EXHIBIT 1.1
UNDERWRITING AGREEMENT
New York, New York
, 200
[Lead Underwriter's name and address]
Dear Sirs:
Wachovia Asset Securitization, Inc. (the "Company"), proposes
to sell to the underwriters named in Schedule II hereto (the "Underwriters"),
for whom you are acting as representative (the "Representative"), the principal
amount of the Pass-Through Certificates, Series 200 - , identified in Schedule I
hereto (the "Securities"), to be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement") dated as of ,200, among the
Company, , as servicer (in such capacity, the "Servicer"), and
, as trustee (the "Trustee").
Each class of Securities listed in Schedule I hereto will
represent an undivided beneficial ownership interest in the Trust 200 - (the
"Trust"). The assets of the Trust will include, among other things, a pool of
fixed-rate and adjustable-rate one-to-four-family residential mortgage loans
(the "Mortgage Loans") transferred to the Company pursuant to a mortgage loan
purchase agreement dated as of , 200 (the "Mortgage Loan Purchase
Agreement"), between and the Company, and by the Company to the Trust
pursuant to the Pooling and Servicing Agreement. Custody of the Mortgage Files
with respect to the Mortgage Loans will be maintained by , as custodian
(the "Custodian"). This Underwriting Agreement shall hereinafter be referred to
as the "Agreement." This Agreement, the Pooling and Servicing Agreement and the
Mortgage Loan Purchase Agreement are collectively hereinafter referred to as the
"Basic Documents." Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter that:
(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 been declared effective by the Commission, for the registration under the
Act of the Securities. 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
Securities and the plan of distribution thereof and has previously advised the
Representative 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 "Basic
Prospectus"; and such supplemented form of prospectus, in the form
in which it shall be filed with the Commission pursuant to Rule 424 (including
the Basic Prospectus as so supplemented) is hereinafter called the "Final
Prospectus." Any reference herein to the Registration Statement, the Basic
Prospectus or the Final 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 Basic Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement, the Basic Prospectus or the Final 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 Basic
Prospectus or the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference pursuant to Item 12 of Form S-3 under the Act.
(b) As of the date hereof, when the Final 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 Final Prospectus is filed
with the Commission and at the Closing Date (as hereinafter defined), (i) the
Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, will comply in all
material respects with the requirements of the Act and the respective rules and
regulations 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, and (iii) the Final 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; 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 Final
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 any Underwriter through the Representative specifically for use in
connection with the preparation of the Registration Statement and the Final
Prospectus or (B) the Current Report (as defined in Section 5(b) below), or in
any amendment thereof or supplement thereto, incorporated by reference in the
Registration Statement or the Final Prospectus (or any amendment thereof or
supplement thereto).
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and has corporate and other 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.
(d) The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or the Basic
Prospectus or for any additional information or (ii) 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.
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(e) This Agreement has been duly authorized, executed and
delivered by the Company, and the other Basic Documents, 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.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally but not jointly, to purchase from the Company, at the purchase price
set forth in Schedule II hereto, the principal amount or percentage interest of
the Securities set forth opposite such Underwriter's name therein.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at the office, on the date and at the time specified in
Schedule I hereto, which date and time may be postponed by agreement between the
Representative and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to the Representative for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representative of the purchase price thereof in the
manner set forth in Schedule II hereto. If Schedule I indicates that the
Securities are to be issued in book-entry form, delivery of the Securities shall
be made through the facilities of the depository or depositories set forth on
Schedule I. Alternatively, certificates for the Securities shall be registered
in such names and in such denominations as the Representative may request not
less than three full business days in advance of the Closing Date.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Representative in New York, New York,
not later than 1:00 p.m., New York City time, on the business day prior to the
Closing Date.
4. Offering by the Underwriters. It is understood by the
parties hereto that, after the Registration Statement becomes effective, the
Underwriters propose to offer the Securities for sale to the public (which may
include selected dealers) as set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic Prospectus
unless the Company has furnished the Representative a copy for its review prior
to filing and will not file any such proposed amendment or supplement to which
the Representative reasonably objects. Subject to the foregoing sentence, the
Company will cause the Final Prospectus to be filed with the Commission pursuant
to Rule 424. The Company will
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advise the Representative promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424, (ii) when any amendment to the
Registration Statement relating to the Securities 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 Final 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 Securities 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 10 below) with respect to the Securities which are delivered
by the Underwriters to the Company pursuant to Section 10 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 10, and will promptly advise the Underwriter when such
Current Report has been so filed. Such Current Report shall be incorporated by
reference in the Final 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 10
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 10 below), or which contain
erroneous information or contain any untrue statement of a material fact or,
which, when read in conjunction with the Final 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 10 hereof.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Final 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 Final 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 Final Prospectus other than any amendments or
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supplements of such Computational Materials that are furnished to the Company
pursuant to Section 10(d) hereof which the Company determines to file in
accordance therewith.
