any Computational Materials or
Term Sheets were based on assumptions with respect to the Mortgage Pool
that differ from the final Pool Information in any material respect or on
Underwritten Certificate structuring assumptions (except in the case of
Computational Materials when the different structuring terms were
hypothesized and so described) that were revised in any material respect
prior to the printing of the Prospectus, then to the extent that it has
not already done so, such Underwriter shall immediately inform the Company
and, upon the direction of the Company, and if not corrected by the
Prospectus, shall prepare revised Computational Materials and Term Sheets,
as the case may be, based on the final collateral information and
structuring assumptions, circulate such revised Computational Materials
and Term Sheets to all recipients of the preliminary versions thereof, and
include such revised Computational Materials and Term Sheets (marked, "as
revised") in the materials delivered to the Company pursuant to subsection
(iv) above.
(vi) If, within the period during which the Prospectus relating to
the Underwritten Certificates is required to be delivered under the 1933
Act, any Computational Materials or Term Sheets are determined, in the
reasonable judgment of the Company or such Underwriter, to contain a
material error or, when read together with the Prospectus, a material
omission, then (unless the material error or omission was corrected in the
Prospectus) the Underwriter shall prepare a corrected version of such
Computational Materials or Term Sheets, shall circulate such corrected
Computational Materials or Term Sheets to all recipients of the prior
versions thereof, and shall deliver copies of such corrected Computational
Materials or Term Sheets (marked, "as corrected") to the Company for
filing with the Commission in a subsequent Form 8-K submission (subject to
the Company's obtaining an accountant's comfort letter in respect of such
corrected Computational Materials and Term Sheets, which shall be at the
expense of such Underwriter).
(vii) Such Underwriter shall be deemed to have represented, as of
the Closing Date, that except for Computational Materials and/or Term
Sheets provided to the Company pursuant to subsection (iv) above, such
Underwriter did not provide any prospective investors with any information
in written or electronic form in connection with the offering of the
Underwritten Certificates that is required to be filed with the Commission
in accordance with the No-Action Letters.
(viii) In the event of any delay in the delivery by such Underwriter
to the Company of all Computational Materials and Term Sheets required to
be delivered in accordance with subsection (iv) 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(g) to file the Computational
Materials and Term Sheets by the time specified therein.
(ix) Computational Materials and Term Sheets may be distributed by
the Underwriter through electronic means in accordance with SEC Release
No. 33-7233 or other applicable laws or regulations.
(c) Each Underwriter further agrees that it shall promptly provide
the Company with such pricing information as the Company may reasonably request
to enable it to comply with its reporting requirements with respect to each
class of Underwritten Certificates to the extent such information can in the
good faith judgment of the Underwriter be reasonably determined by it.
5. Covenants of the Company. The Company covenants and agrees with
the Underwriters that:
(a) The Company will not file any amendment to the Registration
Statement (other than by reason of Rule 429 under the 1933 Act) or any
supplement to the Basic Prospectus relating to or affecting the Underwritten
Certificates, unless the Company has furnished a copy to you for your review
prior to filing, and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the Company will
cause the Prospectus Supplement to be transmitted to the Commission for filing
pursuant to Rule 424 under the 1933 Act or will cause the Prospectus Supplement
to be filed with the Commission pursuant to said Rule 424. The Company promptly
will advise you or counsel for the Underwriters (i) when the Prospectus
Supplement shall have been filed or transmitted to the Commission for filing
pursuant to Rule 424, (ii) when any amendment to the Registration Statement
shall have become effective, (iii) of any request by the Commission to amend the
Registration Statement or supplement the Prospectus Supplement or for any
additional information in respect of the offering contemplated hereby, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereto which shall
have become effective on or prior to the Closing Date 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 Underwritten Certificates for sale in any jurisdiction or the institution
or threatening of any proceeding for that purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or suspension and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Underwritten
Certificates is required to be delivered under the 1933 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 the 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 1933 Act or the rules and
regulations thereunder, the Company promptly will prepare and file with the
Commission, at the expense of the Company, subject to paragraph (a) of this
Section 5, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance and, if such amendment
or supplement is required to be contained in a post-effective amendment to the
Registration Statement, the Company will use its best efforts to cause such
amendment to the Registration Statement to be made effective as soon as
possible.
(c) The Company will furnish to you and to counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date, and, upon request, to each other
Underwriter a copy of the Registration Statement (without exhibits thereto) and
each such amendment and, so long as delivery of a prospectus by an Underwriter
or dealer may be required by the 1933 Act, as many copies of any Preliminary
Prospectus Supplement, the Prospectus Supplement and the Basic Prospectus and
any amendments and supplements thereto as you may reasonably request.
(d) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Underwritten Certificates for sale under the laws of such jurisdictions as you
may designate and will maintain such qualifications in effect so long as
required for the distribution of the Underwritten Certificates; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now subject to such service of process.
