EXHIBIT 1.1
WACHOVIA BANK
COMMERCIAL MORTGAGE TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-C3
UNDERWRITING AGREEMENT
Charlotte, North Carolina
January 28, 2003
WACHOVIA SECURITIES, INC.
000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
NOMURA SECURITIES INTERNATIONAL, INC.
2 World Financial Center
Building B
New York, New York 10281-1198
BANC OF AMERICA SECURITIES LLC
Bank of America Corporate Center, 11th Floor
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
Wachovia Commercial Mortgage Securities, Inc., a North
Carolina corporation (the "Company"), has issued its Commercial Mortgage
Pass-Through Certificates, Wachovia Bank Commercial Mortgage Trust Series
2003-C3 (the "Certificates"), in twenty-three classes (each, a "Class") as
designated in the Prospectus Supplement (as defined below). Pursuant to this
underwriting agreement (the "Agreement"), the Company further proposes to sell
to Wachovia Securities, Inc. ("WSI"), Nomura Securities International, Inc.
("Nomura Securities") and Banc of America Securities LLC ("BAS", and each of
WSI, Nomura Securities, and BAS 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 130 mortgage loans (the
"Mortgage Loans") having an approximate
aggregate principal balance of $937,264,149 as of the Cut-Off Date secured by
first liens on certain fee or leasehold interests in multifamily and commercial
properties (the "Mortgaged Properties"). The Certificates will be issued on
February 12, 2003 (the "Closing Date") pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of February 11,
2003, among the Company, Wachovia Bank, National Association, as master servicer
(in such capacity, the "Master Servicer"), Lennar Partners, Inc., as special
servicer (in such capacity, the "Special Servicer"), and Xxxxx Fargo Bank
Minnesota, N.A., as trustee (the "Trustee"). Fifty-eight (58) of the Mortgage
Loans (the "Wachovia Mortgage Loans"), having an aggregate principal balance of
$523,454,245 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 February 11, 2003 (the "Wachovia Mortgage Loan Purchase
Agreement"), between Wachovia and the Company. Forty-five (45) of the Mortgage
Loans (the "Nomura Mortgage Loans"), having an aggregate principal balance of
$285,207,152 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 February 11, 2003 (the "Nomura Mortgage Loan Purchase
Agreement"), between Nomura and the Company. Twenty-seven of the Mortgage Loans
(the "Artesia Mortgage Loans"), having an aggregate principal balance of
$128,602,753 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 February 11, 2003 (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 individually referred to herein as a "Mortgage Loan Seller" and,
collectively, are referred to herein as the "Mortgage Loan Sellers".
Two separate real estate mortgage investment conduit ("REMIC")
elections will be made with respect to most of the Trust Fund for federal income
tax purposes. In addition, a separate REMIC election has been made with respect
to the ED Loan. The Underwritten Certificates and the Mortgage Pool are
described more fully in Schedule I hereto and in a registration statement
furnished to you by the Company.
Capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned to them in the Pooling and Servicing
Agreement.
1. REPRESENTATIONS AND WARRANTIES. (a) The Company
represents and warrants to, and agrees with, each Underwriter that:
(i) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (No.
333-83930) on Form S-3 for the registration of Commercial Mortgage
Pass-Through Certificates, issuable in series, including the
Underwritten Certificates, under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective and
a copy of which, as amended to the date hereof, has heretofore been
delivered to you. The Company meets the requirements for use of Form
S-3 under the 1933 Act, and such registration statement, as amended at
the date hereof, meets the requirements set forth in Rule 415(a)(1)(x)
under the 1933 Act and complies in all other material respects with the
1933 Act and the rules and regulations thereunder. The Company proposes
to file with
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the Commission, with your consent, pursuant to Rule 424 under the 1933
Act, a supplement dated January 28, 2003 (the "Prospectus Supplement")
to the prospectus dated January 28, 2003 (the "Basic Prospectus"),
relating to the Underwritten Certificates and the method of
distribution thereof, and has previously advised you of all further
information (financial and other) with respect to the Underwritten
Certificates and the Mortgage Pool to be set forth therein. Such
registration statement (No. 333-83930), including all exhibits thereto,
is referred to herein as the "Registration Statement"; and the Basic
Prospectus and the Prospectus Supplement, together with any amendment
thereof or supplement thereto authorized by the Company prior to the
Closing Date for use in connection with the offering of the
Underwritten Certificates, are hereinafter called the "Prospectus". Any
preliminary form of the Prospectus Supplement that has heretofore been
filed pursuant to Rule 424 or, prior to the effective date of the
Registration Statement, pursuant to Rule 402(a) or 424(a), is
hereinafter called a "Preliminary Prospectus Supplement". If so stated
in the Prospectus Supplement, the Company will file with the Commission
within fifteen days of the issuance of the Underwritten Certificates a
report on Form 8-K ("8-K") setting forth specific information
concerning the Mortgage Pool and the Underwritten Certificates to the
extent that such information is not set forth in the Prospectus
Supplement. As used herein, "Pool Information" means the mortgage pool
information reflected in the Master Tape and the Prospectus Supplement.
The "Master Tape" shall mean the compilation of information and data
regarding the Mortgage Loans covered by the letters rendered by KPMG
LLP (a "hard copy" of which Master Tape was produced on behalf of the
Mortgage Loan Sellers) described in Section 6(h)(ii) in this Agreement.
(ii) As of the date hereof, as of the date on which the
Prospectus Supplement is first filed pursuant to Rule 424 under the
1933 Act, as of the date on which, prior to the Closing Date, any
amendment to the Registration Statement becomes effective, as of the
date on which any supplement to the Prospectus Supplement is filed with
the Commission, and as of the Closing Date, (i) the Registration
Statement, as amended as of any such time, and the Prospectus, as
amended or supplemented as of any such time, complies and will comply
in all material respects with the applicable requirements of the 1933
Act and the rules and regulations thereunder, (ii) the Registration
Statement, as amended as of any such time, does not include and will
not include any untrue statement of a material fact and does not omit
and will not omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, and (iii) the Prospectus, as amended or supplemented as of
any such time, does not include and will not include any untrue
statement of a material fact and does not omit and will not omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to (x) statements contained in or
omitted from the Registration Statement or the Prospectus or any
amendment or supplement thereto made in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of
any Underwriter through you specifically for use in the Registration
Statement and the Prospectus (such information being identified in
Section 8(b)), or (y) the Mortgage Loan Seller Covered Information (as
defined in Section 8 hereof).