(d) The Company will furnish to the Representative 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 Underwriter or dealer may be required by the
Act, as many copies of the Final Prospectus and any amendments thereof and
supplements thereto (other than exhibits to the related Current Report) as the
Representative 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, if required, will be borne by Wachovia Securities,
Inc.]
(e) The Company will furnish such information as may be
required and otherwise cooperate in qualifying the Securities for sale under the
laws of such jurisdictions as the Representative may reasonably designate and to
maintain such qualifications in effect so long as required for the distribution
of the Securities; 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 will pay all expenses (other than fees of
counsel for the Underwriters, except as provided herein) incident to the
performance of the obligations under this Underwriting Agreement, including:
(i) the word processing, printing and filing of the
Registration Statement as originally filed and of each amendment thereto;
(ii) the reproduction of this Underwriting Agreement;
(iii) the preparation, printing, issuance and delivery of the
Securities to the Underwriters;
(iv) the fees and disbursements of counsel and accountants
for the Company;
(v) the qualification of the Securities under securities
laws in accordance with the provisions of Section 5(e) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of a blue sky
survey, if requested by the Representative;
(vi) if requested by the Representative, the determination of
the eligibility of the Securities for investment and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of a legal investment memorandum;
(vii) the printing and delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each amendment thereto,
of the preliminary prospectuses, and of the Basic Prospectus and Final
Prospectus and any amendments or supplements thereto;
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(viii) if requested by the Representative, the printing and
delivery to the Underwriters of copies of any blue sky or legal investment
memorandum;
(ix) the fees of any rating agency rating the Securities; and
(x) the fees and expenses of the Trustee, the Servicer, the
Custodian and their counsel.
6. Conditions Precedent to the Obligations of the
Underwriters. The obligations of the Underwriters to purchase the Securities
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 Underwriters 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 and
otherwise in form and substance reasonably satisfactory to the Underwriters and
counsel for the Underwriters and (ii) a letter dated the Closing Date, updating
the letters referred to in clause (i) above, in form and substance reasonably
satisfactory to the Underwriters and counsel for the Underwriters.
(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
Securities shall have been duly taken or 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 be contemplated
by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
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 Securities;
(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, New York or
North Carolina 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,
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declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion
of , counsel to the Servicer and the Seller addressed to the Underwriters, dated
the Closing Date in form and substance reasonably satisfactory to the
Underwriters and their counsel, with respect to such matters as the Underwriters
may require.
(e) The Underwriters shall have received a favorable opinion
of [Cadwalader, Xxxxxxxxxx & Xxxx], special tax counsel for the Company,
addressed to the Underwriters and dated the Closing Date and reasonably
satisfactory in form and substance to the Underwriters, generally to the effect
that (i) the information in the Basic Prospectus under "Federal Income Tax
Consequences" and in the Final Prospectus under "Federal Income Tax
Consequences," insofar as such information describes federal statutes and
regulations or otherwise constitute matters of law or legal conclusions of the
statutes or regulations of such jurisdiction have been prepared or reviewed by
such counsel, and such information is correct in all material respects; and (ii)
assuming compliance with all of the provisions of the Pooling and Servicing
Agreement, the applicable portions of the Trust will qualify as one or more
REMICs, and the portion of the Trust exclusive of such REMICs will constitute a
grantor trust, pursuant to Section 860D of the Internal Revenue Code of 1986
(the "Code") for federal income tax purposes as of the Closing Date and will
continue to qualify as one or more REMICs and as a grantor trust for so long as
the Trust continues to meet the requirements set forth in the Code and
applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion
of [Cadwalader, Xxxxxxxxxx & Xxxx], special counsel for the Company, addressed
to the Underwriters and dated the Closing Date and reasonably satisfactory in
form and substance to the Underwriters, with respect to the validity of the
Certificates, ERISA matters and such other related matters as the Underwriters
shall require, and the Company shall have furnished or caused to be furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion
of counsel for the Trustee, addressed to the Underwriters and dated the Closing
Date and reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, with respect to such matters as the Underwriters
may require.
