EXHIBIT 1.1
WACHOVIA BANK
COMMERCIAL MORTGAGE TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-C23
UNDERWRITING AGREEMENT
Charlotte, North Carolina
February 24, 2006
WACHOVIA CAPITAL MARKETS, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
NOMURA SECURITIES INTERNATIONAL, INC.
2 World Financial Center
Building B
New York, New York 10281
BANC OF AMERICA SECURITIES LLC
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
DEUTSCHE BANK SECURITIES INC.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. XXXXXX SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Wachovia Commercial Mortgage Securities, Inc., a North Carolina corporation (the
"Company"), intends to issue its Commercial Mortgage Pass-Through Certificates,
Wachovia Bank Commercial Mortgage Trust, Series 2006-C23 (the "Certificates"),
in fourteen (14) classes (each, a "Class") as designated in the Prospectus
Supplement (as defined below). Pursuant to this underwriting agreement (the
"Agreement"), the Company further proposes to sell to Wachovia Capital Markets,
LLC ("Wachovia Securities"), Nomura Securities International, Inc. ("Nomura
Securities"), Banc of America Securities LLC ("Banc of America"), Deutsche Bank
Securities Inc. ("Deutsche Bank"), Xxxxxxx, Xxxxx & Co. ("Xxxxxxx Xxxxx") and
X.X. Xxxxxx Securities Inc. ("JPMorgan", and each of Wachovia Securities, Nomura
Securities, Banc of America, Deutsche Bank, Xxxxxxx Xxxxx and XX Xxxxxx,
individually, an "Underwriter" and, collectively, the "Underwriters") the
Certificates set forth in Schedule I hereto (the "Underwritten Certificates") in
the respective original principal amounts set forth in Schedule I. The
Certificates represent in the aggregate the entire beneficial ownership interest
in a trust fund (the "Trust Fund") consisting of a segregated pool (the
"Mortgage Pool") of Three Hundred and Five (305) mortgage loans (the "Mortgage
Loans") having an approximate aggregate principal balance of $4,229,859,030 of
the Cut-Off Date secured by first liens on certain fee or leasehold interests in
multifamily and commercial properties (the "Mortgaged Properties"). The
Certificates will be issued on March 7, 2006 (the "Closing Date"), pursuant to a
pooling and servicing agreement (the "Pooling and Servicing Agreement"), dated
as of March 1, 2006 among the Company, Wachovia Bank, National Association, as
master servicer (in such capacity, the "Master Servicer"), LNR Partners, Inc.,
as special servicer (the "Special Servicer"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). One Hundred Thirty-Nine (139) of the Mortgage Loans
(the "Wachovia Mortgage Loans"), having an aggregate principal balance of
$2,903,975,599 as of the Cut-Off Date, were acquired by the Company from
Wachovia Bank, National Association ("Wachovia") pursuant to a mortgage loan
purchase agreement, dated as of March 1, 2006 (the "Wachovia Mortgage Loan
Purchase Agreement"), between Wachovia and the Company. Eighty-seven (87) of the
Mortgage Loans (the "Nomura Mortgage Loans"), having an aggregate principal
balance of $897,454,002 as of the Cut-Off Date, were acquired by the Company
from Nomura Credit & Capital, Inc. ("Nomura") pursuant to a mortgage loan
purchase agreement, dated as of March 1, 2006 (the "Nomura Mortgage Loan
Purchase Agreement") between Nomura and the Company. Seventy-nine (79) of the
Mortgage Loans (the "Artesia Mortgage Loans"), having an aggregate principal
balance of $428,429,428 as of the Cut-Off Date, were acquired by the Company
from Artesia Mortgage Capital Corporation ("Artesia") pursuant to a mortgage
loan purchase agreement, dated as of March 1, 2006 (the "Artesia Mortgage Loan
Purchase Agreement" and, collectively with the Wachovia Mortgage Loan Purchase
Agreement and the Nomura Mortgage Loan Purchase Agreement, the "Mortgage Loan
Purchase Agreements"), between Artesia and the Company. Each of Wachovia, Nomura
and Artesia is referred to herein, individually, as a "Mortgage Loan Seller" and
collectively, as the "Mortgage Loan Sellers".
Two separate real estate mortgage investment conduit ("REMIC")
elections will be made with respect to certain portions of the Trust Fund for
federal income tax purposes. The Underwritten Certificates and the Mortgage Pool
are described more fully in Schedule I hereto and in a registration statement
furnished to you by the Company.
Capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned to them in the Pooling and Servicing Agreement.
1. Representations and Warranties. (a) The Company represents and
warrants to, and agrees with, each Underwriter that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-127668) on
Form S-3 for the registration of Commercial Mortgage Pass-Through
Certificates, issuable in series, including the Underwritten Certificates,
under the Securities Act of 1933, as amended (the "1933 Act"), which
registration statement has become effective and a copy of which, as
amended to the date hereof, has heretofore been delivered to you. The
Company meets the requirements for use of Form S-3 under the 1933 Act, and
such registration statement, as amended at the date hereof, meets the
requirements set forth in Rule 415(a)(1)(x) under the 1933 Act and
complies in all other material respects with the 1933 Act and the rules
and regulations thereunder. The Company proposes to file with the
Commission, with your consent, pursuant to Rule 424 under the 1933 Act, a
supplement dated February 24, 2006 (the "Prospectus Supplement") to the
prospectus dated February 24, 2006 (the "Base Prospectus"), relating to
the Underwritten Certificates and the method of distribution thereof, and
has previously advised you of all further information (financial and
other) with respect to the Underwritten Certificates and the Mortgage Pool
to be set forth therein. Such registration statement (No. 333-127668),
including all exhibits thereto, is referred to herein as the "Registration
Statement"; and the Base Prospectus and the Prospectus Supplement,
together with any amendment thereof or supplement thereto authorized by
the Company prior to the Closing Date for use in connection with the
offering of the Underwritten Certificates, are hereinafter called the
"Prospectus". As used herein, "Pool Information" means the mortgage pool
information reflected in the Master Tape and the Prospectus Supplement.
The "Master Tape" shall mean the compilation of information and data
regarding the Mortgage Loans covered by the letters rendered by KPMG LLP
(a "hard copy" of which Master Tape was produced on behalf of the Mortgage
Loan Sellers) described in Section 6(h)(ii) of this Agreement.
(ii) As of the date hereof, as of the Time of Sale (as defined
herein), as of the date on which the Prospectus Supplement is first filed
pursuant to Rule 424 under the 1933 Act, as of the date on which, prior to
the Closing Date, any amendment to the Registration Statement becomes
effective, as of the date on which any supplement to the Prospectus
Supplement is filed with the Commission, and as of the Closing Date, (i)
the Registration Statement, as amended as of any such time, and the
Prospectus, as amended or supplemented as of any such time, complies and
will comply in all material respects with the applicable requirements of
the 1933 Act and the rules and regulations thereunder, (ii) the
Registration Statement, as amended as of any such time, does not include
and will not include any untrue statement of a material fact and does not
omit and will not omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, and (iii) the Prospectus, as amended or supplemented as of any
such time, does not include and will not include any untrue statement of a
material fact and does not omit and will not omit to state any material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (x)
statements contained in or omitted from the Registration Statement or the
Prospectus or any amendment or supplement thereto made in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through you specifically for use in the
Registration Statement and the Prospectus (such information being
identified in Section 8(b) hereof), (y) the Mortgage Loan Seller Covered
Information (as defined in Section 8 hereof) or (z) any information with
respect to which either the Master Servicer (the "Master Servicer Covered
Information"), the Special Servicer (the "Special Servicer Covered
Information") or the Trustee (the "Trustee Covered Information") provides
indemnification pursuant to the Master Servicer Indemnification Agreement,
the Special Servicer Indemnification Agreement or the Trustee
Indemnification Agreement, as applicable (as defined in Section 6 hereof).
(iii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
North Carolina with corporate power and authority to own, lease or operate
its properties and to conduct its business as now conducted by it and to
enter into and perform its obligations under this Agreement and the
Pooling and Servicing Agreement; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business.
(iv) As of the date hereof, as of the date on which the
Prospectus Supplement is first filed pursuant to Rule 424 under the 1933
Act, as of the date on which, prior to the Closing Date, any amendment to
the Registration Statement becomes effective, as of the date on which any
supplement to the Prospectus Supplement is filed with the Commission, and
as of the Closing Date, there has not and will not have been (i) any
request by the Commission for any further amendment to the Registration
Statement or the Prospectus or for any additional information, (ii) any
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threat of any
proceeding for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Underwritten Certificates for sale
in any jurisdiction or any initiation or threat of any proceeding for such
purpose.
(v) Each of this Agreement, the Pooling and Servicing
Agreement and each Mortgage Loan Purchase Agreement has been duly
authorized, executed and delivered by the Company and each of this
Agreement, the Pooling and Servicing Agreement, and each Mortgage Loan
Purchase Agreement constitutes legal, valid and binding agreements of the
Company, enforceable against the Company in accordance with their
respective terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of the rights of creditors
generally, (ii) general principles of equity, whether enforcement is
sought in a proceeding in equity or at law, and (iii) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of
this Agreement, the Pooling and Servicing Agreement or any Mortgage Loan
Purchase Agreement that purport to provide indemnification from securities
law liabilities.
(vi) As of the Closing Date, the Underwritten Certificates,
the Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreements will conform in all material respects to the respective
descriptions thereof contained in the Prospectus. As of the Closing Date,
the Underwritten Certificates will be duly and validly authorized and,
when delivered in accordance with the Pooling and Servicing Agreement to
you against payment therefor as provided herein, will be duly and validly
issued and outstanding and entitled to the benefits of the Pooling and
Servicing Agreement.
