EXHIBIT 1.2
UNDERWRITING AGREEMENT
(Asset-Backed Notes)
New York, New York
_____ __, 200_
[Lead Underwriter’s name and address]
Ladies and Gentlemen:
SECTION 1. Introduction. Wachovia Asset Funding Trust, LLC, a Delaware limited liability company (the
“Company”), proposes to sell to the Underwriters named on Schedule I hereto (the “Underwriters”) through
__________, as representative of the Underwriters (the “Representative”), $_______ principal amount of its Class
__ Asset-Backed Notes identified in Schedule I hereto (the “Offered Notes”) having the aggregate initial Note
Balance set forth in Schedule I (subject to an upward or downward variance, not to exceed __%, of the precise
initial Note Balance within such range to be determined by the Company in its sole discretion). As of the close
of business on the date specified in Schedule I as the cut-off date (the “Cut-Off Date”), the Mortgage Loans will
have the aggregate principal balance set forth in Schedule I. This Underwriting Agreement shall hereinafter be
referred to as the “Agreement.” The Offered Notes are to be issued pursuant to an Indenture, dated as of _____
__, 200_ (the “Indenture”), among Wachovia Asset Funding Trust, LLC [_____] Trust (the “Issuer” or the “Trust”),
__________, as indenture trustee (the “Indenture Trustee”) and __________, as paying agent (the “Paying Agent”)
and secured by the assets of the Issuer consisting primarily of a pool of fixed-rate and adjustable-rate
one-to-four-family residential mortgage loans, as described in Schedule I (the “Mortgage Loans”) to be acquired
by the Company pursuant to a mortgage loan purchase agreement (the “Mortgage Loan Purchase Agreement”), dated
_____ __, 200_, between the Company and __________ (the “Seller”). The Mortgage Loans will be transferred by the
Depositor to the Issuer pursuant to the Trust Agreement, dated as of _____ __, 200_ (the “Trust Agreement”)
between the Depositor and Wilmington Trust Company as Owner Trustee (the “Owner Trustee”). [The Offered Notes
will be subject to a yield maintenance agreement, dated as of _____ __, 200_, between the Owner Trustee and the
Yield Maintenance Provider (the “Yield Maintenance Agreement”).] The Offered Notes will be issued in the
denominations specified in Schedule I. The Indenture, this Agreement, the Trust Agreement[, the Yield
Maintenance Agreement] and the Mortgage Loan Purchase Agreement are collectively referred to herein as the “Basic
Documents.”
Capitalized terms used herein that are not otherwise defined herein have the meanings assigned thereto
in the Indenture.
SECTION 2. Representations and Warranties of the Company. (A) The Company represents and warrants to the
Underwriters as follows:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933, as amended (the
“Act”), and has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on
such Form (the file number of which is set forth in Schedule I hereto), which has become effective, for the
registration under the Act of the Offered Notes. Such registration statement, as amended to the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1) under the Act and complies in all other material
respects with said Rule. The Company proposes to file with the Commission pursuant to Rule 424 under the Act a
supplement to the form of prospectus included in such registration statement relating to the Offered Notes and
the plan of distribution thereof and has previously advised the Underwriters of all further information
(financial and other) with respect to the Company to be set forth therein. Such registration statement,
including the exhibits thereto, as amended to the date of this Agreement, is hereinafter called the “Registration
Statement”; such prospectus in the form in which it appears in the Registration Statement is hereinafter called
the “Base Prospectus”; and such supplement to the Base Prospectus, in the form in which it shall be filed with
the Commission pursuant to Rule 424, is hereinafter called the “Prospectus Supplement” and, collectively with the
Base Prospectus, the “Prospectus.” Any reference herein to the Registration Statement, the Base Prospectus or
the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus, as the
case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the
Registration Statement, the Base Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus
or the Prospectus, as the case may be, and deemed to be incorporated therein by reference. Any preliminary form
of the Prospectus Supplement to be filed pursuant to Rule 424(b) is referred to as a “Preliminary Prospectus
Supplement” and, together with the Base Prospectus, and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto, a “Preliminary Prospectus.”
(b) As of the date hereof, when the Prospectus is first filed pursuant to Rule 424 under the Act, when,
prior to the Closing Date (as hereinafter defined), any amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by reference in the Registration Statement), when any
supplement to the Prospectus is filed with the Commission and at the Closing Date, (i) the Registration
Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time,
will comply in all material respects with the Act and the respective rules thereunder, (ii) the Registration
Statement, as amended as of any such time, will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to make the statements therein not
misleading, (iii) the Prospectus, as amended or supplemented as of any such time, will not contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which they were made, not misleading,
(iv) the Approved Offering Materials (as hereinafter defined) as of the date of the Approved Offering Materials
did not and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements therein not misleading,
(v) each Issuer Free Writing Prospectus (as hereinafter defined), as amended or supplemented as of any such time
prior to the date of the related Prospectus Supplement, will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading; and (vi) the Base Prospectus
as of the date of the related Prospectus Supplement, will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (A) the information contained in or omitted from the
Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf of the Underwriters specifically
for use in connection with the preparation of the Registration Statement or the Prospectus, (B) the Current
Report (as defined in Section 5(b) below), or any amendment thereof or supplement thereto, incorporated by
reference in the Registration Statement or the Prospectus (or any amendment thereof or supplement thereto) or (C)
any information contained in any Underwriter Prepared Issuer FWP (as hereinafter defined) or Underwriter Free
Writing Prospectus (as hereinafter defined), except, in each case, to the extent of (x) any information set forth
therein that constitutes Pool Information (as hereinafter defined) or (y) any information accurately extracted
from any Issuer Free Writing Prospectus and included in any Underwriter Prepared Issuer FWP or Underwriter Free
Writing Prospectus.
(i) “ABS Informational and Computational Materials” shall have the meaning given
such term in Item 1101 of Regulation AB.
(ii) “Approved Offering Materials” means the Preliminary Prospectus.
(iii) “Contract of Sale” has the same meaning as in Rule 159 of the 1933 Act
Regulations and all Commission guidance relating to Rule 159.
(iv) “Free Writing Prospectus” shall have the meaning given such term in Rules 405
and 433 of the 1933 Act Regulations.
(v) “Issuer Free Writing Prospectus” shall mean any Free Writing Prospectus
prepared by or on behalf of the Company and identified by the Company as an Issuer Free Writing Prospectus and
relating to the Notes or the offering thereof.
(vi) “Issuer Information” shall mean any information of the type specified in
clauses (1) - (5) of footnote 271 of Commission Release No. 33-8591 (Securities Offering Reform), other than
Underwriter Derived Information. Consistent with such definition, “Issuer Information” shall not be deemed to
include any information in a Free Writing Prospectus solely by reason of the Company’s review of the materials
pursuant to Section 4.4(e) below and, consistent with Securities Offering Reform Questions and Answers, November
30, 2005 promulgated by the staff of the Commission, “Issuer Information” shall not be deemed to include any
information in a Free Writing Prospectus solely by reason that the Underwriter has agreed not to use such Free
Writing Prospectus without consent of the Company.
(vii) “Permitted Additional Materials” shall mean information that is not ABS
Informational and Computational Materials and (x) that are referred to in Section 4.4(c) so long as any Issuer
Information provided by the Underwriter pursuant to Section 4.4(c) is limited to information included within the
definition of ABS Informational and Computational Materials, (y) that constitute Note price, yield, weighted
average life, subscription or allocation information, or a trade confirmation, or (z) otherwise with respect to
which the Company has provided written consent to the Underwriter to include in a Free Writing Prospectus.
(viii) “Pool Information” means with respect to any Free Writing Prospectus, the
information with respect to the characteristics of the Mortgage Loans and administrative and servicing fees, as
provided by or on behalf of the Company to the Underwriter at the time most recent to the date of such Free
Writing Prospectus.
(ix) “Underwriter Derived Information” shall refer to information of the type
described in clause (5) of footnote 271 of Commission Release No. 33-8591 (Securities Offering Reform) when
prepared by the Underwriter, including traditional computational and analytical materials prepared by the
Underwriter.
(x) “Underwriter Free Writing Prospectus” shall mean all Free Writing Prospectuses
prepared by or on behalf of the Underwriter other than any Underwriter Prepared Issuer FWP, including any
Permitted Additional Materials.
(xi) “Underwriter Prepared Issuer FWP” shall mean any Free Writing Prospectus
prepared by or on behalf of the Underwriter that contains any Issuer Information, including any Free Writing
Prospectus or portion thereof prepared by or on behalf of the Underwriter that contains only a description of the
final terms of the Notes or of the offering of the Notes.