(e) The Company will pay, or cause to be paid, all costs and
expenses in connection with the transactions herein contemplated, including, but
not limited to, the fees and disbursements of its counsel; the costs and
expenses of printing (or otherwise reproducing) and delivering the Pooling and
Servicing Agreement and the Underwritten Certificates; the fees and
disbursements of accountants for the Company; the reasonable out-of-pocket costs
and expenses in connection with the qualification or exemption of the
Underwritten Certificates under state securities or "Blue Sky" laws, including
filing fees and reasonable fees and disbursements of counsel in connection
therewith, in connection with the preparation of any "Blue Sky" survey and in
connection with any determination of the eligibility of the Underwritten
Certificates for investment by institutional investors and the preparation of
any legal investment survey; the expenses of printing any such "Blue Sky" survey
and legal investment survey; the cost and expenses in connection with the
preparation, printing and filing of the Registration Statement (including
exhibits thereto), the Basic Prospectus, the Preliminary Prospectus Supplement,
if any, and the Prospectus Supplement, the preparation and printing of this
Agreement and the delivery to the Underwriters of such copies of the Basic
Prospectus and each Preliminary Prospectus Supplement, if any, and Prospectus
Supplement as you may reasonably request; the fees of the Rating Agencies that
are rating the Underwritten Certificates; and the reasonable fees and
disbursements of counsel to the Underwriters.
(f) To the extent that the Pooling and Servicing Agreement provides
that the Underwriters are to receive any notices or reports, or have any other
rights thereunder, the Company will enforce the rights of the Underwriters under
the Pooling and Servicing Agreement and will not consent to any amendment of the
Pooling and Servicing Agreement that would adversely affect such rights of the
Underwriters.
(g) The Company shall, as to itself, and the Company, or pursuant to
the Pooling and Servicing Agreement the Trustee, will be required to, as to the
Trust Fund, satisfy and comply with all reporting requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations
thereunder. The Company will also file with the Commission a report on Form 8-K
setting forth all Computational Materials and Term Sheets provided to the
Company by an Underwriter and identified by it as such within the time period
allotted for such filing pursuant to the No-Action Letters; provided, however,
that prior to such filing of the Computational Materials and Term Sheets by the
Company, each Underwriter must comply with its obligations pursuant to Section
4(b). The Company shall file any corrected Computational Materials described in
Section 4(b)(vi) as soon as practicable following receipt thereof.
(h) The Company shall take all reasonable action necessary to enable
the Rating Agencies to provide their respective credit ratings of the
Underwritten Certificates as described in the Prospectus.
6. Conditions to the Obligations of the Underwriters. The obligation
of each Underwriter hereunder to purchase its allocated share of the
Underwritten Certificates shall be subject to: (i) 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, as of the date the
Prospectus Supplement or any supplement thereto is filed with the Commission and
as of the Closing Date; (ii) the accuracy of the statements of the Company made
in any certificates delivered pursuant to the provisions hereof; (iii) the
performance by the Company of its obligations hereunder; and (iv) the following
additional conditions:
(a) The Registration Statement shall have become effective and no
stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and not withdrawn and no
proceedings for that purpose shall have been instituted or, to the Company's
knowledge, threatened; and the Prospectus Supplement shall have been filed or
transmitted for filing with the Commission in accordance with Rule 424 under the
1933 Act.
(b) You shall have received from Xxxxx, Xxxxx Xxxx & Maw, counsel
for the Underwriters, a favorable opinion, dated the Closing Date, as to such
matters regarding the Underwritten Certificates as you may reasonably request.
(c) The Company shall have delivered to you a certificate of the
Company, signed by an authorized officer of the Company and dated the Closing
Date, to the effect that: (i) the representations and warranties of the Company
in this Agreement are true and correct in all material respects at and as of the
Closing Date with the same effect as if made on the Closing Date; and (ii) the
Company has in all material respects complied with all the agreements and
satisfied all the conditions on its part that are required hereby to be
performed or satisfied at or prior to the Closing Date; and Xxxxxxxx shall have
delivered to you a certificate of Xxxxxxxx, signed by an authorized officer of
Xxxxxxxx and dated the Closing Date, of the President, a Senior Vice President
or a Vice President of Wachovia, to the effect that: (i) the representations and
warranties of Wachovia in this Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on the
Closing Date; and (ii) Xxxxxxxx has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date.
(d) You shall have received (i) with respect to Xxxxxxxx, a
certificate of the Office of the Comptroller of the Currency and (ii) with
respect to the Company a good standing certificate from the Secretary of State
of the State of North Carolina, each dated not earlier than 30 days prior to the
Closing Date.