(vii) The Company is not in violation of its certificate of
incorporation or by laws or in default under any agreement, indenture or
instrument the effect of which violation or default would be material to
the Company or which violation or default would have a material adverse
affect on the performance of its obligations under this Agreement, the
Pooling and Servicing Agreement or any Mortgage Loan Purchase Agreement.
Neither the issuance and sale of the Underwritten Certificates, nor the
execution and delivery by the Company of this Agreement, any Mortgage Loan
Purchase Agreement or the Pooling and Servicing Agreement nor the
consummation by the Company of any of the transactions herein or therein
contemplated, nor compliance by the Company with the provisions hereof or
thereof, did, does or will conflict with or result in a breach of any term
or provision of the certificate of incorporation or by laws of the Company
or conflict with, result in a breach, violation or acceleration of, or
constitute a default (or an event which, with the passing of time or
notification, or both, would constitute a default) under, the terms of any
indenture or other agreement or instrument to which the Company is a party
or by which it or any material asset is bound, or any statute, order or
regulation applicable to the Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company.
(viii) There is no action, suit or proceeding against the
Company pending, or, to the knowledge of the Company, threatened, before
any court, arbitrator, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the Pooling and Servicing
Agreement, any Mortgage Loan Purchase Agreement or the Underwritten
Certificates, (ii) seeking to prevent the issuance of the Underwritten
Certificates or the consummation of any of the transactions contemplated
by this Agreement, (iii) that might materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement, the Pooling and Servicing Agreement,
any Mortgage Loan Purchase Agreement or the Underwritten Certificates or
(iv) seeking to affect adversely the federal income tax attributes of the
Underwritten Certificates as described in the Prospectus.
(ix) There are no contracts, indentures or other documents of
a character required by the 1933 Act or by the rules and regulations
thereunder to be described or referred to in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration Statement
which have not been so described or referred to therein or so filed or
incorporated by reference as exhibits thereto.
(x) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering or sale of the Underwritten Certificates pursuant to this
Agreement, except such as have been, or as of the Closing Date will have
been, obtained or such as may otherwise be required under applicable state
securities laws in connection with the purchase and offer and sale of the
Underwritten Certificates by the Underwriters and any recordation of the
respective assignments of the Mortgage Loans to the Trustee pursuant to
the Pooling and Servicing Agreement that have not been completed.
(xi) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
business now operated by it, and the Company has not received any notice
of proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which, singly or in the
aggregate, if the subject of any unfavorable decision, ruling or finding,
would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company.
(xii) Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement and the
delivery and sale of the Underwritten Certificates (other than such
federal, state and local taxes as may be payable on the income or gain
recognized therefrom) have been or will be paid at or prior to the Closing
Date.
(xiii) Neither the Company nor the Trust Fund is, and neither
the sale of the Underwritten Certificates in the manner contemplated by
the Prospectus nor the activities of the Trust Fund pursuant to the
Pooling and Servicing Agreement will cause the Company or the Trust Fund
to be, an "investment company" or under the control of an "investment
company" as such terms are defined in the Investment Company Act of 1940,
as amended (the "Investment Company Act").
(xiv) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Company reported the transfer of
the Mortgage Loans to the Trustee in exchange for the Certificates and
will report the sale of the Underwritten Certificates to the Underwriters
pursuant to this Agreement as a sale of the interests in the Mortgage
Loans evidenced by the Underwritten Certificates. The consideration
received by the Company upon the sale of the Underwritten Certificates to
the Underwriters will constitute reasonably equivalent value and fair
consideration for the Underwritten Certificates. The Company will be
solvent at all relevant times prior to, and will not be rendered insolvent
by, the sale of the Underwritten Certificates to the Underwriters. In
addition, the Company was solvent at all relevant times prior to, and was
not rendered insolvent by, the transfer of the Mortgage Loans to the
Trustee on behalf of the Trust Fund. The Company is not selling the
Underwritten Certificates to the Underwriters and did not transfer the
Mortgage Loans to the Trustee on behalf of the Trust Fund with any intent
to hinder, delay or defraud any of the creditors of the Company.
(xv) At the Closing Date, the respective classes of
Underwritten Certificates shall continue to have maintained ratings no
lower than those set forth in Schedule I hereto by the nationally
recognized statistical rating organizations identified in Schedule I
hereto (individually and collectively, the "Rating Agency").
(xvi) The Company is not, and on the date on which the initial
bona fide offer of the Underwritten Certificates is made will not be, an
"ineligible issuer," as defined in Rule 405 under the 1933 Act.
(xvii) At or prior to the time when sales to investors of the
Underwritten Certificates were first made as determined in accordance with
Rule 159 of the 1933 Act (the "Time of Sale"), the Company had prepared
the following information (collectively, the "Time of Sale Information"):
each "free-writing prospectus" (as defined pursuant to Rule 405 under the
1933 Act) (a "Free Writing Prospectus") listed on Annex A hereto. If,
subsequent to the date of this Agreement, the Company and the Underwriters
have determined that such information included an untrue statement of
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading and have terminated their old purchase
contracts and entered into new purchase contracts with purchasers of the
Underwritten Certificates, then "Time of Sale Information", in connection
with a particular purchaser of the Underwritten Certificates will refer to
the information available to such purchaser at the time of entry into the
last such new purchase contract with such particular purchaser, including
any information that corrects such material misstatements or omissions
("Corrective Information").
(xviii) The Time of Sale Information, at the Time of Sale did
not, and at the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that the Company makes no
representation and warranty with respect to (i) any statements or
omissions relating to any Underwriter made in reliance upon and in
conformity with information furnished to the Company in writing by such
Underwriter expressly for use in such Time of Sale Information, (ii) any
Mortgage Loan Seller Covered Information (as defined herein) in such Time
of Sale Information or (iii) any Master Servicer Covered Information, any
Special Servicer Covered Information or any Trustee Covered Information.
(xix) Other than the Prospectus, the Company (including its
agents and representatives other than the Underwriters in their capacity
as such) has not made, used, prepared, authorized, approved or referred to
and will not prepare, make, use, authorized, approve or refer to any
"written communication" (as defined in Rule 405 under the 1933 Act) that
constitutes an offer to sell or solicitation of an offer to buy the
Underwritten Certificates other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the 1933 Act or Rule 134
under the 1933 Act, (ii) the Time of Sale Information and (iii) each other
written communication approved in writing in advance by the Underwriters
(each such communication referred to in clause (ii) and this clause (iii)
constituting an "issuer free writing prospectus", as defined in Rule
433(h) under the 1933 Act being referred to as an "Issuer Free Writing
Prospectus"). Each such Issuer Free Writing Prospectus complied in all
material respects with the 1933 Act, has been filed in accordance with
Section 4(c)(iv) (to the extent required thereby) and, when taken together
with all other material delivered at the Time of Sale, did not at the Time
of Sale, and at the Closing Date will not, contain any untrue statements
of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no
representation and warranty with respect to (i) any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter expressly for use in any Issuer Free Writing Prospectus, (ii)
any Mortgage Loan Seller Covered Information or (iii) any Master Servicer
Covered Information, any Special Servicer Covered Information or any
Trustee Covered Information in any Issuer Free Writing Prospectus.
(b) Xxxxxxxx represents and warrants to, and agrees with, each
Underwriter, that:
(i) Wachovia is a national banking association validly
existing under the laws of the United States of America and possesses all
requisite authority, power, licenses, permits and franchises to carry on
its business as currently conducted by it and to execute, deliver and
comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by Xxxxxxxx and, assuming due authorization,
execution and delivery hereof by the Company and the Underwriters,
constitutes a legal, valid and binding obligation of Wachovia, enforceable
against Wachovia in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights in general, as
they may be applied in the context of the insolvency of a national banking
association, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and by
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws.
(iii) The execution and delivery of this Agreement by Xxxxxxxx
and Xxxxxxxx's performance and compliance with the terms of this Agreement
will not (A) violate Wachovia's articles of association or by laws, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any contract, agreement or other instrument to
which Wachovia is a party or by which Wachovia is bound.
(iv) Wachovia is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would materially and adversely affect the condition
(financial or other) or operations of Wachovia or its properties or have
consequences that would materially and adversely affect its performance
hereunder.
(v) Wachovia is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that would materially and adversely affect the ability
of Wachovia to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by Wachovia of its obligations under this
Agreement (except to the extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by Xxxxxxxx of or compliance by Wachovia with this Agreement
or the consummation of the transactions contemplated by this Agreement
except as have previously been obtained.
(vii) No litigation is pending or, to the best of Xxxxxxxx's
knowledge, threatened against Xxxxxxxx that would assert the invalidity of
this Agreement, prohibit its entering into this Agreement or materially
and adversely affect the performance by Wachovia of its obligations under
this Agreement.
(viii) Each representation and warranty of the Company set
forth in Section 1(a) hereof is true and correct as of the date hereof or
as of the date specified in such representation and warranty.