(xii) “Written Communication” shall have the meaning given such term in Rule 405 of
the 1933 Act Regulations.
(c) The Company has been duly formed and is validly existing as a limited liability company under the laws
of the State of Delaware and has all requisite power and authority to own its properties and conduct its
business, as now conducted by it, and to enter into and perform its obligations under this Agreement and the
other Basic Documents to which it is a party.
(d) The Company is not aware of (i) any request by the Commission for any further amendment of the
Registration Statement or the Base Prospectus or for any additional information or (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement.
(e) This Agreement has been duly authorized, executed and delivered by the Company, and each of the other
Basic Documents to which the Company is a party, when delivered by the Company, will have been duly authorized,
executed and delivered by the Company, and will constitute a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject, as to the enforcement of remedies, to
applicable bankruptcy, insolvency, reorganization, moratorium, receivership and similar laws affecting creditors’
rights generally and to general principles of equity (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law), and except as rights to indemnity and contribution hereunder may
be limited by federal or state securities laws or principles of public policy.
(B) Each Underwriter represents and warrants to, and agrees with, the Company that:
(a) As of the date hereof and as of the Closing Date, the Underwriter has complied with
all of its obligations hereunder and all information contained in any Underwriter Free Writing Prospectus and in
any Underwriter Prepared Issuer FWP as used in connection with any Contract of Sale are accurate in all material
respects (taking into account the assumptions explicitly set forth in such Underwriter Prepared Issuer FWP or
Underwriter Free Writing Prospectus), except to the extent of (x) any errors therein that are caused by errors or
omissions in the Pool Information or (y) information accurately extracted from any Issuer Free Writing Prospectus
and included in any Underwriter Prepared Issuer FWP or Underwriter Free Writing Prospectus.
(b) Prior to the Closing Date, the Underwriter shall notify the Company of the earlier of
(x) the date on which the Prospectus Supplement is first used and (y) the time of the first Contract of Sale to
which such Prospectus Supplement relates.
SECTION 3. Purchase, Sale and Delivery of Offered Notes. On the basis of the representations, warranties
and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Underwriters, and the Underwriters agree to purchase from the Company, the principal amount
of Offered Notes set forth opposite each such Underwriter’s name on Schedule I hereto. The purchase price for
the Offered Notes is set forth as a percentage of the aggregate principal balance of the Offered Notes in
Schedule I hereto.
The Company will deliver the Offered Notes to the Representative, against payment of the purchase price
therefor in same day funds wired to such bank as may be designated by the Company, or by such other manner of
payment as may be agreed upon by the Company and the Underwriters, at the offices of [Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP], New York, NY at 10:00 A.M., Eastern time, on _____ __, 200_ or at such other place or time not
later than seven full business days thereafter as the Representative and the Company determine, such time being
referred to herein as the “Closing Date.”
The Offered Notes so to be delivered will be in such denominations and registered in such names as the
Representative requests two full business days prior to the Closing Date and will be made available at the office
of ________, [city], [state] or, upon the Representative’s request, through the facilities of The Depository
Trust Company.
SECTION 4. Offering by the Underwriters.
(a) It is understood that the Underwriters propose to offer the Offered Notes subject to this Agreement for
sale to the public (which may include selected dealers) on the terms as set forth in the Prospectus and the
Underwriters agree that all such offers and sales by them shall be made in compliance with all applicable laws
and regulations.
(b) If any Underwriter shall fail to take up and pay for the amount of the Offered Notes agreed by such
Underwriter to be purchased under this Underwriting Agreement upon tender of such Notes in accordance with the
terms hereof, and the amount of the Offered Notes not purchased does not aggregate more than 10% of the total
amount of the Offered Notes set forth in Schedule I hereto, the remaining Underwriters shall be obligated to take
up and pay for the Term Notes that the withdrawing or defaulting Underwriters agreed but failed to purchase.
This Underwriting Agreement shall terminate if (i) any Underwriter shall fail to take up and
pay for the amount of the Offered Notes agreed by such Underwriter to be purchased under this Underwriting
Agreement (such Underwriter being a "Defaulting Underwriter") upon tender of such Notes in accordance with the
terms hereof, (ii) the amount of the Offered Notes not purchased aggregates more than 10% of the total amount of
the Offered Notes set forth in Schedule I hereto, and (iii) arrangements satisfactory to the remaining
Underwriters and the Company for the purchase of such Notes by other persons are not made within 36 hours
thereafter. In the event of any such termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 8 hereof) nor shall any Underwriter (other than an
Underwriter who shall have failed, otherwise than for some reason permitted under this Underwriting Agreement, to
purchase the amount of the Offered Notes which such Underwriter agreed to purchase hereunder) be under any
liability to the Company (except to the extent provided in Section 8 hereof). Nothing herein shall be deemed to
relieve any Defaulting Underwriter from any liability it may have to the Company or any other Underwriter by
reason of its failure to take up and pay the Offered Notes as agreed to by such Defaulting Underwriter.
(c) It is understood that prior to the date of the first Contract of Sale made based on
the Approved Offering Materials, the Underwriters have not pledged, sold, disposed of or otherwise transferred
any Note, Mortgage Loans or any interest in any Note.
(d) It is understood that the Underwriters will solicit offers to purchase the Notes as
follows:
(i) Prior to the time the Underwriters have received the Approved Offering
Materials the Underwriters may, in compliance with the provisions of this Agreement, solicit offers to purchase
Notes; provided, that the Underwriters shall not accept any such offer to purchase a Note or any interest in any
Note or Mortgage Loan or otherwise enter into any Contract of Sale for any Note, any interest in any Note or any
Mortgage Loan prior to the Underwriters' conveyance of Approved Offering Materials to the investor.
(ii) Any Written Communication relating to the Notes made by an Underwriter in
compliance with the terms of this Agreement prior to the time such Underwriter has entered into a Contract of
Sale for Notes with the recipient shall prominently set forth the following statements (or a substantially
similar statements approved by the Company):
The information in this free writing prospectus, if conveyed prior to the time of the
your contractual commitment to purchase any of the Notes, supersedes any information
contained in any prior similar materials relating to the Notes. The information in
this free writing prospectus is preliminary, and is subject to completion or change.
This free writing prospectus is being delivered to you solely to provide you with
information about the offering of the Notes referred to in this free writing
prospectus and to solicit an offer to purchase the Notes, when, as and if issued. Any
such offer to purchase made by you will not be accepted and will not constitute a
contractual commitment by you to purchase any of the Notes, until we have accepted
your offer to purchase Notes.
The Notes referred to in these materials are being sold when, as and if issued. The
issuer is not obligated to issue such Notes or any similar security and the
underwriter’s obligation to deliver such Notes is subject to the terms and conditions
of the underwriting agreement with the issuer and the availability of such Notes when,
as and if issued by the issuer. You are advised that the terms of the Notes, and the
characteristics of the mortgage loan pool backing them, may change (due, among other
things, to the possibility that mortgage loans that comprise the pool may become
delinquent or defaulted or may be removed or replaced and that similar or different
mortgage loans may be added to the pool, and that one or more classes of Notes may be
split, combined or eliminated), at any time prior to issuance or availability of a
final prospectus. You are advised that Notes may not be issued that have the
characteristics described in these materials. The underwriter’s obligation to sell
such Notes to you is conditioned on the mortgage loans and Notes having the
characteristics described in these materials. If for any reason the issuer does not
deliver such Notes, the underwriter will notify you, and neither the issuer nor any
underwriter will have any obligation to you to deliver all or any portion of the Notes
which you have committed to purchase, and none of the issuer nor any underwriter will
be liable for any costs or damages whatsoever arising from or related to such
non-delivery.
(iii) It is understood that the Underwriters will not enter into a Contract of Sale
with any investor until the Approved Offering Materials have been conveyed to the investor with respect to the
Notes which are the subject of such Contract of Sale.
(e) It is understood that you may prepare and provide to prospective investors certain
Free Writing Prospectuses, subject to the following conditions:
(i) Unless preceded or accompanied by a prospectus satisfying the requirements of
Section 10(a) of the Act, the Underwriter shall not convey or deliver any Written Communication to any person in
connection with the initial offering of the Notes, unless such Written Communication (i) is made in reliance on
Rule 134 under the Act, (ii) constitutes a prospectus satisfying the requirements of Rule 430B under the Act or
(iii) constitutes a Free Writing Prospectus (as defined in Section 1(c) above) consisting solely of (x)
information of a type included within the definition of ABS Informational and Computational Materials (as defined
below), (y) Permitted Additional Materials or (z) information accurately extracted from the Preliminary
Prospectus any Issuer Free Writing Prospectus and included in any Underwriter Prepared Issuer FWP or any
Underwriter Free Writing Prospectus.