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(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
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Agreement, the Pooling and Servicing Agreement or any Mortgage Loan
Purchase Agreement. Neither the issuance and sale of the Underwritten
Certificates, nor the execution and delivery by the Company of this
Agreement or the Pooling and Servicing Agreement nor the consummation
by the Company of any of the transactions herein or therein
contemplated, nor compliance by the Company with the provisions hereof
or thereof, did, does or will conflict with or result in a breach of
any term or provision of the certificate of incorporation or by-laws of
the Company or conflict with, result in a breach, violation or
acceleration of, or constitute a default under, the terms of any
indenture or other agreement or instrument to which the Company is a
party or by which it or any material asset is bound, or any statute,
order or regulation applicable to the Company of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over the Company.
(viii) There is no action, suit or proceeding against the
Company pending, or, to the knowledge of the Company, threatened,
before any court, arbitrator, administrative agency or other tribunal
(i) asserting the invalidity of this Agreement, the Pooling and
Servicing Agreement, any Mortgage Loan Purchase Agreement or the
Underwritten Certificates, (ii) seeking to prevent the issuance of the
Underwritten Certificates or the consummation of any of the
transactions contemplated by this Agreement (iii) that might materially
and adversely affect the performance by the Company of its obligations
under, or the validity or enforceability of, this Agreement, the
Pooling and Servicing Agreement, any Mortgage Loan Purchase Agreement
or the Underwritten Certificates or (iv) seeking to affect adversely
the federal income tax attributes of the Underwritten Certificates as
described in the Prospectus.
(ix) There are no contracts, indentures or other documents
of a character required by the 1933 Act or by the rules and regulations
thereunder to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement which have not been so described or referred to therein or so
filed or incorporated by reference as exhibits thereto.
(x) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering or sale of the Underwritten Certificates pursuant to this
Agreement, except such as have been, or as of the Closing Date will
have been, obtained or such as may otherwise be required under
applicable state securities laws in connection with the purchase and
offer and sale of the Underwritten Certificates by the Underwriters and
any recordation of the respective assignments of the Mortgage Loans to
the Trustee pursuant to the Pooling and Servicing Agreement that have
not been completed.
(xi) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by it, and the Company has not received any
notice of proceedings relating to the revocation or modification of any
such license, certificate, authority or permit which, singly or in the
aggregate, if the subject of any unfavorable decision, ruling or
finding, would materially and adversely affect the
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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
Underwritten Certificates and will report the sale of the Underwritten
Certificates to the Underwriters pursuant to this Agreement as a sale
of the interests in the Mortgage Loans evidenced by the Underwritten
Certificates. The consideration received by the Company upon the sale
of the Underwritten Certificates to the Underwriters will constitute
reasonably equivalent value and fair consideration for the Underwritten
Certificates. The Company will be solvent at all relevant times prior
to, and will not be rendered insolvent by, the sale of the Underwritten
Certificates to the Underwriters. In addition, the Company was solvent
at all relevant times prior to, and was not rendered insolvent by, the
transfer of the Mortgage Loans to the Trustee on behalf of the Trust
Fund. The Company is not selling the Underwritten Certificates to the
Underwriters and did not transfer the Mortgage Loans to the Trustee on
behalf of the Trust Fund with any intent to hinder, delay or defraud
any of the creditors of the Company.
(xv) At the Closing Date, the respective classes of
Underwritten Certificates shall continue to have maintained ratings no
lower than those set forth in Schedule I hereto by the nationally
recognized statistical rating organizations identified in Schedule I
hereto (individually and collectively, the "Rating Agency").
(b) Xxxxxxxx represents and warrants to, and agrees with,
each Underwriter, that:
(i) Wachovia is a national banking association validly
existing under the laws of the United States of America and possesses
all requisite authority, power, licenses, permits and franchises to
carry on its business as currently conducted by it and to execute,
deliver and comply with its obligations under the terms of this
Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by Xxxxxxxx and, assuming due authorization,
execution and delivery hereof
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by the Company and the Underwriters, constitutes a legal, valid and
binding obligation of Wachovia, enforceable against Wachovia in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights in general, as they may
be applied in the context of the insolvency of a national banking
association, and by general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law),
and by public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement which purport to
provide indemnification from liabilities under applicable securities
laws.
(iii) The execution and delivery of this Agreement by
Xxxxxxxx and Xxxxxxxx's performance and compliance with the terms of
this Agreement will not (A) violate Wachovia's articles of association
or by-laws, (B) violate any law or regulation or any administrative
decree or order to which it is subject or (C) constitute a default (or
an event which, with notice or lapse of time, or both, would constitute
a default) under, or result in the breach of, any contract, agreement
or other instrument to which Wachovia is a party or by which Wachovia
is bound.
(iv) Wachovia is not in default with respect to any order
or decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental agency or body, which
default might have consequences that would materially and adversely
affect the condition (financial or other) or operations of Wachovia or
its properties or have consequences that would materially and adversely
affect its performance hereunder.
(v) Wachovia is not a party to or bound by any agreement
or instrument or subject to any articles of association, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would materially and adversely affect
the ability of Wachovia to perform its obligations under this Agreement
or that requires the consent of any third person to the execution of
this Agreement or the performance by Wachovia of its obligations under
this Agreement (except to the extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by Xxxxxxxx of or compliance by Wachovia with
this Agreement or the consummation of the transactions contemplated by
this Agreement except as have previously been obtained.
(vii) No litigation is pending or, to the best of
Xxxxxxxx's knowledge, threatened against Wachovia that would prohibit
its entering into this Agreement or materially and adversely affect the
performance by Wachovia of its obligations under this Agreement.
(viii) Each representation and warranty of the Company set
forth in Section 1(a) hereof is true and correct as of the date hereof
or as of the date specified in such representation and warranty.