(c) Each Underwriter represents and warrants to the Company that, as
of the date hereof and as of the Closing Date, such Underwriter has complied in
all material respects with all of its obligations under Section 4 hereof.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Company
agrees to sell to the Underwriters, and the Underwriters agree, severally and
not jointly, to purchase from the Company, at the applicable purchase prices set
forth in Schedule I hereto, the respective principal amounts of the Underwritten
Certificates set forth opposite the name of each Underwriter set forth in
Schedule II hereto, and any additional portions of the Underwritten Certificates
that any such Underwriter may be obligated to purchase pursuant to Section 10
hereof, in all cases plus accrued interest as set forth in Schedule I.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Certificates shall be made in the manner, at the location(s), on
the Closing Date at the time specified in Schedule I hereto (or such later date
not later than ten business days after such specified date as you shall
designate), which date and time may be changed by agreement between you and the
Company or as provided in Section 10 hereof. Delivery of the Underwritten
Certificates shall be made either directly to you or through the facilities of
The Depository Trust Company ("DTC"), as specified in Schedule I hereto, for the
respective accounts of the Underwriters against payment by the respective
Underwriters of the purchase price therefor in immediately available funds wired
to such bank as may be designated by the Company, or such other manner of
payment as may be agreed upon by the Company and you. Any Class of Underwritten
Certificates to be delivered through the facilities of DTC shall be represented
by one or more global Certificates registered in the name of Cede & Co., as
nominee of DTC, which global Certificate(s) shall be placed in the custody of
DTC not later than 10:00 a.m. (New York City time) on the Closing Date pursuant
to a custodial arrangement to be entered into between the Trustee or its agent
and DTC. Unless delivered through the facilities of DTC, the Underwritten
Certificates shall be in fully registered certificated form, in such
denominations and registered in such names as you may have requested in writing
not less than one full business day in advance of the Closing Date.
The Company agrees to have the Underwritten Certificates, including
the global Certificates representing the Underwritten Certificates to be
delivered through the facilities of DTC, available for inspection, checking and,
if applicable, packaging by you in New York, New York, not later than the close
of business (New York City time) on the business day preceding the Closing Date.
References herein, including, without limitation, in the Schedules
hereto, to actions taken or to be taken following the Closing Date with respect
to any Underwritten Certificates that are to be delivered through the facilities
of DTC shall include, if the context so permits, actions taken or to be taken
with respect to the interests in such Certificates as reflected on the books and
records of DTC.
4. Offering by Underwriters; Free Writing Prospectuses.
(a) It is understood that the Underwriters propose to offer the
Underwritten Certificates for sale to the public, including, without limitation,
in and from the State of New York, as set forth in the Prospectus Supplement. It
is further understood that the Company, in reliance upon an exemption from the
Attorney General of the State of New York to be granted pursuant to Policy
Statement 104 and 105, has not and will not file the offering pursuant to
Section 352-e of the General Business Law of the State of New York with respect
to the Underwritten Certificates.
(b) In connection with the offering of the Underwritten
Certificates, the Underwriters may each prepare and provide to prospective
investors Free Writing Prospectuses (as defined below), 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 Free Writing
Prospectuses, or portions thereof, in either Microsoft Word(R) or Microsoft
Excel(R) format and not in Adobe Acrobat(R) PDF format, except to the extent
that the Company, in its sole discretion, waives such requirements, subject to
the following conditions (to which such conditions each Underwriter agrees
(provided that no Underwriter is responsible for any breach of the following
conditions by any other Underwriter)):
(i) Unless preceded or accompanied by a prospectus satisfying
the requirements of Section 10(a) of the 1933 Act, the Underwriters shall
not convey or deliver any written communication to any person in
connection with the initial offering of the Underwritten Certificates,
unless such written communication (1) is made in reliance on Rule 134
under the 1933 Act, (2) constitutes a prospectus satisfying the
requirements of Rule 430B under the 1933 Act or (3) constitutes a Free
Writing Prospectus. The Underwriter shall not convey or deliver in
connection with the initial offering of the Underwritten Certificates any
"ABS informational and computational material," as defined in Item 1101(a)
of Regulation AB under the 1933 Act ("ABS Informational and Computational
Material"), in reliance upon Rules 167 and 426 under the 1933 Act.
(ii) The Underwriter shall deliver to the Company, no later
than two business days prior to the date of first use thereof, (a) any
Free Writing Prospectus prepared by or on behalf of the Underwriter that
contains any "issuer information," as defined in Rule 433(h) under the
1933 Act and footnote 271 of the Commission's Securities Offering Reform
Release No. 33-8591 ("Issuer Information") (which the parties hereto agree
includes, without limitation, Mortgage Loan Seller Covered Information),
and (b) any Free Writing Prospectus or portion thereof that contains only
a description of the final terms of the Underwritten Certificates.
Notwithstanding the foregoing, any Free Writing Prospectus that contains
only ABS Informational and Computational Materials may be delivered by the
Underwriter to the Company not later than the later of (a) two business
days prior to the due date for filing of the Prospectus pursuant to Rule
424(b) under the 1933 Act or (b) the date of first use of such Free
Writing Prospectus.
(iii) The Underwriter represents and warrants to the Company
that the Free Writing Prospectuses to be furnished to the Company by the
Underwriter pursuant to Section 4(c)(ii) will constitute all Free Writing
Prospectuses of the type described therein that were furnished to
prospective investors by the Underwriter in connection with its offer and
sale of the Underwritten Certificates.
(iv) The Underwriter represents and warrants to the Company
that each Free Writing Prospectus required to be provided by it to the
Company pursuant to Section 4(c)(ii) did not, when read together with all
other materials delivered to investors prior to the Time of Sale, as of
the Time of Sale and at the Closing Date will not, contain any untrue
statement of a material fact, or omit any material fact necessary to make
the statements contained therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the
Underwriter makes no representation to the extent such misstatements or
omissions were the result of any inaccurate Issuer Information supplied by
the Company or any Mortgage Loan Seller to the Underwriter, which
information was not corrected by Corrective Information subsequently
supplied by the Company or any Mortgage Loan Seller to the Underwriter
prior to the Time of Sale.
(v) The Company agrees to file with the Commission the
following:
(A) Any Issuer Free Writing Prospectus to the extent
required to be filed with the Commission by Rule 433 under the 1933
Act;
(B) Any Free Writing Prospectus or portion thereof
delivered by the Underwriter to the Company pursuant to Section
4(c)(ii); and
(C) Any Free Writing Prospectus for which the Company or
any person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a
person unaffiliated with the Company or any other offering
participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating communications.
(vi) Any Free Writing Prospectus required to be filed pursuant
to Section 4(c)(v) by the Company shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus, except
that:
(A) Any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the final
terms of the Underwritten Certificates shall be filed by the Company
with the Commission within two days of the later of the date such
final terms have been established for all classes of Underwritten
Certificates and the date of first use;
(B) Any Free Writing Prospectus or portion thereof
required to be filed that contains only ABS Informational and
Computational Material shall be filed by the Company with the
Commission not later than the later of the due date for filing the
final Prospectus relating to the Underwritten Certificates pursuant
to Rule 424(b) under the 1933 Act or two business days after the
first use of such Free Writing Prospectus;
(C) Any Free Writing Prospectus required to be filed
pursuant to Section 4(c)(v)(C) shall, if no payment has been made or
consideration has been given by or on behalf of the Company for the
Free Writing Prospectus or its dissemination, be filed by the
Company with the Commission not later than four business days after
the Company becomes aware of the publication, radio or television
broadcast or other dissemination of the Free Writing Prospectus; and
(D) The Company shall not be required to file (1) Issuer
Information contained in any Free Writing Prospectus of an
Underwriter or any other offering participant other than the
Company, if such information is included or incorporated by
reference in a prospectus or Free Writing Prospectus previously
filed with the Commission that relates to the offering of the
Underwritten Certificates, or (2) any Free Writing Prospectus or
portion thereof that contains a description of the Underwritten
Certificates or the offering of the Underwritten Certificates which
does not reflect the final terms thereof.
(vii) The Underwriter shall file with the Commission any Free
Writing Prospectus that is used or referred to by it and distributed by or
on behalf of the Underwriter in a manner reasonably designed to lead to
its broad, unrestricted dissemination not later than the date of the first
use of such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section 4(c)(vii),
the Underwriter shall file with the Commission any Free Writing Prospectus
for which the Underwriter or any person acting on its behalf provided,
authorized or approved information that is prepared and published or
disseminated by a person unaffiliated with the Company or any other
offering participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating written communications
and for which no payment was made or consideration given by or on behalf
of the Company or any other offering participant, not later than four
business days after the Underwriter becomes aware of the publication,
radio or television broadcast or other dissemination of the Free Writing
Prospectus.
(ix) Notwithstanding the provisions of Sections 4(c)(v) and
4(c)(vii), neither the Company nor the Underwriter shall be required to
file any Free Writing Prospectus that does not contain substantive changes
from or additions to a Free Writing Prospectus previously filed with the
Commission.
(x) The Company and the Underwriter each agree that any Free
Writing Prospectuses prepared by it shall contain the following legend:
The depositor has filed a registration statement (including a
prospectus) with 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 this offering. You may get
these documents for free 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 if you request it by calling toll-free
0-000-000-0000
(xi) The Company and the Underwriter agree to retain all Free
Writing Prospectuses that they have used and that are not required to be
filed pursuant to this Section 4 for a period of three years following the
initial bona fide offering of the Underwritten Certificates.
(xii) In the event that the Company becomes aware that, as of
the Time of Sale, any Issuer Free Writing Prospectus contains any untrue
statement of a material fact or omits 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 (a "Defective
Issuer Free Writing Prospectus"), the Company shall notify the
Underwriters thereof within one business day after discovery and the
Company shall, if requested by the Underwriters, prepare and deliver to
the Underwriters a Free Writing Prospectus that corrects the material
misstatement or omission in the Defective Issuer Free Writing Prospectus
(such corrected Issuer Free Writing Prospectus, a "Corrected Issuer Free
Writing Prospectus").
(A) In the event that the Underwriter becomes aware
that, with respect to any purchaser of an Underwritten Certificate,
any Free Writing Prospectus prepared by or on behalf of the
Underwriter (each, an "Underwriter Free Writing Prospectus") and
delivered to such purchaser 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, when
considered in conjunction with the Time of Sale Information
(together with the Defective Issuer Free Writing Prospectus, a
"Defective Free Writing Prospectus"), the Underwriter shall notify
the Company and each other Underwriter thereof within one business
day after discovery.