(ii) The Underwriter shall comply with all applicable laws and regulations in
connection with the use of Free Writing Prospectuses, including but not limited to Rules 164 and 433 of the 1933
Act Regulations and all Commission guidance relating to Free Writing Prospectuses, including but not limited to
Commission Release No. 33-8591.
(iii) It is understood and agreed that all information provided by the Underwriter
to or through Bloomberg or Intex or similar entities for use by prospective investors, or imbedded in any CDI
file provided to prospective investors, or in any email or other electronic message provided to prospective
investors, to the extent constituting a Free Writing Prospectus, shall be deemed for purposes of this Agreement
to be an Underwriter Free Writing Prospectus and shall not be subject to the required consent of the Company set
forth in the third sentence in Section 4(e)(v). In connection therewith, the Underwriter agrees that it shall
not provide any information constituting Issuer Information through the foregoing media unless (i) such
information or substantially similar information is contained either in an Issuer Free Writing Prospectus or in
an Underwriter Prepared Issuer FWP in compliance with Section 4(e)(v) or (ii) to the extent such information
consists of the terms of the Notes, the final version of the terms of the Notes or substantially similar
information is contained either in an Issuer Free Writing Prospectus or in an Underwriter Prepared Issuer FWP in
compliance with Section 4(e)(v).
(iv) All Free Writing Prospectuses provided to prospective investors, whether or
not filed with the Commission, shall bear a legend including the following statement (or a substantially similar
statement approved by the Company):
“THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SECURITIES AND EXCHANGE COMMISSION (THE SEC) FOR
THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST,
YOU SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND
OTHER DOCUMENTS THE DEPOSITOR HAS FILED WITH THE SEC FOR MORE
COMPLETE INFORMATION ABOUT THE DEPOSITOR AND THE OFFERING. YOU MAY
GET THESE DOCUMENTS AT NO CHARGE BY VISITING XXXXX ON THE SEC WEB
SITE AT XXX.XXX.XXX. ALTERNATIVELY, THE DEPOSITOR, ANY UNDERWRITER OR
ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE
PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY CALLING TOLL-FREE
1-XXX-XXX-XXXX.”
Each of the Underwriter and the Company shall have the right to request additional specific legends or
notations to appear on any Free Writing Prospectus and shall have the right to require changes regarding the use
of terminology and the right to determine the types of information appearing therein with the approval of the
other (which shall not be unreasonably withheld).
(v) The Underwriter shall deliver to the Company and its counsel (in such format
as reasonably required by the Company), prior to the proposed date of first use thereof, (unless such timing
requirement is waived by the Company), any Underwriter Prepared Issuer FWP (as defined above). To facilitate
filing to the extent required by Section 5(g) or 5(h), as applicable, all Underwriter Derived Information shall
be set forth in a document separate from any Underwriter Prepared Issuer FWP including Issuer Information.
Consent to use of any Underwriter Prepared Issuer FWP must be given by the Company in written or electronic
format before the Underwriter provides the Underwriter Prepared Issuer FWP to investors pursuant to the terms of
this Agreement. Notwithstanding the foregoing, the Underwriter shall not be required to deliver or obtain
consent to use an Underwriter Prepared Issuer FWP to the extent that it does not contain substantive changes from
or additions to any Underwriter Prepared Issuer FWP previously approved by the Company. In the event that the
Underwriter uses any Underwriter Prepared Issuer FWP without complying with the foregoing requirements, that
Underwriter Prepared Issuer FWP shall be deemed to be an Underwriter Free Writing Prospectus for purposes of
Section 8(a) and 8(b).
(vi) The Underwriter shall provide the Company with a letter from [_________],
certified public accountants, prior to the Closing Date, satisfactory in form and substance to the Company and
its counsel and the Underwriter, to the effect that such accountants have performed certain specified procedures,
all of which have been agreed to by the Company and the Underwriter, as a result of which they determined that
certain information of an accounting, financial or statistical nature that is included in any Underwriter
Prepared Issuer FWP, other than any Pool Information therein and any information accurately extracted from any
Issuer Free Writing Prospectus and included in such Underwriter Prepared Issuer FWP, is accurate except as to
such matters that are not deemed by the Company and the Underwriter to be material. The foregoing letter shall
be at the expense of the Underwriter.
(vii) None of the information in any Free Writing Prospectus may conflict with the
information then contained in the Registration Statement or any prospectus or prospectus supplement that is a
part thereof.
(viii) The Company shall not be obligated to file any Issuer Free Writing
Prospectuses that have been determined to contain any material error or omission unless such Issuer Free Writing
Prospectus has been provided to a prospective investor, in which case, the Underwriter shall cooperate with the
Company to prepare a corrective Issuer Free Writing Prospectus that the Underwriter will provide to any such
prospective investor and the Company shall file to the extent required herein. In the event that the Underwriter
becomes aware that, as of the date on which an investor entered into a Contract of Sale, any Free Writing
Prospectus prepared by or on behalf of the Underwriter and delivered to such investor contained any untrue
statement of a material fact or omitted to state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they were made, not misleading (such Free Writing
Prospectus, a “Defective Free Writing Prospectus”), the Underwriter shall notify the Company thereof as soon as
practical but in any event within one business day after discovery.
(ix) If the Underwriter does not provide any Free Writing Prospectuses to the
Company pursuant to subsection (v) above, the Underwriter shall be deemed to have represented, as of the Closing
Date, that it did not provide any prospective investors with any information in written or electronic form in
connection with the offering of the Notes that would constitute an Underwriter Prepared Issuer FWP.
(x) In the event of any delay in the delivery by the Underwriter to the Company of
any Underwriter Prepared Issuer FWP required to be delivered in accordance with subsection (v) above, or in the
delivery of the accountant’s comfort letter in respect thereof pursuant to subsection (vi) above, the Company
shall have the right to delay the release of the Prospectus to investors or to the Underwriter, to delay the
Closing Date and to take other appropriate actions in each case as necessary in order to allow the Company to
comply with its agreement set forth in Section 5(a) to file such Underwriter Prepared Issuer FWP by the time
specified therein.
(xi) The Underwriter represents that it has in place, and covenants that it shall
maintain, internal controls and procedures which it reasonably believes to be sufficient to ensure full
compliance with all applicable legal requirements of the 1933 Act Regulations with respect to the generation and
use of Free Writing Prospectuses in connection with the offering of the Notes. In addition, each Underwriter
shall, for a period of at least three years after the date hereof, maintain written and/or electronic records of
the following:
(1) any Free Writing Prospectus used by the Underwriter to
solicit offers to purchase Notes to the extent not filed with the Commission;
(2) regarding each Free Writing Prospectus delivered by the
Underwriter to an investor, the date of such delivery and identity of such investor; and
(3) regarding each Contract of Sale entered into by such
Underwriter, the date, identity of the investor and the terms of such Contract of Sale, as set
forth in the related confirmation of trade.
(xii) The Underwriter covenants with the Company that after the final Prospectus is
available the Underwriter shall not distribute any written information concerning the Notes to a prospective
investor unless such information is preceded or accompanied by the final Prospectus. It is understood and agreed
that the use of written information in accordance with the preceding sentence is not a Free Writing Prospectus
and is not otherwise restricted or governed in any way by this Agreement.
(xiii) The Underwriter shall not use any Free Writing Prospectus in connection with
the solicitation of offers to purchase Notes from any prospective investor in a class of Notes with denominations
of less than $25,000 or otherwise designated as a “retail” class of Notes, and the Underwriter shall not
authorize any such use of any Free Writing Prospectus by any dealer that purchases any such Notes from the
Underwriter.