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(c) Each Underwriter represents and warrants to the
Company that, as of the date hereof and as of the Closing Date, (i) such
Underwriter has complied in all material respects with all of its obligations
under Section 4 hereof and (ii) with respect to all Computational Materials and
Term Sheets (as such terms are defined in Section 4 herein), if any, provided by
such Underwriter to the Company pursuant to Section 4(b)(iv), such Computational
Materials and Term Sheets are accurate in all material respects (taking into
account the assumptions explicitly set forth or otherwise referred to in the
Computational Materials or in the Prospectus Supplement or Term Sheets or the
Preliminary Prospectus Supplement, and provided that the underlying data
regarding the Mortgage Loans, and the related Mortgagors and Mortgaged
Properties, provided to the Underwriters by the Mortgage Loan Sellers is
accurate and complete in all material respects) and constitute a complete set of
all Computational Materials and Term Sheets that are required to be filed with
the Commission pursuant to the No-Action Letters (as defined herein).
2. PURCHASE AND SALE. Subject to the terms and
conditions and in reliance upon the representations and warranties set forth
herein, the Company agrees to sell to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the Company, at the
applicable purchase prices set forth in Schedule I hereto, the respective
principal and notional amounts of the Underwritten Certificates set forth
opposite the name of each Underwriter set forth in Schedule II hereto, and any
additional portions of the Underwritten Certificates that any such Underwriter
may be obligated to purchase pursuant to Section 10, in all cases plus accrued
interest as set forth in Schedule I.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwritten Certificates shall be made in the manner, at the location(s), on
the Closing Date at the time specified in Schedule I hereto (or such later date
not later than ten business days after such specified date as you shall
designate), which date and time may be changed by agreement between you and the
Company or as provided in Section 10 hereof. Delivery of the Underwritten
Certificates shall be made either directly to you or through the facilities of
The Depository Trust Company ("DTC"), as specified in Schedule I hereto, for the
respective accounts of the Underwriters against payment by the respective
Underwriters of the purchase price therefor in immediately available funds wired
to such bank as may be designated by the Company, or such other manner of
payment as may be agreed upon by the Company and you. Any Class of Underwritten
Certificates to be delivered through the facilities of DTC shall be represented
by one or more global Certificates registered in the name of Cede & Co., as
nominee of DTC, which global Certificate(s) shall be placed in the custody of
DTC not later than 10:00 a.m. (New York City time) on the Closing Date pursuant
to a custodial arrangement to be entered into between the Trustee or its agent
and DTC. Unless delivered through the facilities of DTC, the Underwritten
Certificates shall be in fully registered certificated form, in such
denominations and registered in such names as you may have requested in writing
not less than one full business day in advance of the Closing Date.
The Company agrees to have the Underwritten Certificates,
including the global Certificates representing the Underwritten Certificates to
be delivered through the facilities of DTC, available for inspection, checking
and, if applicable, packaging by you in New York, New York, not later than the
close of business (New York City time) on the business day preceding the Closing
Date.
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References herein, including, without limitation, in the
Schedules hereto, to actions taken or to be taken following the Closing Date
with respect to any Underwritten Certificates that are to be delivered through
the facilities of DTC shall include, if the context so permits, actions taken or
to be taken with respect to the interests in such Certificates as reflected on
the books and records of DTC.
4. OFFERING BY UNDERWRITERS.
(a) It is understood that the Underwriters propose to
offer the Underwritten Certificates for sale to the public, including, without
limitation, in and from the State of New York, as set forth in the Prospectus
Supplement. It is further understood that the Company, in reliance upon an
exemption from the Attorney General of the State of New York to be granted
pursuant to Policy Statement 104 and 105, has not and will not file the offering
pursuant to Section 352-e of the General Business Law of the State of New York
with respect to the Underwritten Certificates.
(b) Each Underwriter may prepare and provide to
prospective investors certain Computational Materials, ABS Term Sheets,
Structural Term Sheets or Collateral Term Sheets in connection with its offering
of the Certificates, subject to the following conditions:
(i) Such Underwriter shall comply with the requirements
of the no-action letter, dated May 20, 1994, issued by the Commission to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx
Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association, dated May 27, 1994 (collectively, the "Xxxxxx/PSA
Letter"), and the requirements of the no-action letter, dated February 17, 1995,
issued by the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Xxxxxx/PSA Letter, the "No-Action Letters").
(ii) For purposes hereof, "Computational Materials" shall
have the meaning given such term in the No-Action Letters, but shall
include only (x) the Computational Materials attached hereto as Exhibit
A and (y) such other Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of such
Underwriter. For purposes hereof, "ABS Term Sheets," "Structural Term
Sheets" and "Collateral Term Sheets" shall have the meanings given such
terms in the PSA Letter but shall include only (x) the Term Sheets
attached hereto as Exhibit B, and (y) those other ABS Term Sheets,
Structural Term Sheets or Collateral Term Sheets that have been
prepared for or delivered to prospective investors by or at the
direction of such Underwriter. As used herein, "Term Sheets" means any
ABS Term Sheets, Structural Term Sheets and/or Collateral Term Sheets.
(iii) All Computational Materials and Term Sheets provided
to prospective investors shall bear a legend in a form previously
approved by the Company or its counsel.
(iv) Such Underwriter shall not distribute any such
Computational Materials or Term Sheets unless the forms and methodology
thereof are in accordance with this
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Agreement. Such Underwriter shall provide to the Company, for filing on
Form 8-K as provided in Section 5(g), copies (in such format as
required by the Company) of all Computational Materials and Term
Sheets. The Underwriter may provide copies of the foregoing in a
consolidated or aggregated form including all information required to
be filed. All Computational Materials and Term Sheets described in this
subsection (iv) must be provided to the Company (a) in paper or
electronic format suitable for filing with the Commission and (b) not
later than 10:00 a.m. (New York City time) on a business day that is
not less than one business day before filing thereof is required
pursuant to the terms of the No-Action Letters.
(v) All information included in the Computational
Materials and Term Sheets shall be generated based on substantially the
same methodology and assumptions as are used to generate the
information in the Prospectus Supplement as set forth therein; provided
that the Computational Materials and Term Sheets may include
information based on alternative methodologies or assumptions if
specified therein. If any Computational Materials or Term Sheets were
based on assumptions with respect to the Mortgage Pool that differ from
the final Pool Information in any material respect or on Underwritten
Certificate structuring assumptions (except in the case of
Computational Materials when the different structuring terms were
hypothesized and so described) that were revised in any material
respect prior to the printing of the Prospectus, then to the extent
that it has not already done so, such Underwriter shall immediately
inform the Company and, upon the direction of the Company, and if not
corrected by the Prospectus, shall prepare revised Computational
Materials and Term Sheets, as the case may be, based on the final
collateral information and structuring assumptions, circulate such
revised Computational Materials and Term Sheets to all recipients of
the preliminary versions thereof, and include such revised
Computational Materials and Term Sheets (marked, "as revised") in the
materials delivered to the Company pursuant to subsection (iv) above.