(B) The Underwriter shall, if requested by the Company:
(1) if the Defective Free Writing Prospectus was
an Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus which corrects the material misstatement in or
omission from the Defective Free Writing Prospectus (together
with a Corrected Issuer Free Writing Prospectus, a "Corrected
Free Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus
to each Underwriter and the Company so that the Underwriters
can each deliver the Corrected Free Writing Prospectus to
their respective purchasers of an Underwritten Certificate
which received the Defective Free Writing Prospectus prior to
entering into a contract of sale;
(3) if after the Time of Sale, notify such
purchaser in a prominent fashion that the prior agreement to
purchase Certificates has been terminated, and of the
purchaser's rights as a result of termination of such
agreement;
(4) if after the Time of Sale, provide such
purchaser with an opportunity to affirmatively agree to
purchase the Underwritten Certificates on the terms described
in the Corrected Free Writing Prospectus; and
(5) comply with any other requirements for
reformation of the original contract of sale described in
Section IV.2.c of Commission's Securities Offering Reform
Release No. 33-8591.
(C) With respect to this subsection (xii), each
Underwriter agrees that if the Company requests that an Underwriter
prepare a Corrected Free Writing Prospectus with respect to a
Defective Free Writing Prospectus that another Underwriter prepared,
such other Underwriter will prepare the Corrected Free Writing
Prospectus and will deliver the Corrected Free Writing Prospectus to
the Company and each Underwriter so that each Underwriter may
contact its respective purchasers.
(D) To the extent any Defective Free Writing Prospectus
was defective as a result of incorrect Issuer Information being
delivered to an Underwriter, the Company shall provide such
corrected Issuer Information upon request from the Underwriter. The
Company shall also notify the other Underwriters of such incorrect
Issuer Information, to the extent it is provided notice hereunder.
(xiii) The Underwriter covenants with the Company that after
the final Prospectus is available the Underwriter shall not distribute any
written information concerning the Underwritten Certificates to a
prospective purchaser of an Underwritten Certificate unless such
information is preceded or accompanied by the final Prospectus.
(ii) Each Underwriter further represents and warrants that it has
offered and sold Underwritten Certificates only to, or directed at, persons who:
(i) are outside the United Kingdom;
(ii) have professional experience in participating in
unregulated collective investment schemes; or
(iii) are persons falling within Article 22(2)(a) through (d)
of the Financial Services and Markets Act 2000 (Promotion of Collective
Investment Schemes) (Exemptions) Order 2001.
5. Covenants of the Company. The Company covenants and agrees with
the Underwriters that:
(a) The Company will not file any amendment to the Registration
Statement (other than by reason of Rule 429 under the 1933 Act) or any
supplement to the Base Prospectus relating to or affecting the Underwritten
Certificates, unless the Company has furnished a copy to you for your review a
reasonable time prior to filing, and will not file any such proposed amendment
or supplement to which you reasonably object. Subject to the foregoing sentence,
the Company will cause the Prospectus Supplement to be transmitted to the
Commission for filing pursuant to Rule 424 under the 1933 Act or will cause the
Prospectus Supplement to be filed with the Commission pursuant to said Rule 424.
The Company promptly will advise you or counsel for the Underwriters (i) when
the Prospectus Supplement shall have been filed or transmitted to the Commission
for filing pursuant to Rule 424, (ii) when any amendment to the Registration
Statement shall have become effective, (iii) of any request by the Commission to
amend the Registration Statement or supplement the Prospectus Supplement or for
any additional information in respect of the offering contemplated hereby, (iv)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or any post effective amendment thereto which
shall have become effective on or prior to the Closing Date or the institution
or threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Underwritten Certificates for sale in any jurisdiction or the institution
or threatening of any proceeding for that purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or suspension and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Underwritten
Certificates is required to be delivered under the 1933 Act, any event occurs as
a result of which the Prospectus, as then amended or supplemented, would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to amend
or supplement the Prospectus to comply with the 1933 Act or the rules and
regulations thereunder, the Company promptly will prepare and file with the
Commission, at the expense of the Company, subject to paragraph (a) of this
Section 5, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance and, if such amendment
or supplement is required to be contained in a post effective amendment to the
Registration Statement, the Company will use its best efforts to cause such
amendment to the Registration Statement to be made effective as soon as
possible.
(c) The Company will furnish to you and to counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date, and, upon request, to each other
Underwriter, each Issuer Free Writing Prospectus, a copy of the Registration
Statement (without exhibits thereto) and each such amendment and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the 1933
Act, as many copies of the Prospectus Supplement and the Base Prospectus and any
amendments and supplements thereto as you may reasonably request.
(d) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Underwritten Certificates for sale under the laws of such jurisdictions as you
may designate and will maintain such qualifications in effect so long as
required for the distribution of the Underwritten Certificates; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now subject to such service of process.
(e) The Company will pay, or cause to be paid, all costs and
expenses in connection with the transactions herein contemplated, including, but
not limited to, the fees and disbursements of its counsel; the costs and
expenses of printing (or otherwise reproducing) and delivering the Pooling and
Servicing Agreement and the Underwritten Certificates; the fees and
disbursements of accountants for the Company; the reasonable out of pocket costs
and expenses in connection with the qualification or exemption of the
Underwritten Certificates under state securities or "Blue Sky" laws, including
filing fees and reasonable fees and disbursements of counsel in connection
therewith, in connection with the preparation of any "Blue Sky" survey and in
connection with any determination of the eligibility of the Underwritten
Certificates for investment by institutional investors and the preparation of
any legal investment survey; the expenses of printing any such "Blue Sky" survey
and legal investment survey; the cost and expenses in connection with the
preparation, printing and filing of the Registration Statement (including
exhibits thereto), the Base Prospectus, each Issuer Free Writing Prospectus and
the Prospectus Supplement, the preparation and printing of this Agreement and
the delivery to the Underwriters of such copies of the Base Prospectus, each
Issuer Free Writing Prospectus and Prospectus Supplement as you may reasonably
request; the fees of the Rating Agencies that are rating the Underwritten
Certificates; and the reasonable fees and disbursements of counsel to the
Underwriters.
(f) To the extent that the Pooling and Servicing Agreement provides
that the Underwriters are to receive any notices or reports, or have any other
rights thereunder, the Company will enforce the rights of the Underwriters under
the Pooling and Servicing Agreement and will not consent to any amendment of the
Pooling and Servicing Agreement that would adversely affect such rights of the
Underwriters.
(g) The Company shall, as to itself, and the Company, or pursuant to
the Pooling and Servicing Agreement the Trustee, will be required to, as to the
Trust Fund, satisfy and comply with all reporting requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations
thereunder.
(h) The Company shall take all reasonable action necessary to enable
the Rating Agencies to provide their respective credit ratings of the
Underwritten Certificates as described in the Prospectus.
(i) The Company will, pursuant to reasonable procedures developed in
good faith, retain copies of each Issuer Free Writing Prospectus that is not
filed with the Commission in accordance with Rule 433 under the 1933 Act.
6. Conditions to the Obligations of the Underwriters. The obligation
of each Underwriter hereunder to purchase its allocated share of the
Underwritten Certificates shall be subject to: (i) the accuracy of the
representations and warranties on the part of the Company contained herein as of
the date hereof, as of the date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date, as of the date the
Prospectus Supplement or any supplement thereto is filed with the Commission and
as of the Closing Date; (ii) the accuracy of the statements of the Company made
in any certificates delivered pursuant to the provisions hereof; (iii) the
performance by the Company of its obligations hereunder; and (iv) the following
additional conditions:
(a) The Registration Statement shall have become effective and no
stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and not withdrawn and no
proceedings for that purpose shall have been instituted or, to the Company's
knowledge, threatened; and the Prospectus Supplement and each Issuer Free
Writing Prospectus shall have been filed or transmitted for filing with the
Commission in accordance with Rule 424 under the 1933 Act or, in the case of
each Issuer Free Writing Prospectus, to the extent required by Rule 433 under
the 1933 Act.
(b) You shall have received from Dechert LLP, counsel for the
Underwriters, a favorable opinion, dated the Closing Date, as to such matters
regarding the Underwritten Certificates as you may reasonably request.
(c) The Company shall have delivered to you a certificate of the
Company, signed by an authorized officer of the Company and dated the Closing
Date, to the effect that: (i) the representations and warranties of the Company
in this Agreement are true and correct in all material respects at and as of the
Closing Date with the same effect as if made on the Closing Date; and (ii) the
Company has in all material respects complied with all the agreements and
satisfied all the conditions on its part that are required hereby to be
performed or satisfied at or prior to the Closing Date; and Xxxxxxxx shall have
delivered to you a certificate of Xxxxxxxx, signed by an authorized officer of
Xxxxxxxx and dated the Closing Date, of the President, a Senior Vice President
or a Vice President of Wachovia, to the effect that: (i) the representations and
warranties of Wachovia in this Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on the
Closing Date; and (ii) Xxxxxxxx has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date.
(d) You shall have received (i) with respect to Xxxxxxxx, a
certificate of the Office of the Comptroller of the Currency and (ii) with
respect to the Company a good standing certificate from the Secretary of State
of the State of North Carolina, each dated not earlier than 30 days prior to the
Closing Date.