(f) The Underwriter agrees that (i) if the Prospectus is not delivered with the
confirmation in reliance on Rule 172, it will include in every confirmation sent out the notice required by Rule
173 informing the investor that the sale was made pursuant to the Registration Statement and that the investor
may request a copy of the Prospectus from the Underwriter; (ii) if a paper copy of the Prospectus is requested by
a person who receives a confirmation, Underwriter shall deliver a printed or paper copy of such Prospectus; and
(iii) if an electronic copy of the Prospectus is delivered by the Underwriter for any purpose, such copy shall be
the same electronic file containing the Prospectus in the identical form transmitted electronically to the
Underwriter by or on behalf of the Company specifically for use by the Underwriter pursuant to this Section 4(e);
for example, if the Prospectus is delivered to the Underwriter by or on behalf of the Company in a single
electronic file in pdf format, then the Underwriter will deliver the electronic copy of the Prospectus in the
same single electronic file in pdf format. The Underwriter further agrees that (i) if it delivers to an investor
the Prospectus in pdf format, upon the Underwriter’s receipt of a request from the investor within the period for
which delivery of the Prospectus is required, the Underwriter will promptly deliver or cause to be delivered to
the investor, without charge, a paper copy of the Prospectus and (ii) it will provide to the Company any
Underwriter Prepared Issuer FWP, or portions thereof, which the Company is required to file with the Commission
in electronic format and will use reasonable efforts to provide to the Company such Underwriter Prepared Issuer
FWP, or portions thereof, in either Microsoft Word® or Microsoft Excel® format and not in a pdf, except to the
extent that the Company, in its sole discretion, waives such requirements.
SECTION 5. Covenants of the Company. The Company hereby covenants and agrees with the Underwriters that:
(a) Prior to the termination of the offering of the Offered Notes, the Company will not file any amendment
of the Registration Statement or supplement (including the Prospectus) to the Base Prospectus unless the Company
has furnished the Underwriters a copy for their review prior to filing and will not file any such proposed
amendment or supplement to which any Underwriter reasonably objects. Subject to the foregoing sentence, the
Company will cause the Preliminary Prospectus and the Prospectus to be filed with the Commission pursuant to
Rule 424. The Company will advise the Underwriters promptly (i) when the Prospectus shall have been filed with
the Commission pursuant to Rule 424, (ii) when any amendment to the Registration Statement relating to the
Offered Notes shall have become effective, (iii) of any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Offered Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) The Company will use its best efforts to cause any Computational Materials, Collateral Term Sheets and
ABS Term Sheets (each as defined in Section 11 below) with respect to the Offered Notes which are delivered by
the Underwriters to the Company pursuant to Section 11 to be filed with the Commission on a Current Report on
Form 8-K (the “Current Report”) pursuant to Rule 13a-11 under the Exchange Act not later than the business day
immediately following the day on which such Computational Materials, Collateral Term Sheets or ABS Term Sheets
are delivered to counsel for the Company by the Underwriters as provided in Section 11, and will promptly advise
the Underwriters when such Current Report has been so filed. Such Current Report shall be incorporated by
reference in the Prospectus and the Registration Statement. Notwithstanding the two preceding sentences, the
Company shall have no obligation to file materials provided by the Underwriters pursuant to Section 11 which, in
the reasonable determination of the Company after making reasonable efforts to consult with the Underwriters, are
not required to be filed pursuant to the No-Action Letters (as defined in Section 11 below), or which contain
erroneous information or contain any untrue statement of a material fact or which, when read in conjunction with
the Prospectus, omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; it being understood, however, that the Company shall have no obligation to review or pass
upon the accuracy or adequacy of, or to correct, any Computational Materials, Collateral Term Sheets or ABS Term
Sheets provided by the Underwriters to the Company pursuant to Section 11 hereof.
(c) If, at any time when a prospectus relating to the Offered Notes is required to be delivered under the
Act, Any event occurs as a result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will prepare and file with the Commission, subject to the first sentence of paragraph (a) of
this Section 5, an amendment or supplement which will correct such statement or omission or an amendment which
will effect such compliance and will use its best efforts to cause any required post-effective amendment to the
Registration Statement containing such amendment to be made effective as soon as possible; provided, however,
that the Company will not be required to file any such amendment or supplement with respect to any Computational
Materials incorporated by reference in the Prospectus other than any amendments or supplements of such
Computational Materials that are furnished to the Company pursuant to Section 11(d) hereof which the Company
determines to file in accordance therewith.
(d) The Company will furnish to the Underwriters and counsel for the Underwriters, without charge, executed
copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a prospectus by the Underwriters or dealer
may be required by the Act, as many copies of the Prospectus and any amendments thereof and supplements thereto
(other than exhibits to the related Current Report) as the Underwriters may reasonably request. The Company will
pay the expenses of printing all documents relating to the initial offering[, provided that any additional
expenses incurred in connection with the requirement of delivery of a market-making prospectus will be borne by
the Underwriters].
(e) The Company will furnish such information as may be required and otherwise cooperate in qualifying the
Offered Notes for sale under the laws of such jurisdictions as the Underwriters may reasonably designate and to
maintain such qualifications in effect so long as required for the distribution of the Offered Notes; provided,
however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(f) The Company shall file any Issuer Free Writing Prospectus, and any Underwriter
Prepared Issuer FWP provided to it by the Underwriter under Section 4(d), not later than the date of first use
thereof, except that:
(i) any Issuer Free Writing Prospectus or Underwriter Prepared Issuer FWP or
portion thereof otherwise required to be filed that contains only (1) a description of the final terms of the
Notes may be filed by the Company within two days of the later of the date such final terms have been established
for all classes of Notes and the date of first use, and (2) a description of the terms of the Notes that does not
reflect the final terms after they have been established for all classes of all Notes is not required to be
filed; and
(ii) if the Issuer Free Writing Prospectus or Underwriter Prepared Issuer FWP
includes only information of a type included in the definition of ABS Informational and Computational Materials,
the Company shall file the same within the later of two business days after the Underwriter first provides this
information to investors and the date upon which the Company is required to file the Prospectus Supplement with
the Commission pursuant to Rule 424(b)(3) of the Act;
provided further, that prior to the filing of any Underwriter Prepared Issuer FWP by the Company, the
Underwriter must comply with its obligations pursuant to Section 4(d) and that the Company shall not be required
to file any Free Writing Prospectus to the extent such Free Writing Prospectus includes information in a Free
Writing Prospectus or Prospectus previously filed with the Commission or that does not contain substantive
changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(g) The Underwriter shall file any Underwriter Free Writing Prospectus that has been
distributed by the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination
within the later of two business days after the Underwriter first provides this information to investors and the
date upon which the Company is required to file the Prospectus Supplement with the Commission pursuant to Rule
424(b)(3) of the Act or otherwise as required under Rule 433 of the Act; provided, however, that the Underwriter
shall not be required to file any Underwriter Free Writing Prospectus to the extent such Underwriter Free Writing
Prospectus includes information in a Free Writing Prospectus or Prospectus previously filed with the Commission
or that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with
the Commission.
SECTION 6. Conditions to the Obligations of the Underwriters. The obligation of the Underwriters to
purchase the Offered Notes shall be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by
reference therein) and as of the Closing Date, to the accuracy of the statements of the Company made in any
certificates delivered pursuant to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Representative shall have received from _______ (i) a letter, dated the date hereof, confirming that
they are independent public accountants within the meaning of the Act and the rules and regulations of the
Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the
Representative and counsel to the Representative and (ii) if requested by the Representative, a letter dated the
Closing Date, updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory
to the Representative and counsel for the Representative.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior
to the sale of the Offered Notes shall have been duly taken and made. At and prior to the Closing Date, no stop
order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted, or to the knowledge of the Company or the Underwriters, shall have been
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any
change, or any development involving a prospective change, in or affecting particularly the business or
properties of the Company or the Servicer which, in the reasonable judgment of the Underwriters, materially
impairs the investment quality of the Offered Notes; (ii) any downgrading in the rating of the securities of the
Company by any “nationally recognized statistical rating organization” (as such term is defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or
review its rating of any securities of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange; (iv) any banking moratorium declared by federal, North Carolina or New York
authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or international calamity or emergency if, in
the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity
or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the
Offered Notes.
(d) The Representative shall have received a certificate dated the Closing Date of an executive officer of
the Company in which such officer shall state that, to the best of such officer’s knowledge after reasonable
inspection, (i) the representations and warranties of the Company contained in the Basic Documents are true and
correct with the same force and effect as if made on the Closing Date and (ii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date.