(vi) If, within the period during which the Prospectus
relating to the Underwritten Certificates is required to be delivered
under the 1933 Act, any Computational Materials or Term Sheets are
determined, in the reasonable judgment of the Company or such
Underwriter, to contain a material error or, when read together with
the Prospectus, a material omission, then (unless the material error or
omission was corrected in the Prospectus) the Underwriter shall prepare
a corrected version of such Computational Materials or Term Sheets,
shall circulate such corrected Computational Materials or Term Sheets
to all recipients of the prior versions thereof, and shall deliver
copies of such corrected Computational Materials or Term Sheets
(marked, "as corrected") to the Company for filing with the Commission
in a subsequent Form 8-K submission (subject to the Company's obtaining
an accountant's comfort letter in respect of such corrected
Computational Materials and Term Sheets, which shall be at the expense
of such Underwriter).
(vii) Such Underwriter shall be deemed to have represented,
as of the Closing Date, that except for Computational Materials and/or
Term Sheets provided to the Company pursuant to subsection (iv) above,
such Underwriter did not provide any prospective investors with any
information in written or electronic form in connection
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with the offering of the Underwritten Certificates that is required to
be filed with the Commission in accordance with the No-Action Letters.
(viii) In the event of any delay in the delivery by such
Underwriter to the Company of all Computational Materials and Term
Sheets required to be delivered in accordance with subsection (iv)
above, the Company shall have the right to delay the release of the
Prospectus to investors or to the Underwriter, to delay the Closing
Date and to take other appropriate actions in each case as necessary in
order to allow the Company to comply with its agreement set forth in
Section 5(g) to file the Computational Materials and Term Sheets by the
time specified therein.
(ix) Computational Materials and Term Sheets may be
distributed by the Underwriter through electronic means in accordance
with SEC Release No. 33-7233 or other applicable laws or regulations.
(c) Each Underwriter further agrees that it shall
promptly provide the Company with such pricing information as the Company may
reasonably request to enable it to comply with its reporting requirements with
respect to each class of Underwritten Certificates to the extent such
information can in the good faith judgment of the Underwriter be reasonably
determined by it.
5. COVENANTS OF THE COMPANY. The Company covenants and
agrees with the Underwriters that:
(a) The Company will not file any amendment to the
Registration Statement (other than by reason of Rule 429 under the 1933 Act) or
any supplement to the Basic Prospectus relating to or affecting the Underwritten
Certificates, unless the Company has furnished a copy to you for your review
prior to filing, and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the Company will
cause the Prospectus Supplement to be transmitted to the Commission for filing
pursuant to Rule 424 under the 1933 Act or will cause the Prospectus Supplement
to be filed with the Commission pursuant to said Rule 424. The Company promptly
will advise you or counsel for the Underwriters (i) when the Prospectus
Supplement shall have been filed or transmitted to the Commission for filing
pursuant to Rule 424, (ii) when any amendment to the Registration Statement
shall have become effective, (iii) of any request by the Commission to amend the
Registration Statement or supplement the Prospectus Supplement or for any
additional information in respect of the offering contemplated hereby, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereto which shall
have become effective on or prior to the Closing Date or the institution or
threatening of any proceeding for that purpose, and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Underwritten Certificates for sale in any jurisdiction or the institution
or threatening of any proceeding for that purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or suspension and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Underwritten Certificates is required to be delivered under the 1933 Act, any
event occurs as a result of which the
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Prospectus, as then amended or supplemented, would include any untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the 1933 Act or the rules and regulations thereunder,
the Company promptly will prepare and file with the Commission, at the expense
of the Company, subject to paragraph (a) of this Section 5, an amendment or
supplement that will correct such statement or omission or an amendment that
will effect such compliance and, if such amendment or supplement is required to
be contained in a post-effective amendment to the Registration Statement, the
Company will use its best efforts to cause such amendment to the Registration
Statement to be made effective as soon as possible.
(c) The Company will furnish to you and to counsel for
the Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date, and, upon request, to each other
Underwriter a copy of the Registration Statement (without exhibits thereto) and
each such amendment and, so long as delivery of a prospectus by an Underwriter
or dealer may be required by the 1933 Act, as many copies of any Preliminary
Prospectus Supplement, the Prospectus Supplement and the Basic Prospectus and
any amendments and supplements thereto as you may reasonably request.
(d) The Company will furnish such information, execute
such instruments and take such action, if any, as may be required to qualify the
Underwritten Certificates for sale under the laws of such jurisdictions as you
may designate and will maintain such qualifications in effect so long as
required for the distribution of the Underwritten Certificates; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now subject to such service of process.
(e) The Company will pay, or cause to be paid, all costs
and expenses in connection with the transactions herein contemplated, including,
but not limited to, the fees and disbursements of its counsel; the costs and
expenses of printing (or otherwise reproducing) and delivering the Pooling and
Servicing Agreement and the Underwritten Certificates; the fees and
disbursements of accountants for the Company; the reasonable out-of-pocket costs
and expenses in connection with the qualification or exemption of the
Underwritten Certificates under state securities or "Blue Sky" laws, including
filing fees and reasonable fees and disbursements of counsel in connection
therewith, in connection with the preparation of any "Blue Sky" survey and in
connection with any determination of the eligibility of the Underwritten
Certificates for investment by institutional investors and the preparation of
any legal investment survey; the expenses of printing any such "Blue Sky" survey
and legal investment survey; the cost and expenses in connection with the
preparation, printing and filing of the Registration Statement (including
exhibits thereto), the Basic Prospectus, the Preliminary Prospectus Supplement,
if any, and the Prospectus Supplement, the preparation and printing of this
Agreement and the delivery to the Underwriters of such copies of the Basic
Prospectus and each Preliminary Prospectus Supplement, if any, and Prospectus
Supplement as you may reasonably request; the fees of the Rating Agencies that
are rating the Underwritten Certificates; and the reasonable fees and
disbursements of counsel to the Underwriters.