(e) (i) You shall have received from the Secretary or an Assistant
Secretary of the Company, in his individual capacity, a certificate, dated the
Closing Date, to the effect that: (x) each individual who, as an officer or
representative of the Company, signed this Agreement, or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures; and (y) no event (including, without limitation, any act or omission
on the part of the Company) has occurred since the date of the good standing
certificate referred to in Section 6(d) hereof which has affected the good
standing of the Company under the laws of the State of North Carolina. Such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an Assistant Secretary of the Company) of the certificate of
incorporation and by laws of the Company, as in effect on the Closing Date, and
of the resolutions of the Company and any required shareholder consent relating
to the transactions contemplated in this Agreement; and (ii) you shall have
received from the Secretary or an Assistant Secretary of Wachovia, in his
individual capacity, a certificate, dated the Closing Date, to the effect that:
(x) each individual who, as an officer or representative of Wachovia, signed
this Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures; and (y) no event (including,
without limitation, any act or omission on the part of Wachovia) has occurred
since the date of the certificate referred to in Section 6(d) hereof which has
affected the existence of Wachovia under the laws of the United States of
America. Such certificate shall be accompanied by true and complete copies
(certified as such by the Secretary or an Assistant Secretary of Wachovia) of
the articles of association and by-laws of Wachovia, as in effect on the Closing
Date, and of the resolutions of Wachovia and any required shareholder consent
relating to the transactions contemplated in this Agreement.
(f) You shall have received from Cadwalader Xxxxxxxxxx & Xxxx LLP,
special counsel for the Company, one or more favorable opinions, dated the
Closing Date and satisfactory in form and substance to you and counsel for the
Underwriters substantially to the effect that:
(i) The Company is a corporation in good standing under the
laws of the State of North Carolina and has the corporate power and
authority to enter into and perform its obligations under this Agreement.
(ii) Neither the sale of the Underwritten Certificates, nor
the consummation of any other of the transactions contemplated in or the
fulfillment of the terms of this Agreement, will conflict with or result
in a breach or violation of any term or provision of, or constitute a
default (or an event which with the passing of time or notification, or
both, would constitute a default) under, the articles of incorporation or
by laws of the Company, or, to the knowledge of such counsel, any
indenture or other agreement or instrument to which the Company is a party
or by which it is bound, or, to the knowledge of such counsel, any order
of any State of North Carolina or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company.
(iii) To the knowledge of such counsel, there are no actions,
proceedings or investigations pending before or threatened by any court,
administrative agency or other tribunal to which the Company is a party or
of which any of its properties is the subject (a) asserting the invalidity
of this Agreement, (b) seeking to prevent the consummation by the Company
of any of the transactions contemplated by this Agreement, as the case may
be or (c) which, if adversely determined, might materially and adversely
affect the performance by the Company of its obligations under, or the
validity or enforceability of, this Agreement;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company. Each of the Pooling and Servicing Agreement and
the Mortgage Loan Purchase Agreements has been duly authorized, executed
and delivered by the Company.
(v) No consent, approval, authorization or order of any state
or federal court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement except for those consents, approvals, authorizations or orders
that previously have been obtained, as may be required under federal or
state securities laws, and such real estate filings as may be required in
connection with the transfer of the Mortgage Loans and the other matters
contemplated under the Mortgage Loan Purchase Agreements.
(vi) The statements in the Time of Sale Information and the
Prospectus under the headings "ERISA CONSIDERATIONS" and "MATERIAL FEDERAL
INCOME TAX CONSEQUENCES", to the extent that they describe certain matters
of federal law or legal conclusions with respect thereto, provide a fair
and accurate summary of such matters and conclusions;
(vii) As described in the Prospectus Supplement and assuming
compliance with the provisions of the Pooling and Servicing Agreement, (a)
REMIC I and REMIC II will each qualify as a REMIC within the meaning of
Sections 860A through 860G (the "REMIC Provisions") of the Internal
Revenue Code of 1986, as amended (the "Code"); and (b) the portion of the
Trust Fund consisting of the Additional Interest (as such terms are
defined in the Pooling and Servicing Agreement) will be treated as a
grantor trust for federal income tax purposes under subpart E, Part I of
subchapter J of the Code;
(viii) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended, and the
Trust Fund created by the Pooling and Servicing Agreement is not required
to be registered under the Investment Company Act;
(ix) Each of the Mortgage Loan Purchase Agreements and the
Pooling and Servicing Agreement constitutes the legal, valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, liquidation, receivership, moratorium, reorganization and
similar laws affecting creditors' rights generally, and general principles
of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law), and except that: (a) provisions purporting to waive or
limit rights to trial by jury, oral amendments to written agreements or
rights of set off, (b) provisions relating to submission to jurisdiction,
venue or service of process, (c) interest on interest provisions or (d)
severability clauses may be limited by applicable law or considerations of
public policy;
(x) The Registration Statement is effective under the 1933 Act
and, to such counsel's knowledge, no stop order with respect thereto has
been issued by the Commission;
(xi) The Registration Statement, as of its effective date, and
the Prospectus, as of the date thereof (in each case, with the exception
of any information incorporated by reference therein, any numerical,
financial, statistical and quantitative data included therein, any
Mortgage Loan Seller Covered Information, any Master Servicer Covered
Information, any Special Servicer Covered Information and any Trustee
Covered Information), appeared on their respective faces to be
appropriately responsive in all material respects to the requirements of
the 1933 Act and the rules and regulations thereunder applicable to such
documents as of the relevant date;
(xii) The statements contained in the Time of Sale Information
and the Prospectus Supplement under the heading "Description of the
Certificates", insofar as such statements purport to summarize material
terms of the Certificates, are correct in all material respects; and
(xiii) The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for in accordance with the Underwriting Agreement will
be validly issued and outstanding and entitled to the benefits provided by
the Pooling and Servicing Agreement.
Such opinions may express their reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto. Such opinion may be qualified as an opinion
only on the laws of the State of New York and the federal law of the United
States.
In one or more separate letters addressed only to the Underwriters,
Cadwalader, Xxxxxxxxxx & Xxxx LLP shall additionally state that, based on
conferences and telephone conversations with representatives of Wachovia,
Nomura, Artesia, the Underwriters, the Company, the Trustee, the Master
Servicer, the Special Servicer and their respective counsel, and (with limited
exception) without having reviewed any of the mortgage notes, mortgages or other
documents relating to the Mortgage Loans or made any inquiry of any originator
of any Mortgage Loan, nothing has come to such counsel's attention that would
lead it to believe that (i) the Prospectus (other than any financial, numerical,
statistical or quantitative information included therein, any Mortgage Loan
Seller Covered Information, any Master Servicer Covered Information, any Special
Servicer Covered Information and any Trustee Covered Information), at the date
of the Prospectus Supplement or at the Closing Date, contained or contains any
untrue statement of a material fact or omitted or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (ii) the Time of Sale
Information (other than any financial, numerical, statistical or quantitative
information included therein, any Mortgage Loan Seller Covered Information, any
Master Servicer Covered Information, any Special Servicer Covered Information
and any Trustee Covered Information), at the Time of Sale, contained or contains
any untrue statement of a material fact or omitted or omits to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading or (iii) the
Registration Statement (other than with respect to any exhibits filed therewith
or any information incorporated by reference), at its effective date, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
(g) You shall have received from Xxxx X. Xxxxxxxx, counsel for
Xxxxxxxx, a favorable opinion, dated the Closing Date and satisfactory in form
and substance to you and counsel for the Underwriters, to the effect that:
(i) Wachovia is a national banking association validly
existing under the laws of the United States of America and has the
corporate power and authority to enter into and perform its obligations
under this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by Xxxxxxxx.
(iii) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is required for the
consummation by Wachovia of the transactions contemplated by this
Agreement except for those consents, approvals, authorizations or orders
that previously have been obtained, as may be required under federal or
state securities laws, and such real estate filings as may be required in
connection with the transfer of the Mortgage Loans and the other matters
contemplated under the Mortgage Loan Purchase Agreements.
(iv) The fulfillment of the terms of this Agreement will not
conflict with or result in a breach or violation of any term or provision
of, or constitute a default (or an event which with the passing of time or
notification, or both, would constitute a default) under, the articles of
association or by laws of Wachovia or, to such counsel's knowledge, any
indenture or other agreement or instrument to which Wachovia is a party or
by which it is bound, or to such counsel's knowledge, any order of any
federal court, regulatory body, administrative agency or governmental body
having jurisdiction over Wachovia.
(v) To the knowledge of such counsel, there are no actions,
proceedings or investigations pending before or threatened by any court,
administrative agency or other tribunal to which Wachovia is a party or of
which any of its properties is the subject (a) which, if adversely
determined, would have a material adverse effect on the business or
financial condition of Wachovia, (b) asserting the invalidity of this
Agreement, (c) seeking to prevent the consummation by Wachovia of any of
the transactions contemplated by this Agreement or (d) which, if adversely
determined, might materially and adversely affect the performance by
Wachovia of its obligations under, or the validity or enforceability of
this Agreement.
(h) You shall have received from KPMG LLP, certified public
accountants, letters satisfactory in form and substance to you and counsel for
the Underwriters, to the following effect:
(i) they have performed certain specified procedures as a result of
which they have determined that the information of an accounting, financial or
statistical nature set forth in each Issuer Free Writing Prospectus and the
Prospectus Supplement under the captions "SUMMARY OF PROSPECTUS SUPPLEMENT",
"DESCRIPTION OF THE MORTGAGE POOL" and "YIELD AND MATURITY CONSIDERATIONS" and
on Annex A to each of the Prospectus Supplement and the Issuer Free Writing
Prospectus dated February 21, 2006, as supplemented by that certain free writing
prospectus dated February 23, 2006 agrees with the Master Tape prepared by or on
behalf of the Mortgage Loan Sellers, unless non-material deviations are
otherwise noted in such letter; and
(i) they have compared the data contained in the Master Tape
referred to in the immediately preceding clause (i) to information
contained in an agreed upon sampling of the Mortgage Loan files and in
such other sources as shall be specified by them, and found such data and
information to be in agreement in all material respects, unless
non-material deviations are otherwise noted in such letter.