(e) The Representative shall have received an opinion of counsel for the Company, which may be an opinion of
in-house counsel to the Company, to the effect that:
(i) The Company is a limited liability company, duly formed, validly existing and in good standing under the
laws of the state of Delaware;
(ii) The Company has the requisite power and authority to execute and deliver the Basic Documents to which it
is a party and to consummate the transactions contemplated therein;
(iii) Each of the Basic Documents to which the Company is a party has been duly authorized, executed and
delivered by the Company;
(iv) To the best of such counsel’s knowledge and information, the execution and delivery of the Basic
Documents and the consummation of the transactions contemplated therein will not conflict with,
or result in a material breach of or a violation of any of the terms of, or constitute a
material default under, the Articles of Incorporation or the Operating Agreement of the
Company, or any material rule, order, statute or regulation of any court, regulatory body,
administrative agency or governmental agency having jurisdiction over the Company, or the terms
of any material indenture or other material agreement or instrument known to the officer to
which the Company is a party or by which it or its properties are bound; and
(v) To the best of such counsel’s knowledge, there are no actions, proceedings, or investigations pending or
threatened before any court, administrative agency or other tribunal (x) asserting the
invalidity of the Basic Documents or the Offered Notes, or (y) seeking to prevent the issuance
of the Offered Notes or the consummation of any of the transactions contemplated by the Basic
Documents or the Offered Notes which might materially and adversely affect the performance by
the Company of its obligations under, or the validity or enforceability of, the Basic Documents
or the Offered Notes, or (z) seeking adversely to affect the federal income tax attributes of
the Offered Notes as debt.
(f) The Representative shall have received a certificate of an executive officer of the Servicer, dated as
of the Closing Date, to the effect that, to the best of such officer’s knowledge, such officer has reviewed the
Prospectus as amended or supplemented to the Closing Date and nothing has come to such officer’s attention that
would lead such officer to believe that the Prospectus as amended or supplemented, insofar as it relates to the
Servicer, contains any untrue statement of a material fact or omits to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) The Representative shall have received an opinion of counsel for [Seller][Servicer][Paying Agent], which
may be an opinion of in-house counsel to [Seller][Servicer][Paying Agent], to the effect that:
(i) [Seller][Servicer][Paying Agent] is duly organized and validly existing as a _______ formed under the
laws of _______ and is authorized to own its assets and to transact its business;
(ii) [Seller][Servicer][Paying Agent] has the power and authority to execute and deliver the Basic Documents
to which it is a party and to consummate the transactions contemplated therein;
(iii) Each of the Basic Documents to which [Seller][Servicer][Paying Agent] is a party has been duly
authorized, executed and delivered by [Seller][Servicer][Paying Agent];
(iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any
court is required for the consummation by [Seller][Servicer][Paying Agent] of the transactions
contemplated by the Basic Documents, except for such filings as may be required pursuant to the
Purchase Agreement or the Trust Agreement or otherwise in order to perfect the ownership and
security interests contemplated by the Indenture, the Trust Agreement and the Purchase
Agreement;
(v) Neither the execution, delivery and performance by [Seller][Servicer][Paying Agent] of its obligations
under the Basic Documents to which it is a party, nor the consummation of any of the
transactions contemplated by the Basic Documents, will conflict with, result in a material
breach of or violation of any of the terms of, or constitute a material default under, the
Articles of Association or By-laws of [Seller][Servicer][Paying Agent], as applicable, each as
amended, or any material rule, order, statute or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over [Seller][Servicer][Paying
Agent], as applicable, or the terms of any material indenture or other material agreement or
instrument known to me to which [Seller][Servicer][Paying Agent] is a party or by which it or
its properties are bound, respectively; and
(vi) To the best of counsel’s knowledge, there are no actions, proceedings, or investigations pending or
threatened before any court, administrative agency or other tribunal (x) asserting the
invalidity of the Basic Documents or the Offered Notes, or (y) seeking to prevent the issuance
of the Offered Notes or the consummation of any of the transactions contemplated by the Basic
Documents or the Offered Notes which might materially and adversely affect the performance by
[Seller][Servicer][Paying Agent], of its obligations under, or the validity or enforceability
of, the Basic Documents or the Offered Notes, or (z) seeking adversely to affect the federal
income tax attributes of the Offered Notes as debt.
(h) The Representative shall have received an opinion of [Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP], special
counsel to the Company, which opinion may rely on, and assume the accuracy of, the opinion described in paragraph
(e) above, dated the Closing Date, to the effect that:
(i) The Offered Notes have been duly authorized by all necessary corporate action of the Company and, when
executed, authenticated and delivered in the manner contemplated by the Indenture and paid for
pursuant to this Agreement, will be validly issued and outstanding, and entitled to the
benefits provided by the Indenture; and the Mortgage Loan Purchase Agreement, constitutes the
legal, valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to certain qualifications;
(ii) Each of the Indenture and the Mortgage Loan Purchase Agreement represents the legal, valid and binding
agreement of [Seller][Servicer][Paying Agent], in each of its capacities, enforceable against
[Seller][Servicer][Paying Agent] in each of its capacities, in accordance with its terms,
subject to certain qualifications;
(iii) The Indenture has been duly qualified, and the Trust Agreement is not required to be qualified, under
the Trust Indenture Act of 1939, as amended, and the Issuer is not required to be registered
under the Investment Company Act of 1940, as amended;
(iv) Assuming compliance with all provisions of the Agreements and the Trust Agreement, under existing law
(a) the Offered Notes will be classified as debt for federal income tax purposes, and (b)
neither the Issuer, nor any portion of the Issuer will be classified as an association or a
taxable mortgage pool (or publicly traded partnership) taxable as a corporation;
(v) The Registration Statement (which for purposes of such opinion shall not be deemed to include any
exhibits filed therewith or any documents incorporated therein by reference) has become
effective under the Act and, to such counsel’s knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued; and
(vi) The statements set forth in the Prospectus under the heading “Description of the Securities,” insofar as
such statements purport to summarize certain provisions of the Offered Notes, the Indenture,
the Servicing Agreement, the Trust Agreement and the Mortgage Loan Purchase Agreement, are
correct in all material respects. The statements set forth in the Base Prospectus under the
headings “Federal Income Tax Consequences” and “ERISA Considerations” and in the Prospectus
Supplement under the headings “Material Federal Income Tax Considerations” and “ERISA
Considerations,” to the extent that they constitute matters of federal law or legal conclusions
with respect thereto, are correct in all material respects.
(i) The Representative shall have received copies of any opinions of counsel for the Company that the
Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and
addressed to the Representative or accompanied by reliance letters addressed to the Representative.
(j) The Representative shall have received from [Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP], special counsel for
the Representative, a letter dated the Closing Date with respect to the Prospectus, substantially to the effect
that nothing has come to counsel’s attention to cause counsel to believe that the Registration Statement
(excluding any exhibits filed therewith), as of the date it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of the date of the Prospectus Supplement and as of
the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood that we have not been requested to
and we do not make any comment in this paragraph with respect to (i) the financial statements, schedules and
other financial and statistical information contained in or incorporated by reference into the Registration
Statement or the Prospectus, (ii) any Computational Materials or ABS Term Sheets[, (iii) any information
contained in the Prospectus Supplement under the heading “The Enhancer” or (iv) any information contained in the
Prospectus Supplement under the heading “The Yield Maintenance Provider”]).
(k) The Representative shall have received an opinion of counsel to the Indenture Trustee, dated the Closing
Date, in form and substance satisfactory to the Representative and its counsel, to the effect that:
(i) The Indenture Trustee is duly organized, validly existing and in good standing as a _____ under the laws
of the ______, and has the requisite entity power and authority to execute and deliver the
Basic Documents and to perform its obligations thereunder;
(ii) The performance of the Indenture Trustee’s obligations under the Basic Documents and the consummation of
the transactions contemplated thereby do not require any consent, approval, authorization or
order of, filing with or notice to any United States federal or ______ State of court, agency
or other governmental body, except such as may be required under the securities laws of any
State of the United States or such as have been obtained, effected or given;
(iii) The performance of the Indenture Trustee’s obligations under the Basic Documents and the consummation of
the transactions contemplated thereby will not result in: (i) any breach or violation of its
certificate of incorporation or bylaws or (ii) any breach or violation of any United States
federal or State of ______ statute or regulation or, to counsel’s knowledge, any order of any
United States federal or State of ______ court, agency or other governmental body;
(iv) To counsel’s knowledge, (i) there is no legal action, suit, proceeding or investigation before any
United States federal or State of ______ court, agency or other governmental body pending or
(ii) threatened against the Indenture Trustee which, either in one instance or in the
aggregate, draws into question the validity of any of the Basic Documents, seeks to prevent the
consummation of any of the transactions contemplated by any of the Basic Documents or would
impair materially the Indenture Trustee’s ability to perform its obligations under any of the
Basic Documents;
(v) Each of the Basic Documents has been duly authorized, executed and delivered by the Indenture Trustee
and, assuming the necessary authorization, execution and delivery thereof by the other parties
thereto, is a valid and legally binding agreement under the laws of the State of ______,
enforceable thereunder against the Indenture Trustee in accordance with its terms; and
(vi) The Offered Notes have been duly authenticated and delivered by the Indenture Trustee in accordance with
the Indenture.