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(f) To the extent that the Pooling and Servicing
Agreement provides that the Underwriters are to receive any notices or reports,
or have any other rights thereunder, the Company will enforce the rights of the
Underwriters under the Pooling and Servicing Agreement and will not consent to
any amendment of the Pooling and Servicing Agreement that would adversely affect
such rights of the Underwriters.
(g) The Company shall, as to itself, and the Company, or
pursuant to the Pooling and Servicing Agreement the Trustee, will be required
to, as to the Trust Fund, satisfy and comply with all reporting requirements of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules
and regulations thereunder. The Company will also file with the Commission a
report on Form 8-K setting forth all Computational Materials and Term Sheets
provided to the Company by an Underwriter and identified by it as such within
the time period allotted for such filing pursuant to the No-Action Letters;
provided, however, that prior to such filing of the Computational Materials and
Term Sheets by the Company, each Underwriter must comply with its obligations
pursuant to Section 4(b). The Company shall file any corrected Computational
Materials described in Section 4(b)(vi) as soon as practicable following receipt
thereof.
(h) The Company shall take all reasonable action
necessary to enable the Rating Agencies to provide their respective credit
ratings of the Underwritten Certificates as described in the Prospectus.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS.
The obligation of each Underwriter hereunder to purchase its allocated share of
the Underwritten Certificates shall be subject to: (i) the accuracy of the
representations and warranties on the part of the Company contained herein as of
the date hereof, as of the date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date, as of the date the
Prospectus Supplement or any supplement thereto is filed with the Commission and
as of the Closing Date; (ii) the accuracy of the statements of the Company made
in any certificates delivered pursuant to the provisions hereof; (iii) the
performance by the Company of its obligations hereunder; and (iv) the following
additional conditions:
(a) The Registration Statement shall have become
effective and no stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or, to
the Company's knowledge, threatened; and the Prospectus Supplement shall have
been filed or transmitted for filing with the Commission in accordance with Rule
424 under the 1933 Act.
(b) You shall have received from Cadwalader, Xxxxxxxxxx &
Xxxx, 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
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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 Wachovia, signed by an authorized officer
of Wachovia 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) Wachovia has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied hereunder at or prior to the Closing Date.
(d) You shall have received (i) with respect to Xxxxxxxx,
a certificate of the Office of the Comptroller of the Currency and (ii) with
respect to the Company a good standing certificate from the Secretary of State
of the State of North Carolina, each dated not earlier than 30 days prior to the
Closing Date.
(e) (i) You shall have received from the Secretary or an
assistant secretary of the Company, in his individual capacity, a certificate,
dated the Closing Date, to the effect that: (x) each individual who, as an
officer or representative of the Company, signed this Agreement, or any other
document or certificate delivered on or before the Closing Date in connection
with the transactions contemplated herein, was at the respective times of such
signing and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures; and (y) no event (including, without limitation, any act or omission
on the part of the Company) has occurred since the date of the good standing
certificate referred to in paragraph 6(d) above which has affected the good
standing of the Company under the laws of the State of North Carolina. Such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an Assistant Secretary of the Company) of the certificate of
incorporation and by-laws of the Company, as in effect on the Closing Date, and
of the resolutions of the Company and any required shareholder consent relating
to the transactions contemplated in this Agreement; and (ii) you shall have
received from the Secretary or an Assistant Secretary of the Wachovia, in his
individual capacity, a certificate, dated the Closing Date, to the effect that:
(x) each individual who, as an officer or representative of Wachovia, signed
this Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures; and (y) no event (including,
without limitation, any act or omission on the part of Wachovia) has occurred
since the date of the certificate referred to in paragraph 6(d) above which has
affected the existence of Wachovia under the laws of the United States of
America. Such certificate shall be accompanied by true and complete copies
(certified as such by the Secretary or an Assistant Secretary of Wachovia) of
the articles of association and by-laws of Wachovia, as in effect on the Closing
Date, and of the resolutions of Wachovia and any required shareholder consent
relating to the transactions contemplated in this Agreement.
(f) You shall have received from Xxxxx, Xxxxx, Xxxx &
Maw, special counsel for the Company, one or more favorable opinions, dated the
Closing Date and
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satisfactory in form and substance to you and counsel for the Underwriters
substantially to the effect that:
(i) The statements in the Prospectus under the headings
"ERISA Considerations" and "Material Federal Income Tax Consequences",
to the extent that they describe certain matters of federal law or
legal conclusions with respect thereto, provide a fair and accurate
summary of such matters and conclusions;
(ii) As described in the Prospectus Supplement and
assuming compliance with the provisions of the Pooling and Servicing
Agreement, REMIC I and REMIC II will qualify as a REMIC within the
meaning of Sections 860A through 860G (the "REMIC Provisions") of the
Code, and the portion of the Trust Fund consisting of the Additional
Interest (as such terms are defined in the Pooling and Servicing
Agreement) will be treated as a grantor trust for federal income tax
purposes under subpart E, Part I of subchapter J of the Code;
(iii) The Pooling and Servicing Agreement is not required
to be qualified under the Trust Indenture Act of 1939, as amended, and
the Trust Fund created by the Pooling and Servicing Agreement is not
required to be registered under the Investment Company Act, as amended;
(iv) Each Mortgage Loan Purchase Agreement and the Pooling
and Servicing Agreement constitutes the legal, valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, liquidation, receivership, moratorium,
reorganization and similar laws affecting creditors' rights generally,
and general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law), and except that: (a)
provisions purporting to waive or limit rights to trial by jury, oral
amendments to written agreements or rights of set-off, (b) provisions
relating to submission to jurisdiction, venue or service of process,
(c) interest on interest provisions or (d) severability clauses may be
limited by applicable law or considerations of public policy;
(v) The Registration Statement is effective under the
1933 Act and, to such counsel's knowledge, no stop order with respect
thereto has been issued by the Commission;
(vi) The Registration Statement, as of its effective date,
and the Prospectus, as of the date thereof (in each case, with the
exception of any information incorporated by reference therein and any
numerical, financial, statistical and quantitative data included
therein), appeared on their respective faces to be appropriately
responsive in all material respects to the requirements of the 1933 Act
and the rules and regulations thereunder applicable to such documents
as of the relevant date;
(vii) The statements contained in the Prospectus Supplement
under the heading "DESCRIPTION OF THE CERTIFICATES", insofar as such
statements purport to summarize material terms of the Certificates, are
correct in all material respects; and
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(viii) The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and paid for in accordance with the Underwriting
Agreement will be validly issued and outstanding and entitled to the
benefits provided by the Pooling and Servicing Agreement.