(e) (i) You shall have received from the Secretary or an assistant
secretary of the Company, in his individual capacity, a certificate, dated the
Closing Date, to the effect that: (x) each individual who, as an officer or
representative of the Company, signed this Agreement, or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures; and (y) no event (including, without limitation, any act or omission
on the part of the Company) has occurred since the date of the good standing
certificate referred to in paragraph 6(d) above which has affected the good
standing of the Company under the laws of the State of North Carolina. Such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an Assistant Secretary of the Company) of the certificate of
incorporation and by-laws of the Company, as in effect on the Closing Date, and
of the resolutions of the Company and any required shareholder consent relating
to the transactions contemplated in this Agreement; and (ii) you shall have
received from the Secretary or an Assistant Secretary of the Wachovia, in his
individual capacity, a certificate, dated the Closing Date, to the effect that:
(x) each individual who, as an officer or representative of Wachovia, signed
this Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures; and (y) no event (including,
without limitation, any act or omission on the part of Wachovia) has occurred
since the date of the certificate referred to in paragraph 6(d) above which has
affected the existence of Wachovia under the laws of the United States of
America. Such certificate shall be accompanied by true and complete copies
(certified as such by the Secretary or an Assistant Secretary of Wachovia) of
the articles of association and by-laws of Wachovia, as in effect on the Closing
Date, and of the resolutions of Wachovia and any required shareholder consent
relating to the transactions contemplated in this Agreement.
(f) You shall have received from Cadwalader, Xxxxxxxxxx & Xxxx,
special counsel for the Company, one or more favorable opinions, dated the
Closing Date and satisfactory in form and substance to you and counsel for the
Underwriters substantially to the effect that:
(i) The statements in the Prospectus under the headings "ERISA
Considerations" and "Material Federal Income Tax Consequences", to the
extent that they describe certain matters of federal law or legal
conclusions with respect thereto, provide a fair and accurate summary of
such matters and conclusions;
(ii) As described in the Prospectus Supplement and assuming
compliance with the provisions of the Pooling and Servicing Agreement,
REMIC I and REMIC II will qualify as a REMIC within the meaning of
Sections 860A through 860G (the "REMIC Provisions") of the Code, the ED
Loan REMIC will qualify as a REMIC within the meaning of the REMIC
Provisions of the Code and the portion of the Trust Fund consisting of the
Additional Interest (as such terms are defined in the Pooling and
Servicing Agreement) will be treated as a grantor trust for federal income
tax purposes under subpart E, Part I of subchapter J of the Code;
(iii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust
Fund created by the Pooling and Servicing Agreement is not required to be
registered under the Investment Company Act, as amended;
(iv) Each Mortgage Loan Purchase Agreement and the Pooling and
Servicing Agreement constitutes the legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
liquidation, receivership, moratorium, reorganization and similar laws
affecting creditors' rights generally, and general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law), and except that: (a) provisions purporting to waive or limit
rights to trial by jury, oral amendments to written agreements or rights
of set-off, (b) provisions relating to submission to jurisdiction, venue
or service of process, (c) interest on interest provisions or (d)
severability clauses may be limited by applicable law or considerations of
public policy;
(v) The Registration Statement is effective under the 1933 Act and,
to such counsel's knowledge, no stop order with respect thereto has been
issued by the Commission;
(vi) The Registration Statement, as of its effective date, and the
Prospectus, as of the date thereof (in each case, with the exception of
any information incorporated by reference therein and any numerical,
financial, statistical and quantitative data included therein), appeared
on their respective faces to be appropriately responsive in all material
respects to the requirements of the 1933 Act and the rules and regulations
thereunder applicable to such documents as of the relevant date;
(vii) The statements contained in the Prospectus Supplement under
the heading "Description of the Certificates", insofar as such statements
purport to summarize material terms of the Certificates, are correct in
all material respects; and
(viii) The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for in accordance with the Underwriting Agreement will
be validly issued and outstanding and entitled to the benefits provided by
the Pooling and Servicing Agreement.
Such opinions may express their reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto. Such opinion may be qualified as an opinion
only on the laws of the State of New York and the federal law of the United
States.
In a separate letter addressed only to the Underwriters, Xxxxxxxxxx,
Xxxxxxxxxx & Xxxx shall additionally state that, based on conferences and
telephone conversations with representatives of Wachovia, Nomura, Citigroup
Realty, Artesia, the Underwriters, the Company, the Trustee, the Master
Servicer, the Special Servicer and their respective counsel, and (with limited
exception) without having reviewed any of the mortgage notes, mortgages or other
documents relating to the Mortgage Loans or made any inquiry of any originator
of any Mortgage Loan, nothing has come to such counsel's attention that would
lead it to believe that (i) the Prospectus (other than: any financial,
numerical, statistical or quantitative information included therein; and
information relating to the Master Servicer, the Special Servicer or the Trustee
contained in or omitted from the Prospectus), at the date of the Prospectus
Supplement or at the Closing Date, contained or contains any untrue statement of
a material fact or omitted or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading or (ii) the Registration Statement (other
than with respect to any exhibits filed therewith or any information
incorporated by reference), at its effective date, 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.
(g) You shall have received from Xxxxxxx X. Xxxxxxx, counsel for the
Company and Wachovia, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to you and counsel for the Underwriters, to
the effect that:
(i) The Company is a corporation in good standing under the laws of
the State of North Carolina and has the corporate power and authority to
enter into and perform its obligations under this Agreement.