(l) The Underwriters shall have received an opinion of counsel to the Owner Trustee, dated the Closing Date,
in form and substance satisfactory to the Underwriters and their counsel, to the effect that:
(i) The Owner Trustee is duty incorporated and is validly existing and in good standing as a banking
corporation under the laws of the State of _____ and has the power and authority to execute,
deliver and perform the Trust Agreement;
(ii) The Trust Agreement has been duly authorized, executed and delivered by the Owner Trustee;
(iii) Neither the execution, delivery and performance by the Owner Trustee of the Trust Agreement, nor the
consummation of any of the transactions by the Owner Trustee contemplated thereby, requires the
consent or approval of, the withholding of objection on the part of, the giving of notice to,
the filing, registration or qualification with, or the taking of any other action in respect
of, any governmental authority or agency of the State of ______ or the United States of America
governing the trust powers of the Owner Trustee;
(iv) Neither the execution, delivery and performance by the Owner Trustee of the Trust Agreement, nor the
consummation of any of the transactions by the Owner Trustee contemplated thereby, is in
violation of the charter or bylaws of the Owner Trustee or of any law, governmental rule or
regulation of the State of ______ or of the United States of America governing the trust powers
of the Owner Trustee or, to counsel’s knowledge without independent investigation, of any
indenture, mortgage, bank credit agreement, note or bond purchase agreement, long-term lease,
license or other agreement or instrument to which it is a party or by which it is bound or, to
counsel’s knowledge without independent investigation, of any judgment or order applicable to
the Owner Trustee; and
(v) To counsel’s knowledge without independent investigation, there are no proceedings pending or threatened
against the Owner Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate, would have a material
adverse effect on the right, power and authority of the Owner Trustee to enter into or perform
its obligations under the Trust Agreement.
(m) The Underwriters shall have received an opinion of counsel to the Issuer, dated the Closing Date, in
form substance satisfactory to the Underwriters and their counsel to the effect that:
(i) The Trust has been duly formed and is validly existing and in good standing as a statutory trust under
Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq. (the "Act"), and has the power and
authority under the Trust Agreement and the Act to execute, deliver and perform its obligations
under the Basic Documents.
(ii) The Basic Documents have been duly authorized, executed and delivered by the Trust.
(iii) The Notes have been duly executed by the Trust and when authenticated on behalf of the Trust and
delivered upon the written order of the Depositor in accordance with the Trust Agreement, will
be validly issued and entitled to the benefits of the Trust Agreement.
(iv) Neither the execution, delivery and performance by the Trust of the Basic Documents, nor the
consummation by the Trust of any of the transactions contemplated thereby, requires the consent
or approval of, the withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any other action in respect of,
any governmental authority or agency of the State of Delaware, other than the filing of the
Certificate of Trust with the Secretary of State.
(v) Neither the execution, delivery and performance by the Trust of the Basic Documents, nor the
consummation by the Trust of the transactions contemplated thereby, is in violation of the
Trust Agreement or of any law, rule or regulation of the State of Delaware applicable to the
Trust.
(vi) The Trust Agreement is the legal, valid and binding obligation of the Owner Trustee and the Company,
enforceable against the Owner Trustee and the Company, in accordance with its terms.
(n) [The Underwriters shall have received an opinion of counsel to _______ (the “Enhancer”), dated the
Closing Date, in form substance satisfactory to the Underwriters and their counsel to the effect that:
(i) The Enhancer is a _______ duly organized and validly existing under the laws of the State of _______ and
duly qualified to conduct an insurance business in the State of _______. The Enhancer is
validly licensed and authorized to issue the Policy and perform its obligations under the
Policy in accordance with the terms thereof under the laws of the State of _______.
(ii) The Enhancer has full _______ power and authority to execute and deliver the Policy, and the Policy has
been duly authorized, executed and delivered by the Enhancer and constitutes a legal, valid and
binding obligation of the Enhancer enforceable in accordance with its terms except to the
extent that the enforceability (but not the validity) of such obligation may be limited by any
applicable bankruptcy, insolvency, liquidation, rehabilitation or other similar law or
enactment now or hereafter enacted affecting the enforcement of creditors’ rights generally and
by general principles of equity and general principles of public policy.
(iii) The execution and delivery by the Enhancer of the Policy and the Agreements will not, and the
consummation of the transactions contemplated thereby and the satisfaction of the terms thereof
will not, conflict with or result in a breach of any of the terms, conditions or provisions of
the Certificate of Authority, Restated Articles of Incorporation or By-Laws of the Enhancer, or
to counsel’s knowledge, any restriction contained in any contract, agreement or instrument to
which the Enhancer is a party or by which it is bound or constitute a default under any of the
foregoing.
(iv) Proceedings legally required for the issuance of the Policy have been taken by the Enhancer and
licenses, orders, consents or other authorizations or approvals of any governmental boards or
bodies legally required for the enforceability of the Policy have been obtained; any
proceedings not taken and any licenses, authorizations or approvals not obtained are not
material to the enforceability of the Policy.
(v) The Policy is exempt from registration under the Securities Act of 1933, as amended.
(vi) To counsel’s knowledge, there is no action, suit, proceeding or investigation pending against or
affecting the Enhancer in any court, or before or by any governmental body, which asserts the
invalidity or unenforceability of the Policy.
(vii) The statements contained in the Prospectus Supplement under the headings “The Enhancer” and “Description
of the Policy”, insofar as such statements constitute summaries of the matters referred to
therein, accurately reflect and fairly present the information purported to be shown and,
insofar as such statements describe the Enhancer, fairly and accurately describe the Enhancer,
other than any financial or statistical information contained or incorporated by reference
therein, as to which counsel expresses no opinion.
(viii) The Enhancer has full corporate power and authority to execute and deliver the Agreements and the
Agreements have been duly executed and are the valid and binding obligations of the Enhancer
enforceable in accordance with their terms except to the extent that the enforceability (but
not the validity) of such obligation may be limited by any applicable bankruptcy, insolvency,
liquidation, rehabilitation or other similar law or enactment now or hereafter enacted
affecting the enforcement of creditors' rights and by general principles of equity and subject
to general principles of public policy (including, but not limited to, those limiting the right
to enforce the indemnification provisions contained therein).]
(o) [The Underwriters shall have received an opinion of in-house counsel to the Yield Maintenance Provider,
dated the Closing Date, in form and substance satisfactory to the Underwriters and their counsel.]
(p) [The Yield Maintenance Agreement shall have been executed by the Yield Maintenance Provider and the
Indenture Trustee.]
(q) On or before the Closing Date, the Representative shall have received evidence satisfactory to it that
the Offered Notes have been given the ratings set forth on Schedule I hereto.
(r) At the Closing Date, the Offered Notes and the Indenture will conform in all material respects to the
descriptions thereof contained in the Prospectus.
(s) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date
that the Registration Statement or the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact or omits to state a fact which, in the opinion of counsel to the Underwriters, is material
and is required to be stated therein or is necessary to make the statements therein not misleading.
(t) All corporate proceedings and other legal matters relating to the authorization, form and validity of
this Agreement, the Trust Agreement, the Indenture, the Mortgage Loan Purchase Agreement, the Offered Notes, the
Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the
Representative, and the Company shall have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
The Company will provide or cause to be provided to the Underwriters such conformed copies of such
opinions, certificates, letters and documents as the Underwriters may reasonably request.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Representative.
If any condition specified in this Section 6 shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Underwriters by notice to the Company at any time at or prior
to the Closing Date, and such termination shall be without liability of any party to any other party except as
provided in Section 7.
SECTION 7. Reimbursement of the Underwriters’s Expenses. If the sale of the Offered Notes provided for
herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6
hereof is not satisfied or because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a default by the Underwriters, the
Company will reimburse the Underwriters upon demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by it in connection with the proposed purchase
and sale of the Offered Notes.