(ii) You shall have received written confirmation from the
Rating Agencies that the ratings assigned to the Underwritten Certificates
on the Closing Date are as described on Schedule I hereto and that, as of
the Closing Date, no notice has been given of (i) any intended or possible
downgrading or (ii) any review or possible changes in such ratings.
(j) You shall have received from the Secretary or an Assistant
Secretary of the Trustee, in his individual capacity, a certificate, dated the
Closing Date, to the effect that the information under the heading "Description
of the Certificates--The Trustee" in the Issuer Free Writing Prospectuses and
the Prospectus Supplement is true and correct in all material respects.
(k) You shall have received from the Trustee a signed Trustee
Indemnification Agreement, dated as of the date hereof, in form and substance
satisfactory to the Underwriters (the "Trustee Indemnification Agreement").
(l) You shall have received from Xxxxxxx Xxxxxxxxx Xxxxxxx &
Xxxxxxx, L.L.P., counsel for the Trustee, a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriters and counsel for the
Underwriters.
(m) You shall have received from the Secretary or an Assistant
Secretary of the Master Servicer, in his individual capacity, a certificate,
dated the Closing Date, to the effect that the information relating to the
Master Servicer under the heading "SERVICING OF THE MORTGAGE LOANS--The Master
Servicer and the Special Servicer" in the Issuer Free Writing Prospectuses and
the Prospectus Supplement is true and correct in all material respects.
(n) You shall have received from the Master Servicer a signed Master
Servicer Indemnification Agreement, dated as of the date hereof, in form and
substance satisfactory to the Underwriters (the "Master Servicer Indemnification
Agreement").
(o) You shall have received from Cadwalader, Xxxxxxxxxx & Xxxx LLP,
counsel for the Master Servicer, a favorable opinion, dated the Closing Date, in
form and substance satisfactory to the Underwriters and counsel for the
Underwriters.
(p) You shall have received from the Secretary or an Assistant
Secretary of the Special Servicer, in his individual capacity, a certificate,
dated the Closing Date, to the effect that the information relating to the
Special Servicer under the heading "SERVICING OF THE MORTGAGE LOANS--The Master
Servicer and the Special Servicer" in the Issuer Free Writing Prospectuses and
the Prospectus Supplement, is true and correct in all material respects.
(q) You shall have received from the Special Servicer a signed
Special Servicer Indemnification Agreement, dated as of the date hereof, in form
and substance satisfactory to the Underwriters (the "Special Servicer
Indemnification Agreement").
(r) You shall have received from Bilzin Xxxxxxx Xxxxx Price &
Xxxxxxx LLP, counsel for the Special Servicer, a favorable opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriters and counsel
for the Underwriters.
(s) You shall have received from Xxxx X. Xxxxxxxx, counsel for
Xxxxxxxx, as a Mortgage Loan Seller and Master Servicer, a favorable opinion,
dated the Closing Date, in form and substance satisfactory to the Underwriters
and counsel for the Underwriters.
(t) You shall have received copies of any opinions from Xxxxxxxxxx,
Xxxxxxxxxx & Xxxx LLP, special counsel to the Company and Wachovia and from
Sidley Austin LLP, special counsel for Artesia and Nomura, supplied to the
Rating Agencies relating to certain matters with respect to the Underwritten
Certificates, the transfer of the Mortgage Loans and any other matters related
thereto. Any such opinions shall be dated the Closing Date and addressed to the
Underwriters.
(u) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be satisfactory in
form and substance to you and counsel for the Underwriters, and you and such
counsel shall have received such additional information, certificates and
documents as you or they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates referred to above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to you and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by you. Notice of such cancellation shall be given to
the Company in writing, or by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Underwritten Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 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 and
Wachovia, jointly and severally, will reimburse the Underwriters severally, upon
demand, for all out of pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Underwritten Certificates.
8. Indemnification.
(a) The Company and Wachovia, jointly and severally, agree to
indemnify and hold harmless each Underwriter, its officers and directors and
each person, if any, who controls such Underwriter within the meaning of Section
15 of the 1933 Act and Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of (A) any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Base Prospectus or the Prospectus
Supplement (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading or (B) any untrue statement or alleged untrue
statement of a material fact contained in any Time of Sale Information,
any Issuer Free Writing Prospectus or any Issuer Information contained in
any Underwriter Free Writing Prospectus, or the omission or alleged
omission to state a material fact required to make the statements therein,
in light of the circumstances under which they were made, not misleading,
which was not corrected by Corrective Information subsequently supplied by
the Company to the Underwriter at any time prior to the Time of Sale, or
(C) any breach of the representation and warranty in Section 1(a)(xvi);
provided that, in the case of clauses (A) and (B) above, the indemnity
provided by this Section 8(a) shall not apply to any loss, liability,
claim, damage or expense to the extent any such untrue statement or
alleged untrue statement or omission or alleged omission arises out of or
is based upon an untrue statement or omission with respect to information
with respect to which a Mortgage Loan Seller provides indemnification
pursuant to Section 7 of the related Mortgage Loan Purchase Agreement (the
"Mortgage Loan Seller Covered Information"); provided, further, that, the
indemnification provided by this Section 8 shall not apply to the extent
that such untrue statement or omission of a material fact was made as a
result of an error in the manipulation of, or in any calculations based
upon, or in any aggregation of the information regarding the Mortgage
Loans, the related Mortgagors and/or the related Mortgaged Properties set
forth in the Master Tape or Annex A to the Prospectus Supplement, to the
extent (i) such information was materially incorrect in the Master Tape or
such Annex A, as applicable, including without limitation the aggregation
of such information relating to the Mortgage Loans in the Trust Fund or
the information provided by the Mortgage Loan Sellers, and (ii) such loss,
liability, claim, damage or expense would be subject to the provisions of
Section 7 of any Mortgage Loan Purchase Agreement; provided, further, that
the indemnification provided by this Section 8 shall not apply to the
Mortgage Loan Seller Covered Information, the Master Servicer Covered
Information, the Special Servicer Covered Information or the Trustee
Covered Information;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is effected
with the written consent of the Company or as otherwise contemplated by
Section 8(c) hereof; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such
Underwriter), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above; provided, however, that the indemnity
provided by this Section 8(a) shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement
or omission or alleged untrue statement or omission made in reliance upon
and in conformity with written information (as specified in Section 8(b)
below) furnished to the Company by any Underwriter expressly for use in
the Registration Statement (or any amendment thereto) or in the Base
Prospectus or the Prospectus Supplement (or any amendment or supplement
thereto).
(b) Each Underwriter, severally but not jointly, agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto), any
Issuer Free Writing Prospectus, any Time of Sale Information, the Base
Prospectus or the Prospectus Supplement (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter expressly for use in the Registration Statement (or
any amendment thereto), any Issuer Free Writing Prospectus, any Time of Sale
Information, the Base Prospectus or the Prospectus Supplement (or any amendment
or supplement thereto) (collectively, "Underwriter Information"); provided, that
no such material misstatement or omission arises from an error or omission in
information relating to the underlying data regarding the Mortgage Loans or the
related Mortgagors or Mortgaged Properties provided by the Company or any
Mortgage Loan Seller to such Underwriter. In addition, each Underwriter,
severally but not jointly, shall indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, arising out of any untrue
statements or alleged untrue statements of a material fact, or omissions or
alleged omissions to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, when read together with all other materials delivered to investors
prior to the Time of Sale in any Underwriter Free Writing Prospectus delivered
to investors prior to the Time of Sale, provided, that no Underwriter shall be
obligated to so indemnify and hold harmless to the extent such Liabilities are
caused by a misstatement or omission resulting from an error or omission in the
Issuer Information supplied by the Company or any Mortgage Loan Seller to the
Underwriter which was not corrected by Corrective Information subsequently
supplied by the Company or any Mortgage Loan Seller to the Underwriter at any
time prior to the Time of Sale. Notwithstanding the foregoing, the indemnity in
clause (ii) of the immediately preceding sentence will apply only if such
misstatement or omission was not also a misstatement or omission in the
Prospectus. It is hereby acknowledged that (i) the statements set forth in the
first, second, third, fourth, sixth and seventh sentences of the penultimate
paragraph on the cover of the Prospectus Supplement, and (ii) the statements in
the second paragraph and the first sentence of the sixth paragraph under the
caption "METHOD OF DISTRIBUTION" in the Prospectus Supplement, constitute the
only written information furnished to the Company by the Underwriters expressly
for use in the Registration Statement (or any amendment thereto) or in the Base
Prospectus, the Issuer Free Writing Prospectuses or the Prospectus Supplement
(or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability under Section 8(a) or Section 8(b) hereof (unless the indemnifying
party is materially prejudiced by such failure) or any liability that it may
have, otherwise than on account of the indemnity provided by this Section 8. An
indemnifying party may participate at its own expense in the defense of any such
action and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have agreed to the retention of such
counsel, or (ii) the indemnifying party shall not have assumed the defense of
such action, with counsel satisfactory to the indemnified party, within a
reasonable period following the indemnifying party's receiving notice of such
action, or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. In no event shall
the indemnifying party or parties be liable for fees and expenses of more than
one counsel (or, in the event the Company or Wachovia is the indemnifying party,
one counsel for each Underwriter) (in addition to any local counsel) separate
from its or their own counsel for all indemnified parties in connection with any
one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. Unless it shall
assume the defense of any proceeding, an indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent (which
consent shall not be unreasonably withheld) but, if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party shall
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel or any other
expenses for which the indemnifying party is obligated under this subsection,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. If an indemnifying party assumes the defense of any proceeding, it
shall be entitled to settle such proceeding with the consent of the indemnified
party or, if such settlement provides for an unconditional release of the
indemnified party in connection with all matters relating to the proceeding that
have been asserted against the indemnified party in such proceeding by the other
parties to such settlement, which release does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party without the consent of the indemnified party.