(ii) Neither the sale of the Underwritten Certificates, nor the
consummation of any other of the transactions contemplated in or the
fulfillment of the terms of this Agreement, will conflict with or result
in a breach or violation of any term or provision of, or constitute a
default (or an event which with the passing of time or notification, or
both, would constitute a default) under, the articles of incorporation or
by-laws of the Company, or, to the knowledge of such counsel, any
indenture or other agreement or instrument to which the Company is a party
or by which it is bound, or, to the knowledge of such counsel, any order
of any State of North Carolina or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company.
(iii) Wachovia is a national banking association validly existing
under the laws of the United States of America and has the corporate power
and authority to enter into and perform its obligations under this
Agreement.
(iv) To the knowledge of such counsel, there are no actions,
proceedings or investigations pending before or threatened by any court,
administrative agency or other tribunal to which the Company is a party or
of which any of its properties is the subject (a) which, if adversely
determined, would have a material adverse effect on the business or
financial condition of the Company, (b) asserting the invalidity of this
Agreement or the Underwritten Certificates, (c) seeking to prevent the
issuance of the Underwritten Certificates or the consummation by the
Company of any of the transactions contemplated by this Agreement, as the
case may be, or (d) which, if adversely determined, might materially and
adversely affect the performance by the Company of its obligations under,
or the validity or enforceability of, this Agreement;
(v) This Agreement has been duly authorized, executed and delivered
by each of the Company and Wachovia. Each of the Pooling and Servicing
Agreement and each Mortgage Loan Purchase Agreement has been duly
authorized, executed and delivered by the Company.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by Wachovia and the Company of the transactions contemplated
by this Agreement except for those consents, approvals, authorizations or
orders that previously have been obtained, as may be required under
federal or state securities laws, and such real estate filings as may be
required in connection with the transfer of the Mortgage Loans and the
other matters contemplated under the Mortgage Loan Purchase Agreements.
(vii) The fulfillment of the terms of this Agreement will not
conflict with or result in a breach or violation of any term or provision
of, or constitute a default (or an event which with the passing of time or
notification, or both, would constitute a default) under, the articles of
association or by-laws of Wachovia or, to such counsel's knowledge, any
indenture or other agreement or instrument to which Wachovia is a party or
by which it is bound, or to such counsel's knowledge, any order of any
federal court, regulatory body, administrative agency or governmental body
having jurisdiction over Wachovia.
(viii) To the knowledge of such counsel, there are no actions,
proceedings or investigations pending before or threatened by any court,
administrative agency or other tribunal to which Wachovia is a party or of
which any of its properties is the subject (a) which, if adversely
determined, would have a material adverse effect on the business or
financial condition of Wachovia, (b) asserting the invalidity of this
Agreement, (c) seeking to prevent the consummation by Wachovia of any of
the transactions contemplated by this Agreement or (d) which, if adversely
determined, might materially and adversely affect the performance by
Wachovia of its obligations under, or the validity or enforceability of
this Agreement.
(h) You shall have received from KPMG LLP, certified public
accountants, a letter satisfactory in form and substance to you and counsel for
the Underwriters, to the following effect:
(i) they have performed certain specified procedures as a result of
which they have determined that the information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement
under the captions "Summary of Prospectus Supplement," "Description of the
Mortgage Pool" and "Yield and Maturity Considerations" and on Annex A
agrees with the Master Tape prepared by or on behalf of the Mortgage Loan
Sellers, unless non-material deviations are otherwise noted in such
letter; and
(ii) they have compared the data contained in the Master Tape
referred to in the immediately preceding clause (i) to information
contained in an agreed upon sampling of the Mortgage Loan files and in
such other sources as shall be specified by them, and found such data and
information to be in agreement in all material respects, unless
non-material deviations are otherwise noted in such letter.
(i) You shall have received written confirmation from the Rating
Agencies that the ratings assigned to the Underwritten Certificates on the
Closing Date are as described on Schedule I hereto and that, as of the Closing
Date, no notice has been given of (i) any intended or possible downgrading or
(ii) any review or possible changes in such ratings.
(j) You shall have received from the Secretary or an Assistant
Secretary of the Trustee, in his individual capacity, a certificate, dated the
Closing Date, to the effect that the information under the heading "Description
of the Certificates - The Trustee" in the Prospectus Supplement is true and
correct in all material respects.
(k) You shall have received from Xxxxxxx, Xxxxxxxxx, Xxxxxxx &
Xxxxxxx, counsel for the Trustee, a favorable opinion, dated the Closing Date,
in form and substance satisfactory to the Underwriter and counsel for the
Underwriters.
(l) You shall have received from the Secretary or an Assistant
Secretary of the Master Servicer, in his individual capacity, a certificate,
dated the Closing Date, to the effect that the information relating to the
Master Servicer under the heading "Servicing of the Mortgage Loans - The Master
Servicer and the Special Servicer" in the Prospectus Supplement, is true and
correct in all material respects.