SECTION 8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Underwriters and the Servicer, and any person who
controls the Underwriters or the Servicer within the meaning of either the Act or the Exchange Act, against any
and all losses, claims, damages or liabilities, to which they may become subject under the Act, the Exchange Act
or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) (i) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement for the
registration of the Offered Notes as originally filed or in any amendment thereof, or in the Base Prospectus or
the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading, or (ii) arise out
of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the
Preliminary Prospectus or any Issuer Free Writing Prospectus, or any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading, or (iii) arise out of or are based upon any untrue statement of a material fact or
alleged untrue statement of a material fact contained in any Underwriter Prepared Issuer FWP or any Underwriter
Free Writing Prospectus or any omission or alleged omission to state therein a material fact necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading, that in either
case was caused by (x) any error or omission in any Pool Information or (y) or any information accurately
extracted from the Preliminary Prospectus or any Issuer Free Writing Prospectus and included in any Underwriter
Prepared Issuer FWP or Underwriter Free Writing Prospectus, and agrees to reimburse the Underwriters and the
Servicer and each such controlling person for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made (A) therein in reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriters (in the case of any indemnity for the benefit of the Underwriters or
any person who controls any Underwriter) or the Servicer (in the case of any indemnity for the benefit of the
Servicer or any person who controls the Servicer) specifically for use in connection with the preparation thereof
or (B) in any Current Report or any amendment or supplement thereof, and (ii) such indemnity with respect to the
Prospectus shall not inure to the benefit of the Underwriters (or any person controlling the Underwriters) from
whom the person asserting any such loss, claim, damage or liability purchased the Offered Notes which are the
subject thereof if such person did not receive a copy of the Prospectus (or the Prospectus as amended or
supplemented) excluding documents incorporated therein by reference at or prior to the confirmation of the sale
of such Offered Notes to such person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Base Prospectus was corrected in the Prospectus (or the
Prospectus as amended or supplemented). This indemnity agreement will inure to the benefit of each of the
members, directors, officers, representatives and agents of each of the Underwriters and will be in addition to
any liability which the Company may otherwise have.
(b) Each of the Underwriters, severally but not jointly, agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration Statement and the Servicer and each person
who controls the Company or the Servicer within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to the Underwriters and the Servicer, but only with reference
to (A) written information relating to the Underwriters furnished to the Company by or on behalf of the
Underwriters specifically for use in the preparation of the documents referred to in the foregoing indemnity or
(B) any Computational Materials, Collateral Term Sheets or ABS Term Sheets furnished to the Company by the
Underwriters pursuant to Section 11 and incorporated by reference in the Registration Statement or the
Prospectus; provided, however, that each Underwriter makes such indemnity only with respect to the extent such
Computational Materials, Collateral Term Sheets or ABS Term Sheets were prepared by it; provided, further, that
no such indemnity shall be available for any losses, claims, damages or liabilities, or actions in respect
thereof resulting from any error in the information concerning the Mortgage Loans (a “Collateral Error”)
furnished by the Servicer to the Underwriters in writing or by electronic transmission that was used in the
preparation of any Computational Materials, Collateral Term Sheets or ABS Term Sheets included in any Current
Report (or amendment or supplement thereof), other than a Collateral Error as to which, prior to the time of
confirmation of the sale of the Offered Notes to the person asserting a claim, the Servicer notified the
Underwriters in writing of the Collateral Error or provided in written or electronic form information superseding
or correcting such Collateral Error (in any such case, a “Corrected Collateral Error”), and the Underwriters
failed to notify such person thereof or to deliver such person corrected Computational Materials, Collateral Term
Sheets and/or ABS Term Sheets, as applicable. This indemnity agreement will be in addition to any liability
which the Underwriters may otherwise have. The Company and the Servicer acknowledge that the statements set
forth in the Prospectus Supplement in the second sentence of the last paragraph on the cover page, in the first
sentence under the subheading “Risk Factors-Limited liquidity of the notes may limit the ability to sell the
notes or realize a desired yield” and in the second, fourth and fifth paragraphs under the heading “Underwriting”
constitute the only information furnished in writing by or on behalf of the Underwriters for inclusion in the
documents referred to in the foregoing indemnity (other than any Computational Materials, Collateral Term Sheets
or ABS Term Sheets furnished to the Company by the Underwriters).
(c) The Servicer agrees to indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, the Underwriters and each person who controls the Company or the
Underwriters within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to the Underwriters and the Servicer, but only with reference to (A) written
information relating to the Servicer or the Mortgage Loans furnished to the Company by or on behalf of the
Servicer specifically for use in the preparation of the documents referred to in the foregoing indemnity and (B)
any Collateral Error with respect to the Mortgage Loans, other than a Corrected Collateral Error. The Company
and the Underwriters acknowledge that the statements set forth under the headings “Description of the Mortgage
Loans-Initial Mortgage Loan Characteristics,” “Description of the Mortgage Loans-Underwriting Standards,” “The
Seller and Servicer-General” and “The Seller and Servicer-Delinquency and Loss Experience of the Servicer’s
Portfolio” in the Prospectus Supplement constitute the only information furnished in writing by or on behalf of
the Servicer for inclusion in the documents referred to in the foregoing indemnity.
(d) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 8. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the defense of such action and approval
by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under
this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with
the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel,
approved by the Underwriters in the case of subparagraphs (a) or (c), representing the indemnified parties under
subparagraphs (a) or (c) who are parties to such action), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or
(iii).
(e) To provide for just and equitable contribution in circumstances in which the indemnification provided
for in paragraphs (a), (b) or (c) of this Section 8 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company, the Underwriters or the Servicer on the grounds of policy or
otherwise, the Company, the Underwriters or the Servicer shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating
or defending same) to which the Company, the Underwriters or the Servicer may be subject, as follows:
(i) in the case of any losses, claims, damages and liabilities (or actions in respect thereof) which do not
arise out of or are not based upon any untrue statement or omission of a material fact in any
Computational Materials, Collateral Term Sheets or ABS Term Sheets, in such proportion as is
appropriate to reflect the relative benefit received by each of the Company, the Underwriters
and the Servicer; and
(ii) in the case of any losses, claims, damages and liabilities (or actions in respect thereof) which arise
out of or are based upon any untrue statement or omission of a material fact in any
Computational Materials, Collateral Term Sheets or ABS Term Sheets, in such proportion as is
appropriate to reflect the relative fault of the Company, the Underwriters and the Servicer in
connection with the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact in such Computational Materials, Collateral Term Sheets or
ABS Term Sheets results from information prepared by the Company, the Underwriters or the
Servicer and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Notwithstanding the provisions of this paragraph (e), no Underwriter shall be required to contribute any amount
in excess of the underwriting discount for such Underwriter. Notwithstanding anything to the contrary in this
paragraph (e), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls the Underwriters within the meaning of either the Act or the
Exchange Act shall have the same rights to contribution as the Underwriters, each person who controls the
Servicer within the meaning of either the Act or the Exchange Act shall have the same rights to contribution as
the Servicer and each person who controls the Company within the meaning of either the Act or the Exchange Act,
and each officer of the Company who shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case to the preceding sentence of this
paragraph (e). Any party entitled to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for contribution may be made against
another party or parties under this paragraph (e), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this
paragraph (e).
SECTION 9. Representations and Indemnities to Survive. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers, the Servicer and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters, the Servicer or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for
the Offered Notes. The provisions of Sections 7 and 8 hereof and this Section 9 shall survive the termination or
cancellation of this Agreement.
SECTION 10. Effectiveness of Agreement and Termination. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
This Agreement shall be subject to termination in the absolute discretion of the Underwriters, by notice
given to the Company prior to delivery of and payment for the Offered Notes, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall
have been established on such Exchange, (ii) a banking moratorium shall have been declared by federal authorities
or (iii) there shall have occurred any outbreak or material escalation of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States is such as to make it, in the reasonable
judgment of the Underwriters, impracticable to market the Offered Notes.
SECTION 11. Computational Materials and ABS Term Sheets.
(a) Not later than 10:30 a.m., Eastern time, on a date no later than four business days before delivery of
the Prospectus to the Underwriters, the Underwriters shall deliver to the Company five complete copies of all
materials provided by the Underwriters to prospective investors in the Offered Notes which constitute either (i)
“Computational Materials” within the meaning of the no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co.
Incorporated, and Xxxxxx Structured Asset Corporation and the no-action letter dated May 27, 1994 issued by the
Division of Corporation Finance of the Commission to the Public Securities Association (together, the “Xxxxxx
Letters”) or (ii) “ABS Term Sheets” within the meaning of the no-action letter dated February 17, 1995 issued by
the Division of Corporation Finance of the Commission to the Public Securities Association (the “PSA Letter” and
together with the Xxxxxx Letters, the “No-Action Letters”), if the filing of such materials with the Commission
is a condition of the relief granted in such letters. In the case of any such materials that constitute
“Collateral Term Sheets” within the meaning of the PSA Letter, if such Collateral Term Sheets have not previously
been delivered to the Company as contemplated by Section 11(b)(i) below, five complete copies of such Collateral
Term Sheets shall be delivered by the Underwriters to the Company no later than 10:30 a.m., Eastern time, on the
first business day following the date on which such Collateral Term Sheets were initially provided to a potential
investor. Each delivery of Computational Materials, Collateral Term Sheets and/or ABS Term Sheets to the Company
pursuant to this paragraph (a) shall be effected by delivering four copies of such materials to counsel for the
Company on behalf of the Company and one copy of such materials to the Company at the address specified in
Section 12 hereof.