(d) The indemnity provided by this Section 8 shall remain operative
and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by the Company, the Underwriters, any of
their respective directors or officers, or any person controlling the Company or
the Underwriters, and (iii) acceptance of and payment for any of the
Underwritten Certificates.
(e) Each Underwriter, severally but not jointly, will indemnify and
hold harmless any other Underwriter and each person, if any, who controls such
Underwriter within the meaning of either the 1933 Act or the 1934 Act
(collectively, the "Non-Indemnifying Underwriter") from and against any and all
loss, liability, claim, damage and expense whatsoever, as incurred, that arise
out of or are based upon (i) any untrue statement or alleged untrue statement of
a material fact or the omission or alleged omission to state a material fact
necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading at the Time of Sale, contained in any
Free Writing Prospectus prepared by, or on behalf of, or used or referred to by,
such Indemnifying Underwriter, when read together with other materials delivered
to investors prior to the Time of Sale or (ii) the failure of such indemnifying
Underwriter, or any member of its selling group, to comply with any provision of
Section 4(c) hereof, or (iii) any untrue statement or alleged untrue statement
of a material fact or omission or alleged omission of a material fact relating
to the information furnished to the Company by such Underwriter for which such
Underwriter is required to indemnify the Company under Section 8(b) above, and
agrees to reimburse each such Non-Indemnifying Underwriter, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, liability, claim, damage or expense;
provided, that the indemnity provided by this Section 8(e) shall not apply to
the extent that such indemnified Underwriter is entitled under any Mortgage Loan
Purchase Agreement to seek indemnity for such loss, liability, claim, damage or
expense from a Mortgage Loan Seller.
The indemnity provided by this Section 8 will be in addition to any
liability that any Underwriter, the Company or Wachovia may otherwise have.
9. Contribution.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity provided by Section 8 hereof is for any
reason held to be unenforceable by the indemnified parties although applicable
in accordance with its terms, or if such indemnification provided for in Section
8 hereof is insufficient in respect of any losses, liabilities, claims or
damages referred to therein, the Company and Wachovia, jointly and severally,
and the Underwriters, severally, shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by the
indemnity provided by Section 8 hereof incurred by the Company and the
Underwriters, as incurred, (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company and Wachovia on the one hand and
each Underwriter on the other from the offering of the Underwritten Certificates
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and Wachovia on the one hand and of each Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations (taking into account the parties' relative knowledge
and access to information concerning the matter with respect to which the claim
was asserted, the opportunity to correct and prevent any statement or omission
or failure to comply, and any other equitable considerations appropriate under
the circumstances). The relative benefits received by the Company and Wachovia
on the one hand and the Underwriters on the other shall be deemed to be in the
same respective portions as the net proceeds (before deducting expenses)
received by the Company from the sale of the Underwritten Certificates and the
total underwriting discounts and commissions and other fees received by the
Underwriters in connection therewith bear to the aggregate offering price of the
Underwritten Certificates. The relative fault of the Company and Wachovia on the
one hand and of each Underwriter on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and Wachovia or by the
Underwriters, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
Notwithstanding the foregoing, no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation; and no Underwriter shall be obligated to contribute more than
its share of underwriting discounts and commissions and other fees pertaining to
the Underwritten Certificates less any damages otherwise paid by such
Underwriter with respect to such loss, liability, claim, damage or expense. It
is hereby acknowledged that the respective Underwriters' obligations under this
Section 9 shall be several and not joint. For purposes of this Section, each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's officers and
directors, shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
(b) The parties hereto agree that it would not be just and equitable
if contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take account of the considerations
referred to in subsection (a) above. The amount paid or payable by an
indemnified party as a result of the losses, liabilities, claims or damages
referred to in Section 8 hereof or this Section 9 shall be deemed to include any
legal fees and disbursements or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such claim
except where the indemnified party is required to bear such expenses, which
expenses the indemnifying party shall pay as and when incurred, at the request
of the indemnified party, to the extent that it is reasonable to believe that
the indemnifying party will be ultimately obligated to pay such expenses. In the
event that any expenses so paid by the indemnifying party are subsequently
determined to not be required to be borne by the indemnifying party hereunder,
the party which received such payment shall promptly refund the amount so paid
to the party which made such payment. The remedies provided for in Section 8
hereof and this Section 9 are not exclusive and shall not limit any rights or
remedies that may otherwise be available to any indemnified party at law or in
equity.
(c) The contribution agreements contained in this Section 9 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the Underwriters,
any of their respective directors or officers, or any person controlling the
Company or the Underwriters, and (iii) acceptance of and payment for any of the
Underwritten Certificates.
10. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Underwritten Certificates agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally (in the respective proportions which the portion of the Underwritten
Certificates set forth opposite their names in Schedule II hereto bears to the
aggregate amount of Underwritten Certificates set forth opposite the names of
all the remaining Underwriters) to purchase the Underwritten Certificates that
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, that no Underwriter shall be obligated under this Section 10 to
purchase Certificates of a Class that it is not otherwise obligated to purchase
under this Agreement, and provided, however, that in the event that the amount
of Underwritten Certificates that the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate principal amount
of Underwritten Certificates set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Underwritten Certificates, and if such
nondefaulting Underwriters do not purchase all of the Underwritten Certificates,
this Agreement will terminate without liability to any nondefaulting Underwriter
or the Company, except as provided in Section 11 or Section 12 hereof. In the
event of a default by any Underwriter as set forth in this Section 10, the
Closing Date for the Underwritten Certificates shall be postponed for such
period, not exceeding ten business days, as you shall determine in order that
the required changes in the Registration Statement and the Prospectus Supplement
or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company and Wachovia submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter, or by or on behalf
of the Company and Wachovia, or by or on behalf of any of the controlling
persons and officers and directors referred to in Sections 8 and 9 hereof, and
shall survive delivery of the Underwritten Certificates to the Underwriters.
12. Termination of Agreement; Survival.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company or of Wachovia
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any outbreak of hostilities or escalation thereof or other calamity or
crisis the effect of which is such as to make it, in the reasonable judgment of
any Underwriter, impracticable or inadvisable to market the Underwritten
Certificates or to enforce contracts for the sale of the Underwritten
Certificates, or (iii) if trading in any securities of the Company or of
Wachovia has been suspended or limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or on the Nasdaq National Market has been suspended or limited,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) if a banking moratorium has been
declared by either federal or New York authorities, or (v) a material disruption
in securities, settlement, payments or clearance services in the United States
or other relevant jurisdiction shall have occurred.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
as provided in Section 11 or Section 12(c) hereof.
(c) The provisions of Section 5(e) hereof regarding the payment of
costs and expenses and the provisions of Sections 8 and 9 hereof shall survive
the termination of this Agreement, whether such termination is pursuant to this
Section 12 or otherwise.
13. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notice to Wachovia Securities shall
be directed to it at Wachovia Capital Markets, LLC, 000 Xxxxx Xxxxxxx Xxxxxx,
Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0630, Attention: Xxxxxxx
Xxxxxxxx, with a copy to Xxxx X. Xxxxxxxx at 000 Xxxxx Xxxxxxx Xxxxxx, Xxx
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxxxxxxxx, XX 00000-0630; notice to Nomura
Securities shall be directed to Nomura Securities International, Inc., 2 World
Financial Center, Building B, New York, New York 10281, Attention: Xxxxx
XxXxxxx; notice to Banc of America Securities LLC shall be directed to it at 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-0 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxx Xxxxxxx; notice to Deutsche Bank shall be directed to it at Deutsche Bank
Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxx, notice to Xxxxxxx Xxxxx shall be directed to Xxxxxxx, Xxxxx & Co., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx Xxxxxx; notice to XX
Xxxxxx shall be directed to X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: CMBS Trading, with a copy to Xxxxxx Xxxxx at
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; notice to Wachovia shall
be directed to it at Wachovia Bank, National Association, 000 Xxxxx Xxxxxxx
Xxxxxx, Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0166, Attention:
Xx. Xxxxxxx Xxxxxxxx, and notice to the Company shall be directed to it at
Wachovia Commercial Mortgage Securities, Inc., 000 Xxxxx Xxxxxxx Xxxxxx, Xxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0166, Attention: President;
with copies in the case of the Company and Wachovia to Xxxx X. Xxxxxxxx at 000
Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000-0630; or such other address as may hereafter be furnished by the
Underwriters, Wachovia or the Company to the other such parties in writing.
14. Parties. This Agreement shall inure to the benefit of and be
binding upon each of the Underwriters, the Company and Wachovia and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and Wachovia and their respective successors
and the controlling persons and officers and directors referred to in Sections 8
and 9 hereof and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters, the
Company and Xxxxxxxx and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Underwritten Certificates from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
15. Applicable Law; Counterparts. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely in said State. This Agreement may
be executed in any number of counterparts, each of which shall for all purposes
be deemed to be an original and all of which shall together constitute but one
and the same instrument. No amendment of any provision of this Agreement shall
be effective unless it is in writing and signed by the parties hereto.
16. Obligations Solely Contractual in Nature; No Fiduciary
Relationship. The Company acknowledges and agrees that the responsibility to the
Company of the Underwriters pursuant to this Agreement is solely contractual in
nature and that none of the Underwriters or their affiliates will be acting in a
fiduciary or advisory capacity, or will otherwise owe any fiduciary or advisory
duty, to the Company pursuant to this Agreement in connection with the offering
of the Underwritten Certificates and the other transactions contemplated by this
Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, Wachovia and the several Underwriters.
Very truly yours,
WACHOVIA COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx, XX
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx, XX
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ X. Xxxxx Xxxx, Jr.