(m) You shall have received from Xxxxxx, Xxx, Xxxxx & Xxxxxxxxx,
LLP, counsel for the Master Servicer, a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriter and counsel for the
Underwriters.
(n) You shall have received from the Secretary or an Assistant
Secretary of the Special Servicer, in his individual capacity, a certificate,
dated the Closing Date, to the effect that the information relating to the
Special Servicer under the heading "Servicing of the Mortgage Loans- The Master
Servicer and the Special Servicer" in the Prospectus Supplement, is true and
correct in all material respects.
(o) You shall have received from Bilzin Xxxxxxx Xxxx Xxxxx Price &
Xxxxxxx LLP, counsel for the Special Servicer, a favorable opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriter and counsel
for the Underwriters.
(p) You shall have received from Xxxxxxx X. Xxxxxxx, counsel for
Xxxxxxxx, as Mortgage Loan Seller, a favorable opinion, dated the Closing Date,
in form and substance satisfactory to the Underwriter and counsel for the
Underwriters.
(q) You shall have received copies of any opinions from Xxxxxxxxxx,
Xxxxxxxxxx & Xxxx, special counsel to the Company and Wachovia, Xxxxxx Xxxxxx
Xxxxx & Xxxx LLP, special counsel to Nomura, Artesia, and Citigroup Realty,
supplied to the Rating Agencies relating to certain matters with respect to the
Underwritten Certificates, the transfer of the Mortgage Loans and any other
matters related thereto. Any such opinions shall be dated the Closing Date and
addressed to the Underwriters.
(r) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be satisfactory in
form and substance to you and counsel for the Underwriters, and you and such
counsel shall have received such additional information, certificates and
documents as you or they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates referred to above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to you and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by you. Notice of such cancellation shall be given to
the Company in writing, or by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Underwritten Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 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 any of the Underwriters, the Company and
Wachovia, jointly and severally, will reimburse the Underwriters severally, upon
demand, for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Underwritten Certificates.
8. Indemnification.
(a) The Company and Wachovia, jointly and severally, agree to
indemnify and hold harmless each Underwriter, its officers and directors and
each person, if any, who controls such Underwriter within the meaning of Section
15 of the 1933 Act and Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Basic Prospectus, any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided the foregoing indemnity shall not
inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting claims giving
rise to any such losses, claims, damages, expenses or liabilities
purchased Underwritten Certificates if such untrue statement or omission
or alleged untrue statement or omission made in any Preliminary Prospectus
Supplement or Prospectus is eliminated or remedied in the Prospectus or a
corrected and amended Prospectus as applicable, and, if required by law, a
copy of the Prospectus (as corrected or amended, if applicable) shall not
have been sent to such person at or prior to the written confirmation of
the sale of such Certificates to such person unless such failure to
deliver the Prospectus (as corrected or amended, if applicable) was a
result of the Company's failure to furnish copies thereof in sufficient
quantity; provided, however, that the indemnity provided by this Section
8(a) shall not apply to any loss, liability, claim, damage or expense to
the extent any such untrue statement or alleged untrue statement or
omission or alleged omission arises out of or is based upon an untrue
statement or omission with respect to (A) Seller Information as defined in
Section 7 of each of the related Mortgage Loan Purchase Agreements or (B)
information as described in clause (C) of the term Disclosure Material as
defined in Section 7 of any Mortgage Loan Purchase Agreement (the
information described in clause (A) or clause (B) of this proviso referred
to as "Mortgage Loan Seller Covered Information"); provided further that,
the indemnification provided by this Section 8 shall not apply to the
extent that such untrue statement or omission of a material fact was made
as a result of an error in the manipulation of, or in any calculations
based upon, or in any aggregation of the information regarding the
Mortgage Loans, the related Mortgagors and/or the related Mortgaged
Properties set forth in the Master Tape or Annex A to the Prospectus
Supplement or Preliminary Prospectus Supplement, to the extent (i) such
information was materially incorrect in the Master Tape or such Annex A,
as applicable, including without limitation the aggregation of such
information relating to the Mortgage Loans in the Trust Fund or the
information provided by the related Mortgage Loan Sellers, and (ii) such
loss, liability, claim, damage or expense would be subject to the
provisions of Section 7 of the related Mortgage Loan Purchase Agreements;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company or as otherwise contemplated by Section
8(c); and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by such Underwriter),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above; provided, however, that the indemnity provided by this Section
8(a) shall not apply to any loss, liability, claim, damage or expense to
the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information (as specified in Section 8(b) below) furnished to the
Company by any Underwriter expressly for use in the Registration Statement
(or any amendment thereto) or in the Basic Prospectus, any Preliminary
Prospectus Supplement or the Prospectus Supplement (or any amendment or
supplement thereto).