(b) The Underwriters represent and warrant to and agree with the Company, as of the date hereof and as of
the Closing Date, that:
(i) if the Underwriters have provided any Collateral Term Sheets to potential investors in the Offered Notes
prior to the date hereof and if the filing of such materials with the Commission is a condition
of the relief granted in the PSA Letter, then in each such case the Underwriters delivered four
copies of such materials to counsel for the Company on behalf of the Company and one copy of
such materials to the Company at the address specified in Section 12 hereof no later than 10:30
a.m., Eastern time, on the first business day following the date on which such materials were
initially provided to a potential investor;
(ii) the Computational Materials (either in original, aggregated or consolidated form), Collateral Term
Sheets and ABS Term Sheets furnished to the Company pursuant to Section 11(a) or as
contemplated in Section 11(b)(i) constitute all of the materials furnished to prospective
investors by the Underwriters (whether in written, electronic or other format) prior to the
time of delivery thereof to the Company with respect to the Offered Notes in accordance with
the No-Action Letters, and such Computational Materials, Collateral Term Sheets and ABS Term
Sheets comply with the requirements of the No-Action Letters;
(iii) except as resulting directly from any Collateral Error, on the respective dates any such Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets with respect to the Offered Notes were
last furnished to each prospective investor and on the date of delivery thereof to the Company
pursuant to this Section 11 and on the Closing Date, such Computational Materials, Collateral
Term Sheets and/or ABS Term Sheets did not and will not include any untrue statement of a
material fact, or, when read in conjunction with the Prospectus, omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading;
(iv) all Computational Materials, Collateral Term Sheets and ABS Term Sheets contained and will contain a
legend, prominently displayed on the first page thereof, to the effect that the Company has not
prepared, reviewed or participated in the preparation of such Computational Materials,
Collateral Term Sheets or ABS Term Sheets, is not responsible for the accuracy thereof and has
not authorized the dissemination thereof;
(v) all Collateral Term Sheets with respect to the Offered Notes furnished to potential investors contained
and will contain a legend, prominently displayed on the first page thereof, indicating that the
information contained therein will be superseded by the description of the Mortgage Loans
contained in the Prospectus and, except in the case of the initial Collateral Term Sheet, that
such information supersedes the information in all prior Collateral Term Sheets; and
(vi) on and after the date hereof, the Underwriters shall not deliver or authorize the delivery of any
Computational Materials, Collateral Term Sheets, ABS Term Sheets or other materials relating to
the Offered Notes (whether in written, electronic or other format) to any potential investor
unless such potential investor has received a Prospectus prior to or at the same time as the
delivery of such Computational Materials, Collateral Term Sheets, ABS Term Sheets or other
materials.
Notwithstanding the foregoing, the Underwriters make no representation or warranty as to whether any
Computational Materials, Collateral Term Sheets or ABS Term Sheets included or will include any untrue statement
resulting directly from any Collateral Error (except any Corrected Collateral Error, with respect to materials
prepared after the receipt by the Underwriters from the Company or the Servicer of notice of such Corrected
Collateral Error or materials superseding or correcting such Corrected Collateral Error).
(c) The Underwriters acknowledge and agree that the Company has not authorized and will not authorize the
distribution of any Computational Materials, Collateral Term Sheets or ABS Term Sheets to any prospective
investor, and agree that any Computational Materials, Collateral Term Sheets or ABS Term Sheets with respect to
the Offered Notes furnished to prospective investors shall include a disclaimer as contemplated in paragraph
(b)(v) above. The Underwriters agree that they will not represent to investors that any Computational Materials,
Collateral Term Sheets and/or ABS Term Sheets were prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the Offered Notes is required to be delivered under the
Act, it shall be necessary to amend or supplement the Prospectus as a result of an untrue statement of a material
fact contained in any Computational Materials, Collateral Term Sheets or ABS Term Sheets provided by the
Underwriters pursuant to this Section 11 or the omission to state therein a material fact required, when
considered in conjunction with the Prospectus, to be stated therein or necessary to make the statements therein,
when read in conjunction with the Prospectus, not misleading, or if it shall be necessary to amend or supplement
any Current Report to comply with the Act or the rules thereunder, the Underwriters, at their expense, promptly
will prepare and furnish to the Company for filing with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such compliance. The Underwriters represent
and warrant to the Company, as of the date of delivery of such amendment or supplement to the Company, that such
amendment or supplement will not include any untrue statement of a material fact or, when read in conjunction
with the Prospectus, omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Company shall have no obligation to file such amendment or supplement if
the Company determines that (i) such amendment or supplement contains any untrue statement of a material fact or,
when read in conjunction with the Prospectus, omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being understood, however, that the Company shall
have no obligation to review or pass upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by the Underwriters to the Company pursuant to this paragraph (d) or (ii) such filing is not
required under the Act.
(e) The Underwriters (at their own expense) further agree to provide to the Company any accountants’ letters
obtained relating to the Computational Materials, Collateral Term Sheets and/or ABS Term Sheets, which
accountants’ letters shall be addressed to the Company or shall state that the Company may rely thereon; provided
that the Underwriters shall have no obligation to procure such letter.
SECTION 12. Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notice to the
Underwriters shall be directed to _________, [address], Attention: _______; notices to the Company shall be
directed to it at Wachovia Asset Funding Trust, LLC, [address], Attention: General Counsel and Chief Financial
Officer; and notices to the Servicer shall be directed to _________, [address], Attention: _______.
SECTION 13. Parties. This Agreement shall inure to the benefit of and be binding upon the Company, the
Underwriters, the Servicer, any controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. No purchaser of Offered Notes from the Underwriters shall be deemed to be a
successor by reason merely of such purchase.
SECTION 14. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (BUT WITH REFERENCE TO SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH BY ITS TERMS APPLIES TO THIS AGREEMENT).
SECTION 15. Reserved.
SECTION 16. Miscellaneous.
(a) This Agreement supersedes all prior or contemporaneous agreements and understandings relating to the
subject matter hereof.
(b) Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver, discharge or termination is sought.
(c) This Agreement may be signed in any number of counterparts each of which shall be deemed an original,
which taken together shall constitute one and the same instrument.
(d) The headings of the Sections of this Agreement have been inserted for convenience of reference only and
shall not be deemed a part of this Agreement.
If the foregoing is in accordance with your understanding of our agreement, please sign this Agreement
and return it to us.
Very truly yours,
WACHOVIA ASSET FUNDING TRUST, LLC
By:_______________________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above.
[NAME OF LEAD UNDERWRITER]
Acting on behalf of itself
and as the Representative of
the Underwriters
By:_______________________________________________
Name:
Title:
Solely for purposes of Sections 6, 8, 9, 10 and 12-15:
[NAME OF SERVICER],
as Servicer
By:_______________________________________________
Name:
Title:
SCHEDULE I
Offered Notes: Asset-Back Notes, Series [_____], Class __.
Registration Statement File Number: 333-______.
Initial Principal Amount of Offered Notes:
Class Initial Note Balance
_____________________________________ ____________________________________________________________________________
Class __ $_______
Classes of Book-Entry
Notes: Class __.
Description of Mortgage Loans: Fixed-rate and adjustable-rate one-to-four-family
residential mortgage loans having an aggregate principal
balance as of the Cut-Off Date of approximately $_______.
Denominations: The Offered Notes listed above under Book-Entry Notes will
be issued in book-entry form. Each such Note will be
evidenced by one or more notes registered in the name of
Cede & Co. (“Cede”) in the aggregate amount equal to the
Initial Note Balance of such Class. Interests in such
Classes of Offered Notes issued in the name of Cede may be
purchased by investors in minimum denominations of $_______
and integral multiples of $_______.
Cut-Off Date: _____ __, 200_
Note Ratings:
Class __
S&P Xxxxx’x
____ ________
Amount of Series [_____],
Underwriter Class __ Notes to be Purchased
_____________________________________________________________
______________ $_______
$_______
$_______
Purchase Price Percentage:
Class __ Notes _____%