Such opinions may express their reliance as to factual matters
on the representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto. Such opinion may be qualified as an opinion
only on the laws of the State of New York and the federal law of the United
States.
In a separate letter addressed only to the Underwriters,
Xxxxx, Xxxxx, Xxxx & Maw shall additionally state that, based on conferences and
telephone conversations with representatives of Xxxxxxxx, 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; and information relating to the
Master Servicer, the Special Servicer or the Trustee contained in or omitted
from the Prospectus), at the date of the Prospectus Supplement or at the Closing
Date, contained or contains any untrue statement of a material fact or omitted
or omits to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (ii) the Registration Statement (other than with respect to any
exhibits filed therewith or any information incorporated by reference), at its
effective date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(g) You shall have received from Xxxxxxx X. Xxxxxxx,
counsel for the Company and Wachovia, a favorable opinion, dated the Closing
Date and satisfactory in form and substance to you and counsel for the
Underwriters, to the effect that:
(i) The Company is a corporation in good standing under
the laws of the State of North Carolina and has the corporate power and
authority to enter into and perform its obligations under this
Agreement.
(ii) Neither the sale of the Underwritten Certificates,
nor the consummation of any other of the transactions contemplated in
or the fulfillment of the terms of this Agreement, will conflict with
or result in a breach or violation of any term or provision of, or
constitute a default (or an event which with the passing of time or
notification, or both, would constitute a default) under, the articles
of incorporation or by-laws of the Company, or, to the knowledge of
such counsel, any indenture or other agreement or instrument to which
the Company is a party or by which it is bound, or, to the knowledge of
such counsel, any order of any State of North Carolina or federal
court, regulatory
-16-
body, administrative agency or governmental body having jurisdiction
over the Company.
(iii) Wachovia is a national banking association validly
existing under the laws of the United States of America and has the
corporate power and authority to enter into and perform its obligations
under this Agreement.
(iv) To the knowledge of such counsel, there are no
actions, proceedings or investigations pending before or threatened by
any court, administrative agency or other tribunal to which the Company
is a party or of which any of its properties is the subject (a) which,
if adversely determined, would have a material adverse effect on the
business or financial condition of the Company, (b) asserting the
invalidity of this Agreement or the Underwritten Certificates, (c)
seeking to prevent the issuance of the Underwritten Certificates or the
consummation by the Company of any of the transactions contemplated by
this Agreement, as the case may be, or (d) which, if adversely
determined, might materially and adversely affect the performance by
the Company of its obligations under, or the validity or enforceability
of, this Agreement;
(v) This Agreement has been duly authorized, executed and
delivered by each of the Company and Wachovia.
(vi) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is required for
the consummation by Wachovia and the Company of the transactions
contemplated by this Agreement except for those consents, approvals,
authorizations or orders that previously have been obtained, as may be
required under federal or state securities laws, and such real estate
filings as may be required in connection with the transfer of the
Mortgage Loans and the other matters contemplated under the Mortgage
Loan Purchase Agreements.
(vii) The fulfillment of the terms of this Agreement will
not conflict with or result in a breach or violation of any term or
provision of, or constitute a default (or an event which with the
passing of time or notification, or both, would constitute a default)
under, the articles of association or by-laws of Wachovia or, to such
counsel's knowledge, any indenture or other agreement or instrument to
which Wachovia is a party or by which it is bound, or to such counsel's
knowledge, any order of any federal court, regulatory body,
administrative agency or governmental body having jurisdiction over
Wachovia.
(viii) To the knowledge of such counsel, there are no
actions, proceedings or investigations pending before or threatened by
any court, administrative agency or other tribunal to which Wachovia is
a party or of which any of its properties is the subject (a) which, if
adversely determined, would have a material adverse effect on the
business or financial condition of Wachovia, (b) asserting the
invalidity of this Agreement, (c) seeking to prevent the consummation
by Wachovia of any of the transactions contemplated by this Agreement
or (d) which, if adversely determined, might materially and adversely
affect the performance by Wachovia of its obligations under, or the
validity or enforceability of this Agreement.
-17-
(h) You shall have received from KPMG LLP, certified
public accountants, a letter satisfactory in form and substance to you and
counsel for the Underwriters, to the following effect:
(i) they have performed certain specified procedures as
a result of which they have determined that the information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement under the captions "Summary of the Prospectus Supplement,"
"Description of the Mortgage Pool" and "Yield and Maturity
Considerations" and on Annex A agrees with the Master Tape prepared by
or on behalf of the Mortgage Loan Sellers, unless non-material
deviations are otherwise noted in such letter; and
(ii) they have compared the data contained in the Master
Tape referred to in the immediately preceding clause (i) to information
contained in an agreed upon sampling of the Mortgage Loan files and in
such other sources as shall be specified by them, and found such data
and information to be in agreement in all material respects, unless
non-material deviations are otherwise noted in such letter.
(i) You shall have received written confirmation from the
Rating Agencies that the ratings assigned to the Underwritten Certificates on
the Closing Date are as described on Schedule I hereto and that, as of the
Closing Date, no notice has been given of (i) any intended or possible
downgrading or (ii) any review or possible changes in such ratings.
(j) You shall have received from the Secretary or an
Assistant Secretary of the Trustee, in his individual capacity, a certificate,
dated the Closing Date, to the effect that the information under the heading
"Description of the Certificates - The Trustee" in the Prospectus Supplement is
true and correct in all material respects.
(k) You shall have received from Xxxxxxx, Xxxxxxxxx,
Xxxxxxx & Xxxxxxx, counsel for the Trustee, a favorable opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriter and counsel
for the Underwriters.
(l) You shall have received from the Secretary or an
Assistant Secretary of the Master Servicer, in his individual capacity, a
certificate, dated the Closing Date, to the effect that the information relating
to the Master Servicer under the heading "Servicing of the Mortgage Loans - The
Master Servicer and the Special Servicer" in the Prospectus Supplement, is true
and correct in all material respects.
(m) You shall have received from Cadwalader, Xxxxxxxxxx &
Xxxx, counsel for the Master Servicer, a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriter and counsel for the
Underwriters.