(b) Each Underwriter, severally but not jointly, agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or in
the Basic Prospectus, any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
expressly for use in the Registration Statement (or any amendment thereto) or in
the Basic Prospectus, such Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment or supplement thereto); provided, that no such
material misstatement or omission arises from an error or omission in
information relating to the underlying data regarding the Mortgage Loans or the
related Mortgagors or Mortgaged Properties provided by the Company or any
Mortgage Loan Seller to such Underwriter. In addition, each Underwriter,
severally but not jointly, shall indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, against any and all losses,
liabilities, claims and damages as incurred arising out of any untrue statement
or alleged untrue statement of a material fact or omission or alleged omission
of a material fact contained in any Term Sheets or Computational Materials
which, when read together with any Preliminary Prospectus Supplement and the
Prospectus Supplement, was required to be stated therein or necessary to make
the statements therein not misleading; provided, that no such material
misstatement or omission arises from an error or omission in information
relating to the underlying data regarding the Mortgage Loans or the related
Mortgagors or Mortgaged Properties provided by the Company or any Mortgage Loan
Seller to such Underwriter; and provided, further, that any such Term Sheets or
Computational Materials were distributed by such Underwriter. It is hereby
acknowledged that (i) the statements set forth in the first, second, third,
fourth, fifth and sixth sentences of the penultimate paragraph on the cover of
the Prospectus Supplement, (ii) the statements in the second paragraph and the
first sentence of the sixth paragraph under the caption "Method of Distribution"
in the Prospectus Supplement and (iii) the statements in any Computational
Materials and Term Sheets delivered by the Underwriters to the Company for
filing with the Commission pursuant to this Agreement and the No-Action Letters,
constitute the only written information furnished to the Company by the
Underwriters expressly for use in the Registration Statement (or any amendment
thereto) or in the Basic Prospectus, the Preliminary Prospectus Supplement or
the Prospectus Supplement (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of the indemnity
provided by this Section 8. An indemnifying party may participate at its own
expense in the defense of any such action and, to the extent that it may elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from the indemnified party, to assume the defense thereof,
with counsel satisfactory to such indemnified party. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have agreed to
the retention of such counsel, or (ii) the indemnifying party shall not have
assumed the defense of such action, with counsel satisfactory to the indemnified
party, within a reasonable period following the indemnifying party's receiving
notice of such action, or (iii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. In
no event shall the indemnifying party or parties be liable for fees and expenses
of more than one counsel (or, in the event the Company or Wachovia is the
indemnifying party, one counsel for each Underwriter) (in addition to any local
counsel) separate from its or their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
Unless it shall assume the defense of any proceeding, an indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party shall indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel or any other expenses for
which the indemnifying party is obligated under this subsection, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. If an indemnifying party assumes the defense of any proceeding, it
shall be entitled to settle such proceeding with the consent of the indemnified
party or, if such settlement provides for an unconditional release of the
indemnified party in connection with all matters relating to the proceeding that
have been asserted against the indemnified party in such proceeding by the other
parties to such settlement, without the consent of the indemnified party.
(d) The indemnity provided by this Section 8 shall remain operative
and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by the Company, the Underwriters, any of
their respective directors or officers, or any person controlling the Company or
the Underwriters, and (iii) acceptance of and payment for any of the
Underwritten Certificates.
(e) Each Underwriter, severally but not jointly, will indemnify and
hold harmless any other Underwriter and each person, if any, who controls such
Underwriter within the meaning of either the 1933 Act or the 1934 Act
(collectively, the "Non-Indemnifying Underwriter") from and against any and all
loss, liability, claim, damage and expense whatsoever, as incurred, that arise
out of or are based upon (i) any untrue statement of material fact contained in
any Computational Materials or Term Sheets (other than the Computational
Materials and Term Sheets attached hereto as Exhibit A and Exhibit B) prepared
by such indemnifying Underwriter or any member of its selling group, in
connection with the Underwritten Certificates (or in any revision or amendment
thereof or supplement thereto) or (ii) the failure of such indemnifying
Underwriter, or any member of its selling group, to comply with any provision of
Section 4(b) hereof, and agrees to reimburse each such Non-Indemnifying
Underwriter, as incurred, for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, liability,
claim, damage or expense; provided, that the indemnity provided by this Section
8(e) shall not apply to the extent that such indemnifying Underwriter is
entitled under any Mortgage Loan Purchase Agreement to seek indemnity for such
loss, liability, claim, damage or expense from a Mortgage Loan Seller affiliated
with the Underwriter seeking indemnification. The indemnity provided by this
Section 8 will be in addition to any liability that any Underwriter may
otherwise have.