--------------------------------------
Name: X. Xxxxx Xxxx, Jr.
Title: Associate
[Signature Page to Underwriting Agreement]
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ X. Xxxxx Xxxx, Jr.
--------------------------------------
Name: X. Xxxxx Xxxx, Jr.
Title: Associate
NOMURA SECURITIES INTERNATIONAL, INC.
By: /s/ X. Xxxxx XxXxxxx
--------------------------------------
Name: X. Xxxxx XxXxxxx
Title: Managing Director
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxxxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxxxxxx Xxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
[Signatures Continue on Following Page]
[Signature Page to Underwriting Agreement]
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxxxx, Xxxxx & Co.
--------------------------------------
Xxxxxxx, Xxxxx & Co.
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxx X. Xxx
--------------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
[Signature Page to Underwriting Agreement]
ANNEX A
Free Writing Prospectuses
1. Current Report on Form FWP, dated February 3, 2006, of the Depositor
enclosing collateral information and identified with SEC Accession Number
0000914121-06-000224.
2. Current Report on Form FWP, dated February 12, 2006, of the Depositor
enclosing the Structural and Collateral Information and identified with
SEC Accession Number 0000950136-06-000939.
3. Current Report on Form FWP, dated February 13, 2006, of the Depositor
relating to the issuance and sale of the publicly-offered Certificates and
identified with SEC Accession Number 0000950136-06-001040.
4. Current Report on Form FWP, dated February 16, 2006, of the Depositor
enclosing structural and collateral information and identified with SEC
Accession Number 0000914121-06-000352.
5. Current Report on Form FWP, dated February 17, 2006, of the Depositor
enclosing structural and collateral information and identified with SEC
Accession Number 0000914121-06-000357.
6. Current Report on Form FWP, dated February 17, 2006, of the Depositor
enclosing structural and collateral information and identified with SEC
Accession Number 0000914121-06-000372.
7. Current Report on Form FWP, dated February 21, 2006, of the Depositor
enclosing the Preliminary Prospectus and identified with SEC Accession
Number 0000950136-06-001178.
8. Current Report on Form FWP, dated February 23, 2006, of the Depositor
enclosing the structural information and identified with SEC Accession
Number 0000914121-06-000404.
9. Current Report on Form FWP, dated February 24, 2006, of the Depositor
enclosing the structural information and identified with SEC Accession
Number 0000914121-06-000423.
SCHEDULE I
Underwriting Agreement dated February 24, 2006:
As used in this Schedule I, the term "Registration Statement" refers to
registration statement No. 333-127668 filed by the Company on Form S-3 and
declared effective on August 31, 2005. The term "Base Prospectus" refers to the
form of prospectus in the Registration Statement or such later form as most
recently filed by the Company pursuant to Rule 424(b) under the Securities Act
of 1933, as amended. The term "Prospectus Supplement" refers to the supplement
dated February 24, 2006, to the Base Prospectus, relating to the mortgage
pass-through certificates being sold pursuant to the Underwriting Agreement (the
"Underwritten Certificates").
Mortgage Pool:
Three Hundred and Five (305) commercial and multifamily mortgage loans, having
an aggregate principal balance, after giving effect to payments of principal due
on or before the Cut-Off Date, of $4,229,859,030 as described in the Prospectus
Supplement, and otherwise complying in all material respects with the
description thereof set forth in the Prospectus Supplement.
Title, Purchase Price and Description of Underwritten Certificates:
Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates Series 2006-C23, Class A-1, Class A-2, Class A-3, Class A-PB, Class
A-4, Class A-5, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D,
Class E and Class F.
--------------------------------------------------------------------------------
Closing Date
Aggregate Initial Purchase
Certificate Pass-Through Price
Designation Principal Balance Rate Rating* Percentage
--------------------------------------------------------------------------------
Class A-1 $ 105,862,000 5.203% AAA/Aaa %
--------------------------------------------------------------------------------
Class A-2 $ 137,307,000 5.416% AAA/Aaa %
--------------------------------------------------------------------------------
Class A-3 $ 62,700,000 5.496% AAA/Aaa %
--------------------------------------------------------------------------------
Class A-PB $ 252,071,000 5.446% AAA/Aaa %
--------------------------------------------------------------------------------
Class A-4 $ 1,280,716,000 5.418% AAA/Aaa %
--------------------------------------------------------------------------------
Class A-5 $ 500,000,000 5.416% AAA/Aaa %
--------------------------------------------------------------------------------
Class A-1A $ 622,245,000 5.422% AAA/Aaa %
--------------------------------------------------------------------------------
Class A-M $ 422,986,000 5.466% AAA/Aaa %
--------------------------------------------------------------------------------
Class A-J $ 274,941,000 5.515% AAA/Aaa %
--------------------------------------------------------------------------------
Class B $ 37,011,000 5.646% AA+/Aa1 %
--------------------------------------------------------------------------------
Class C $ 52,873,000 5.666% AA/Aa2 %
--------------------------------------------------------------------------------
Class D $ 37,011,000 5.706% AA-/Aa3 %
--------------------------------------------------------------------------------
Class E $ 31,724,000 5.736% A+/A1 %
--------------------------------------------------------------------------------
Class F $ 42,299,000 5.736% A/A2 %
--------------------------------------------------------------------------------
*By each of Standard & Poor's Ratings Service, a division of The McGraw Hill
Companies, Inc. and Xxxxx'x Investors Service, Inc.
Credit Support and Other Terms and Conditions of the Underwritten Certificates:
As described in the Prospectus Supplement.
Closing Date and Location: 10:00 a.m. (New York City time) on March 7, 2006 at
the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Charlotte, North Carolina;
except that delivery of the Underwritten Certificates shall be made through the
facilities of The Depository Trust Company.
Initial Public Offering Price: The Underwritten Certificates will be offered to
the public in negotiated transactions or otherwise at varying prices to be
determined at the Time of Sale.
SCHEDULE II
Underwriting Agreement dated February 24, 2006.
Approximate Aggregate Principal Amount of each Class of Certificates to be
purchased by:
Wachovia Capital Markets, LLC
---------------------------------
Class A-1 $83,401,139
---------------------------------
Class A-2 $108,174,418
---------------------------------
Class A-3 $49,396,870
---------------------------------
Class A-PB $198,588,809
---------------------------------
Class A-4 $930,202,143
---------------------------------
Class A-5 $393,914,431
---------------------------------
Class A-1A $490,222,571
---------------------------------
Class A-M $333,240,579
---------------------------------
Class A-J $216,606,455
---------------------------------
Class B $29,158,334
---------------------------------
Class C $41,654,875
---------------------------------
Class D $29,158,334
---------------------------------
Class E $24,993,083
---------------------------------
Class F $33,324,373
---------------------------------
Nomura Securities International, Inc.
---------------------------------
Class A-1 $22,460,861
---------------------------------
Class A-2 $29,132,582
---------------------------------
Class A-3 $13,303,130
---------------------------------
Class A-PB $53,482,191
---------------------------------
Class A-4 $250,513,857
---------------------------------
Class A-5 $106,085,569
---------------------------------
Class A-1A $132,022,429
---------------------------------
Class A-M $89,745,421
---------------------------------
Class A-J $58,334,545
---------------------------------
Class B $7,852,666
---------------------------------
Class C $11,218,125
---------------------------------
Class D $7,852,666
---------------------------------
Class E $6,730,917
---------------------------------
Class F $8,974,627
---------------------------------
Banc of America Securities LLC
---------------------------------
Class A-1 $0
---------------------------------
Class A-2 $0
---------------------------------
Class A-3 $0
---------------------------------
Class A-PB $0
---------------------------------
Class A-4 $25,000,000
---------------------------------
Class A-5 $0
---------------------------------
Class A-1A $0
---------------------------------
Class A-M $0
---------------------------------
Class A-J $0
---------------------------------
Class B $0
---------------------------------
Class C $0
---------------------------------
Class D $0
---------------------------------
Class E $0
---------------------------------
Class F $0
---------------------------------
Deutsche Bank Securities Inc.
---------------------------------
Class A-1 $0
---------------------------------
Class A-2 $0
---------------------------------
Class A-3 $0
---------------------------------
Class A-PB $0
---------------------------------
Class A-4 $25,000,000
---------------------------------
Class A-5 $0
---------------------------------
Class A-1A $0
---------------------------------
Class A-M $0
---------------------------------
Class A-J $0
---------------------------------
Class B $0
---------------------------------
Class C $0
---------------------------------
Class D $0
---------------------------------
Class E $0
---------------------------------
Class F $0
---------------------------------
Xxxxxxx, Xxxxx & Co.
---------------------------------
Class A-1 $0
---------------------------------
Class A-2 $0
---------------------------------
Class A-3 $0
---------------------------------
Class A-PB $0
---------------------------------
Class A-4 $25,000,000
---------------------------------
Class A-5 $0
---------------------------------
Class A-1A $0
---------------------------------
Class A-M $0
---------------------------------
Class A-J $0
---------------------------------
Class B $0
---------------------------------
Class C $0
---------------------------------
Class D $0
---------------------------------
Class E $0
---------------------------------
Class F $0
---------------------------------
X.X. Xxxxxx Securities Inc.
---------------------------------
Class A-1 $0
---------------------------------
Class A-2 $0
---------------------------------
Class A-3 $0
---------------------------------
Class A-PB $0
---------------------------------
Class A-4 $25,000,000
---------------------------------
Class A-5 $0
---------------------------------
Class A-1A $0
---------------------------------
Class A-M $0
---------------------------------
Class A-J $0
---------------------------------
Class B $0
---------------------------------
Class C $0
---------------------------------
Class D $0
---------------------------------
Class E $0
---------------------------------
Class F $0
---------------------------------