(h) The Underwriters shall have received a favorable opinion
of counsel for the Custodian, addressed to the Underwriters and dated the
Closing Date and reasonably satisfactory in form and substance to the
Underwriters and counsel to the Underwriters, with respect to such matters as
the Underwriters may require.
(i) The Underwriters shall have received a certificate dated
the Closing Date of the President, any Vice President or the Secretary of the
Company in which the officer shall state that, to the best of his or her
knowledge after reasonable investigation, (i) the representations and warranties
of the Company with respect to the Mortgage Loans contained in any Basic
Document are true and correct, (ii) the representations and warranties of the
Company
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in this Agreement are true and correct, (iii) 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, (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued, (v) no proceedings
for that purpose have been instituted or are contemplated by the Commission, and
(vi) there has been no amendment or other document filed affecting the
Certificate of Incorporation or bylaws of the Company, and no such amendment has
been authorized.
(j) On or before the Closing Date, the Underwriters shall
have received evidence satisfactory to the Underwriters that each class of
Securities has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Securities and the Pooling and
Servicing Agreement will conform in all material respects to the descriptions
thereof contained in the Final Prospectus.
(l) The Underwriters shall not have discovered and disclosed
to the Company on or prior to the Closing Date that the Registration Statement
or the Final 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
[Cadwalader, Xxxxxxxxxx & Xxxx], counsel for the Underwriters, is material and
is required to be stated therein or is necessary to make the statements therein
not misleading.
(m) All corporate proceedings and other legal matters
relating to the authorization, form and validity of this Agreement, the Pooling
and Servicing Agreement, the Securities, the Registration Statement and the
Final 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 Underwriters, 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.
(n) At the Closing Date, the Underwriters shall have
received from [Cadwalader, Xxxxxxxxxx & Xxxx], counsel for the Underwriters, a
letter with respect to the Final Prospectus, in form and substance satisfactory
to the Underwriters.
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 Underwriters.
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 hereof.
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7. Reimbursement of Underwriters' Expenses. If the sale of
the Securities 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 any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless any
Underwriter and each person who controls the Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them 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) 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 Securities
as originally filed or in any amendment thereof, or in the Basic Prospectus or
the Final Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon an 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, and agree to reimburse each such indemnified party 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 therein (A) in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representative specifically for use in connection with the preparation
thereof or (B) in any Current Report or any amendment or supplement thereof,
except to the extent that any untrue statement or alleged untrue statement
therein results (or is alleged to have resulted) directly from an error (a
"Collateral Error") in the information concerning the Mortgage Loans furnished
by the Company to any Underwriter 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 such Current Report (or amendment or
supplement thereof), (ii) such indemnity with respect to the Basic Prospectus
shall not inure to the benefit of any Underwriter (or any person controlling
such Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof if such person
did not receive a copy of the Final Prospectus (or the Final Prospectus as
amended or supplemented) excluding documents incorporated therein by reference
at or prior to the confirmation of the sale of such Securities 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 Basic Prospectus was corrected in
the Final Prospectus (or the Final Prospectus as amended or supplemented), and
(iii) such indemnity with respect to any Collateral Error shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any loss, claim, damage or liability received any
Computational Materials, Collateral Term Sheets or ABS Term Sheets that
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were prepared on the basis of such Collateral Error, if, prior to the time of
confirmation of the sale of the Securities to such person, the Company notified
the Underwriter 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 such Underwriter 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 Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors and its officers who sign the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to (A) written
information relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter through the Representative 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 any Underwriter pursuant to Section 10 and incorporated by
reference in the Registration Statement or the Final Prospectus (except that no
such indemnity shall be available for any losses, claims, damages or
liabilities, or actions in respect thereof resulting from any Collateral Error,
other than a Corrected Collateral Error). This indemnity agreement will be in
addition to any liability which the Underwriter may otherwise have. The Company
acknowledges that the statements set forth in (i) the first sentence of the last
paragraph on the front cover of the Final Prospectus and (ii) in the first
sentence of the second and third paragraphs under the heading "Method of
Distribution" in the Final Prospectus constitute the only information furnished
in writing by or on behalf of the several 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
any Underwriter), and you, as the Representative, confirm that such statements
are correct.