9. Contribution.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity provided by Section 8 hereof is for any
reason held to be unenforceable by the indemnified parties although applicable
in accordance with its terms, or if such indemnification provided for in Section
8 hereof is insufficient in respect of any losses, liabilities, claims or
damages referred to therein, the Company and Wachovia, jointly and severally,
and the Underwriters, severally, shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by the
indemnity provided by Section 8 incurred by the Company and the Underwriters, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and each Underwriter on the
other from the offering of the Underwritten Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of each Underwriter on the other in connection with the
statements or omissions which resulted in such losses, claims, damages, expenses
or liabilities, as well as any other relevant equitable considerations (taking
into account the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission or failure to
comply, and any other equitable considerations appropriate under the
circumstances). The relative benefits received by the Company and Wachovia on
the one hand and the Underwriters on the other shall be deemed to be in the same
respective portions as the net proceeds (before deducting expenses) received by
the Company from the sale of the Underwritten Certificates and the total
underwriting discounts and commissions received by the Underwriters in
connection therewith bear to the aggregate offering price of the Underwritten
Certificates. The relative fault of the Company on the one hand and of each
Underwriter on the other 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 relates to information
supplied by the Company or by the Underwriters, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Notwithstanding the foregoing, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation; and no Underwriter shall be obligated to
contribute more than its share of underwriting discounts and commissions
pertaining to the Underwritten Certificates less any damages otherwise paid by
such Underwriter with respect to such loss, liability, claim, damage or expense.
It is hereby acknowledged that the respective Underwriters' obligations under
this Section 9 shall be several and not joint. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's
officers and directors, shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company.
(b) The parties hereto agree that it would not be just and equitable
if contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take account of the considerations
referred to in subsection (a) above. The amount paid or payable by an
indemnified party as a result of the losses, liabilities, claims or damages
referred to in Section 8 or this Section 9 shall be deemed to include any legal
fees and disbursements or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such claim except where
the indemnified party is required to bear such expenses, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that it is reasonable to believe that the
indemnifying party will be ultimately obligated to pay such expenses. In the
event that any expenses so paid by the indemnifying party are subsequently
determined to not be required to be borne by the indemnifying party hereunder,
the party which received such payment shall promptly refund the amount so paid
to the party which made such payment. The remedies provided for in Section 8 and
this Section 9 are not exclusive and shall not limit any rights or remedies that
may otherwise be available to any indemnified party at law or in equity.
(c) The contribution agreements contained in this Section 9 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the Underwriters,
any of their respective directors or officers, or any person controlling the
Company or the Underwriters, and (iii) acceptance of and payment for any of the
Underwritten Certificates.
10. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Underwritten Certificates agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally (in the respective proportions which the portion of the Underwritten
Certificates set forth opposite their names in Schedule II hereto bears to the
aggregate amount of Underwritten Certificates set forth opposite the names of
all the remaining Underwriters) to purchase the Underwritten Certificates that
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the amount of Underwritten
Certificates that the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of Underwritten
Certificates set forth in Schedule II hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Underwritten Certificates, and if such nondefaulting
Underwriters do not purchase all of the Underwritten Certificates, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company, except as provided in Section 11 or Section 12. In the event of a
default by any Underwriter as set forth in this Section 10, the Closing Date for
the Underwritten Certificates shall be postponed for such period, not exceeding
ten business days, as you shall determine in order that the required changes in
the Registration Statement and the Prospectus Supplement or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, or by or on behalf of the
Company, or by or on behalf of any of the controlling persons and officers and
directors referred to in Sections 8 and 9, and shall survive delivery of the
Underwritten Certificates to the Underwriters.
12. Termination of Agreement; Survival.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company or of Wachovia
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any outbreak of hostilities or escalation thereof or other calamity or
crisis the effect of which is such as to make it, in the reasonable judgment of
any Underwriter, impracticable to market the Underwritten Certificates or to
enforce contracts for the sale of the Underwritten Certificates, or (iii) if
trading in any securities of the Company or of Wachovia has been suspended or
limited by the Commission or the New York Stock Exchange, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or on
the Nasdaq National Market has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
as provided in Section 11 or Section 12 (c).
(c) The provisions of Section 5(e) regarding the payment of costs
and expenses and the provisions of Sections 8 and 9 hereof shall survive the
termination of this Agreement, whether such termination is pursuant to this
Section 12 or otherwise.
13. 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 Wachovia Securities, LLC,
shall be directed to it at 000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Xx. Xxxxxxx X. Xxxxxx with a
copy to Xxxxxxx X. Xxxxxxx, Esq. at 000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxxx
Xxxxxx, Xxxxx Xxxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0630; notice to Nomura
Securities International, Inc. shall be directed to it at 2 World Financial
Center, Building B, New York, New York 10281-1198, Attention: Legal Department;
notice to Citigroup Global Markets Inc. shall be directed to it at 000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Xxxxxx Xxxxxxxx; notice
to Xxxxxx Brothers Inc. shall be directed to it at 000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000; Attention: Xxxxx Xxxx; notice to Wachovia shall be
directed to it at 000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0166, Attention: Xx. Xxxxxxx X. Xxxxxx and notice to the
Company shall be directed to it at Wachovia Commercial Mortgage Securities,
Inc., 000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
28288-0166, Attention: President; with copies in the case of the Company and
Wachovia to Xxxxxxx X. Xxxxxxx, Esq. at 000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxxx
Xxxxxx, Xxxxx Xxxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0630; or such other
address as may hereafter be furnished by the Underwriters, Wachovia or the
Company to the other such parties in writing.