(n) You shall have received from the Secretary or an
Assistant Secretary of the Special Servicer, in his individual capacity, a
certificate, dated the Closing Date, to the effect that the information relating
to the Special Servicer under the heading "Servicing of the Mortgage Loans- The
Master Servicer and the Special Servicer" in the Prospectus Supplement, is true
and correct in all material respects.
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(o) You shall have received from Bilzin Xxxxxxx Xxxx
Xxxxx Price & Xxxxxxx LLP, counsel for the Special Servicer, a favorable
opinion, dated the Closing Date, in form and substance satisfactory to the
Underwriter and counsel for the Underwriters.
(p) You shall have received from Xxxxxxx X. Xxxxxxx,
counsel for Xxxxxxxx, as Mortgage Loan Seller, a favorable opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriter and counsel
for the Underwriters.
(q) You shall have received copies of any opinions from
Xxxxx, Xxxxx, Xxxx & Maw, special counsel to the Company and Wachovia, and
Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, special counsel to Nomura and Artesia, supplied
to the Rating Agencies relating to certain matters with respect to the
Underwritten Certificates, the transfer of the Mortgage Loans and any other
matters related thereto. Any such opinions shall be dated the Closing Date and
addressed to the Underwriters.
(r) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
satisfactory in form and substance to you and counsel for the Underwriters, and
you and such counsel shall have received such additional information,
certificates and documents as you or they may have reasonably requested.
(s) You shall have received from Xxxxxx Xxxxxx Xxxxx &
Xxxx LLP, special counsel for Artesia, 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 as described in the Prospectus
Supplement and assuming compliance with the provisions of the Pooling and
Servicing Agreement, the ED Loan REMIC will qualify as a REMIC within the
meaning of the REMIC Provisions of the Code, and the portion of the Trust Fund
consisting of the ED Loan REMIC Residual Interest will be treated as a grantor
trust for federal income tax purposes under subpart E, Part I of subchapter J of
the Code.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, if the Company is in breach of any covenants or agreements contained
herein or if any of the opinions and certificates referred to above or elsewhere
in this Agreement shall not be in all material respects reasonably satisfactory
in form and substance to you and counsel for the Underwriters, this Agreement
and all obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by you. Notice of such cancellation shall be
given to the Company in writing, or by telephone or telegraph confirmed in
writing.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the
sale of the Underwritten Certificates provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 6 is not satisfied or because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or comply with any
provision hereof, other than by reason of a default by any of the Underwriters,
the Company and Wachovia, jointly and severally, will reimburse the Underwriters
severally, upon demand, for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Underwritten Certificates.
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8. INDEMNIFICATION.
(a) The Company and Wachovia, jointly and severally,
agree to indemnify and hold harmless each Underwriter, its officers and
directors and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the 1933 Act and Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Basic Prospectus, any Preliminary
Prospectus Supplement or the Prospectus Supplement (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided the foregoing indemnity shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting claims giving rise to any
such losses, claims, damages, expenses or liabilities purchased
Underwritten Certificates if such untrue statement or omission or
alleged untrue statement or omission made in any Preliminary Prospectus
Supplement or Prospectus is eliminated or remedied in the Prospectus or
a corrected and amended Prospectus as applicable, and, if required by
law, a copy of the Prospectus (as corrected or amended, if applicable)
shall not have been sent to such person at or prior to the written
confirmation of the sale of such Certificates to such person unless
such failure to deliver the Prospectus (as corrected or amended, if
applicable) was a result of the Company's failure to furnish copies
thereof in sufficient quantity; provided, however, that the indemnity
provided by this Section 8(a) shall not apply to any loss, liability,
claim, damage or expense to the extent any such untrue statement or
alleged untrue statement or omission or alleged omission arises out of
or is based upon an untrue statement or omission with respect to Seller
Information as defined in Section 7 of each of the related Mortgage
Loan Purchase Agreements (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 related Mortgage Loan
Sellers, and (ii) such loss, liability, claim, damage or expense would
be subject to the provisions of Section 7 of the related Mortgage Loan
Purchase Agreements;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
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threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company or as otherwise contemplated by Section 8(c); and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such
Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above; provided, however, that
the indemnity provided by this Section 8(a) shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information (as specified in Section 8(b) below) furnished to the
Company by any Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or in the Basic Prospectus, any
Preliminary Prospectus Supplement or the Prospectus Supplement (or any
amendment or supplement thereto).
(b) Each Underwriter, severally but not jointly, agrees
to indemnify and hold harmless the Company, its directors, each of its officers
who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or in the Basic Prospectus, any Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or in the Basic Prospectus, such Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment or supplement
thereto); provided, that no such material misstatement or omission arises from
an error or omission in information relating to the underlying data regarding
the Mortgage Loans or the related Mortgagors or Mortgaged Properties provided by
the Company or any Mortgage Loan Seller to such Underwriter; in addition, each
Underwriter, severally but not jointly, shall indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any
and all losses, liabilities, claims and damages as incurred arising out of any
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission of a material fact contained in any Term Sheets or
Computational Materials which, when read together with any Preliminary
Prospectus Supplement and the Prospectus Supplement, was required to be stated
therein or necessary to make the statements therein not misleading; provided,
that no such material misstatement or omission arises from an error or omission
in information relating to the underlying data regarding the Mortgage Loans or
the related Mortgagors or Mortgaged Properties provided by the Company or any
Mortgage Loan Seller to such Underwriter; and provided, further, that any such
Term Sheets or Computational Materials were distributed by
-21-
such Underwriter. It is hereby acknowledged that (i) the statements set forth in
the first, second, third and fourth sentences of the penultimate paragraph on
the cover of the Prospectus Supplement, (ii) the statements in the second
paragraph and the first sentence of the sixth paragraph under the caption
"Method of Distribution" in the Prospectus Supplement and (iii) the statements
in any Computational Materials and Term Sheets delivered by the Underwriters to
the Company for filing with the Commission pursuant to this Agreement and the
No-Action Letters, constitute the only written information furnished to the
Company by the Underwriters expressly for use in the Registration Statement (or
any amendment thereto) or in the Basic Prospectus, the Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of the indemnity
provided by this Section 8. An indemnifying party may participate at its own
expense in the defense of any such action and, to the extent that it may elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from the indemnified party, to assume the defense thereof,
with counsel satisfactory to such indemnified party. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have agreed to
the retention of such counsel, or (ii) the indemnifying party shall not have
assumed the defense of such action, with counsel satisfactory to the indemnified
party, within a reasonable period following the indemnifying party's receiving
notice of such action, or (iii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. In
no event shall the indemnifying party or parties be liable for fees and expenses
of more than one counsel (or, in the event the Company or Wachovia is the
indemnifying party, one counsel for each Underwriter) (in addition to any local
counsel) separate from its or their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
Unless it shall assume the defense of any proceeding, an indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party shall indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel or any other expenses for
which the indemnifying party is obligated under this subsection, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 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
-22-
the proceeding that have been asserted against the indemnified party in such
proceeding by the other parties to such settlement, without the consent of the
indemnified party.