(c) 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
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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 (exclusive of any
local counsel), approved by the Representative in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) 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).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or (b)
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 or the Underwriters on the grounds
of policy or otherwise, the Company and the Underwriters 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 and one or more of the Underwriters 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 so that the
Underwriters are responsible for that portion represented by
the percentage that the underwriting compensation received by
them bears to the sum of such underwriting compensation and
the purchase price of the Securities specified in Schedule II
hereto and the Company is responsible for the balance;
provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible
under this subparagraph (i) for any amount in excess of the
underwriting compensation applicable to the Securities
purchased by such Underwriter hereunder; 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 on
the one hand and the Underwriters on the other 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
-11-
results from information prepared by the Company on the one
hand or the Underwriters on the other and that party's
relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Notwithstanding anything to the contrary in this paragraph (d), 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 an Underwriter within the meaning of either the Act or the Exchange Act
shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, 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 (d). 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 (d), 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 (d).
9. Default by One or More of the Underwriters. If any one
or more Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder (the
"Defaulted Securities") and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
Representative shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representative shall not have completed such
arrangements within such 24-hour period, then the remaining Underwriters shall
be obligated severally to take up and pay for (in the respective proportions
which the amount of Securities set forth opposite their names in Schedule II
hereto bear to the aggregate amount of Securities set forth opposite the names
of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representative shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. No action taken pursuant to this
Section 9 shall relieve any defaulting Underwriter from its liability in respect
of its default.
10. Computational Materials and ABS Term Sheets.
-12-
(a) Not later than 10:30 a.m., New York City time, on a date
no later than four business days before delivery of the Final 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
Securities 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 10(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., New York City 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 at the address specified in Section 13 hereof and one
copy of such materials to the Company.
(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 an Underwriter has provided any Collateral Term
Sheets to potential investors in the Securities 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 such Underwriter delivered four
copies of such materials to counsel for the Company on behalf
of the Company at the address specified in Section 13 hereof
and one copy of such materials to the Company no later than
10:30 a.m., New York City 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
10(a) or as contemplated in Section 10(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 Securities 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 Securities were last furnished to each
-13-
prospective investor and on the date of delivery thereof to
the Company pursuant to this Section 10 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 Final 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
Securities 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 Final 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 Securities (whether
in written, electronic or other format) to any potential
investor unless such potential investor has received a Final
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 Underwriter from the Company of
notice of such Corrected Collateral Error or materials superseding or correcting
such 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 Securities furnished to prospective
investors shall include a disclaimer in the form set forth 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
Securities is required to be delivered under the Act, it shall be necessary to
amend or supplement the Final Prospectus as a
-14-
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 10 or the omission to state therein a
material fact required, when considered in conjunction with the Final
Prospectus, to be stated therein or necessary to make the statements therein,
when read in conjunction with the Final 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 Final 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 Final 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) Each Underwriter (at its own expense) further agrees 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.
11. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representative, by notice given to
the Company prior to delivery of and payment for the Securities, 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 Representative, impracticable to market the
Securities.
12. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers 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 any Underwriter 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 Securities.
The provisions of Sections 7 and 8 hereof and this Section 12 shall survive the
termination or cancellation of this Agreement.
-15-
13. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representative, will be
mailed, delivered or telegraphed and confirmed to them, at the address specified
in Schedule I hereto or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at , Attention: .
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
15. 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).
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.
-16-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Underwriter.
Very truly yours,
WACHOVIA ASSET SECURITIZATION, INC.
By: __________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted as of the date
specified in Schedule I hereto.
[NAME OF LEAD UNDERWRITER]
By: __________________________
Name:
Title:
For itself and as the authorized
Representative of other Underwriters
named in Schedule II hereto.
-17-
SCHEDULE I
Underwriting Agreement dated ,200
Registration Statement No. 333-
Representative: [Name of Lead Underwriter]
Title: Pass-Through Certificates, Series 200 -
Purchase Price and Description of the Securities:
Principal Pass-Through Form of Required Rating
Certificates Balance Rate Certificates
------------ ------- ---- ------------
[ ] [ ]
----- -----
Depositories for Book-Entry Certificates: The Depository Trust Company;
Clearstream Banking; Euroclear System
Closing Date, Time and Location: , 200 a.m., New York City
time, Office of [Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000]
-20-
SCHEDULE II
Securities
----------
Principal
Amount of % of Class % of Class % of Class
Underwriter % of Securities Purchase Price**
----------- Total Purchased* ---------------- Certificates Certificates Certificates
----- ----------
% $ $ % % %
% $ $ % % %
% $ $ % % %
- ----------- ----------- - - -
Total...................... 100% $ $ 100% 100% 100%
==== ============ ============ ==== ==== ====
---------------------------------------------------------------------------------------------------------------------------------
* Subject to final Class sizes.
** As a percentage of the Principal Amount of Securities Purchased.