14. Parties. This Agreement shall inure to the benefit of and be
binding upon each of the Underwriters, the Company and Wachovia and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and Wachovia and their respective successors
and the controlling persons and officers and directors referred to in Sections 8
and 9 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
Xxxxxxxx and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Certificates from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
15. Applicable Law; Counterparts. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely in said State. This Agreement may
be executed in any number of counterparts, each of which shall for all purposes
be deemed to be an original and all of which shall together constitute but one
and the same instrument.
16. Automatic Assignment. On or about July 1, 2003, certain
businesses of WSL will be transferred, assigned or otherwise conveyed (the
occurrence of such event, the "Transfer") to Wachovia Capital Markets, LLC or
another newly formed affiliate of WSL ("WCM"). Each of the parties hereto
expressly consents to the assignment by WSL of all of its rights and obligations
hereunder to WCM simultaneous with the Transfer. Each of the parties
acknowledges and agrees that upon the occurrence of the Transfer, such
assignment shall be effective without any further action by any of the parties
hereto and from and after the Transfer: (i) WCM shall be a party hereto and
shall have all rights and obligations of WSL hereunder and (ii) WSL shall cease
to be a party hereto and shall be released from its obligations hereunder.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, Wachovia and the several Underwriters.
Very truly yours,
WACHOVIA SECURITIES, LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxxxxxx
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
WACHOVIA SECURITIES, LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
NOMURA SECURITIES INTERNATIONAL, INC.
By: /s/ X. Xxxxx XxXxxxx
--------------------------------------
Name: X. Xxxxx XxXxxxx
Title: Managing Director
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Managing Director
XXXXXX BROTHERS INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
EXHIBIT A
Computational Materials
N/A
EXHIBIT B
Term Sheets
SCHEDULE I
Underwriting Agreement dated June 24, 2003:
As used in this Schedule I, the term "Registration Statement" refers to
registration statement No. 333-83930 filed by the Company on Form S-3 and
declared effective on March 19, 2002. The term "Basic Prospectus" refers to the
form of prospectus in the Registration Statement or such later form as most
recently filed by the Company pursuant to Rule 424(b) under the Securities Act
of 1933, as amended. The term "Prospectus Supplement" refers to the supplement
dated June 24, 2003, to the Basic Prospectus, relating to the mortgage
pass-through certificates being sold pursuant to the Underwriting Agreement (the
"Underwritten Certificates").
Mortgage Pool:
One hundred fifty-two (152) commercial and multifamily mortgage loans, having an
aggregate principal balance, after giving effect to payments of principal due on
or before July 1, 2003, of $1,200,914,923 as described in the Prospectus
Supplement, and otherwise complying in all material respects with the
description thereof set forth in the Prospectus Supplement.
Title, Purchase Price and Description of Underwritten Certificates:
Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates Series 2003-C5, Class A-1, Class A-2, Class B and Class C.
Closing Date
Aggregate
Certificate
Principal Initial Purchase Price
Designation Balance Pass-Through Rate Rating(1) Percentage(2)
--------------------------------------------------------------------------------
Class A-1 $226,000,000 2.986% Aaa/AAA 99.49911%
Class A-2 $439,721,000 3.989% Aaa/AAA 100.492608%
Class B $40,531,000 4.107% Aa2/AA 100.493588%
Class C $15,011,000 4.139% Aa3/AA- 100.498048%
--------------------
(1) By each of Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings
Service, a division of the XxXxxx-Xxxx Companies, Inc.
(2) There shall be added to the purchase price for each Class of Underwritten
Certificates accrued interest, if any, at the initial Pass-Through Rate
for such Class from July 1, 2003, up to, but not including, the Closing
Date.
Credit Support and Other Terms and Conditions of the Underwritten
Certificates: As described in the Prospectus Supplement.
Closing Date and Location: 10:00 a.m. (New York City time) on July 8,
2003, at the offices of Cadwalader, Xxxxxxxxxx & Xxxx, Charlotte, North
Carolina; except that delivery of the Underwritten Certificates shall be
made through the facilities of The Depository Trust Company.
Initial Public Offering Price: The Underwritten Certificates will be
offered to the public in negotiated transactions or otherwise at varying
prices to be determined at the time of sale.
SCHEDULE II
Underwriting Agreement dated June 24, 2003
Approximate Aggregate Principal Amount of each Class of Certificates to be
purchased by:
Wachovia Securities, LLC
Class A-1 $154,462,039
Class A-2 $275,531,868
Class B $27,701,331
Class C $10,259,423
Nomura Securities International, Inc.
Class A-1 $33,396,088
Class A-2 $64,977,705
Class B $5,989,278
Class C $2,218,180
Citigroup Global Markets Inc.
Class A-1 $38,141,873
Class A-2 $74,211,428
Class B $6,840,391
Class C $2,533,397
Xxxxxx Brothers Inc.
Class A-1 $0
Class A-2 $25,000,000
Class B $0
Class C $0