(d) The indemnity provided by this Section 8 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by the Company, the Underwriters, any of
their respective directors or officers, or any person controlling the Company or
the Underwriters, and (iii) acceptance of and payment for any of the
Underwritten Certificates.
(e) Each Underwriter, severally but not jointly, will
indemnify and hold harmless any other Underwriter and each person, if any, who
controls such Underwriter within the meaning of either the 1933 Act or the 1934
Act (collectively, the "Non-Indemnifying Underwriter") from and against any and
all loss, liability, claim, damage and expense whatsoever, as incurred, that
arise out of or are based upon (i) any untrue statement of material fact
contained in any Computational Materials or Term Sheets (other than the
Computational Materials and Term Sheets attached hereto as Exhibit A and Exhibit
B) prepared by such indemnifying Underwriter or any member of its selling group,
in connection with the Underwritten Certificates (or in any revision or
amendment thereof or supplement thereto) or (ii) the failure of such
indemnifying Underwriter, or any member of its selling group, to comply with any
provision of Section 4(b) hereof, and agrees to reimburse each such
Non-Indemnifying Underwriter, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, liability, claim, damage or expense; provided, that the indemnity
provided by this Section 8(e) shall not apply to the extent that such
indemnifying Underwriter is entitled under any Mortgage Loan Purchase Agreement
to seek indemnity for such loss, liability, claim, damage or expense from a
Mortgage Loan Seller affiliated with the Underwriter seeking indemnification.
The indemnity provided by this Section 8 will be in addition to any liability
that any Underwriter may otherwise have.
9. CONTRIBUTION.
(a) In order to provide for just and equitable
contribution in circumstances in which the indemnity provided by Section 8
hereof is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, or if such indemnification
provided for in Section 8 hereof is insufficient in respect of any losses,
liabilities, claims or damages referred to therein, the Company and Wachovia,
jointly and severally, and the Underwriters, severally, shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by the indemnity provided by Section 8 incurred by the Company and
the Underwriters, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and each
Underwriter on the other from the offering of the Underwritten Certificates or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of each Underwriter on the other in connection
with the statements or omissions which resulted in such losses, claims, damages,
expenses or liabilities, as well as any other relevant equitable considerations
(taking into account the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission
-23-
or failure to comply, and any other equitable considerations appropriate under
the circumstances). The relative benefits received by the Company and Wachovia
on the one hand and the Underwriters on the other shall be deemed to be in the
same respective portions as the net proceeds (before deducting expenses)
received by the Company from the sale of the Underwritten Certificates and the
total underwriting discounts and commissions received by the Underwriters in
connection therewith bear to the aggregate offering price of the Underwritten
Certificates. The relative fault of the Company on the one hand and of each
Underwriter on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Notwithstanding the foregoing, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation; and no Underwriter shall be obligated to
contribute more than its share of underwriting discounts and commissions
pertaining to the Underwritten Certificates less any damages otherwise paid by
such Underwriter with respect to such loss, liability, claim, damage or expense.
It is hereby acknowledged that the respective Underwriters' obligations under
this Section 9 shall be several and not joint. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's
officers and directors, shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company.
(b) The parties hereto agree that it would not be just
and equitable if contribution were determined by pro rata or per capita
allocation or by any other method of allocation that does not take account of
the considerations referred to in subsection (a) above. The amount paid or
payable by an indemnified party as a result of the losses, liabilities, claims
or damages referred to in Section 8 or this Section 9 shall be deemed to include
any legal fees and disbursements or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such claim
except where the indemnified party is required to bear such expenses, which
expenses the indemnifying party shall pay as and when incurred, at the request
of the indemnified party, to the extent that it is reasonable to believe that
the indemnifying party will be ultimately obligated to pay such expenses. In the
event that any expenses so paid by the indemnifying party are subsequently
determined to not be required to be borne by the indemnifying party hereunder,
the party which received such payment shall promptly refund the amount so paid
to the party which made such payment. The remedies provided for in Section 8 and
this Section 9 are not exclusive and shall not limit any rights or remedies that
may otherwise be available to any indemnified party at law or in equity.
(c) The contribution agreements contained in this
Section 9 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Company,
the Underwriters, any of their respective directors or officers, or any person
controlling the Company or the Underwriters, and (iii) acceptance of and payment
for any of the Underwritten Certificates.
-24-
10. DEFAULT BY AN UNDERWRITER. If any one or more
Underwriters shall fail to purchase and pay for any of the Underwritten
Certificates agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally (in the respective proportions which
the portion of the Underwritten Certificates set forth opposite their names in
Schedule II hereto bears to the aggregate amount of Underwritten Certificates
set forth opposite the names of all the remaining Underwriters) to purchase the
Underwritten Certificates that the defaulting Underwriter or Underwriters agreed
but failed to purchase; provided, however, that in the event that the amount of
Underwritten Certificates that the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate principal amount of
Underwritten Certificates set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Underwritten Certificates, and if such
nondefaulting Underwriters do not purchase all of the Underwritten Certificates,
this Agreement will terminate without liability to any nondefaulting Underwriter
or the Company, except as provided in Section 11 or Section 12. In the event of
a default by any Underwriter as set forth in this Section 10, the Closing Date
for the Underwritten Certificates shall be postponed for such period, not
exceeding ten business days, as you shall determine in order that the required
changes in the Registration Statement and the Prospectus Supplement or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter, or by or on behalf
of the Company, or by or on behalf of any of the controlling persons and
officers and directors referred to in Sections 8 and 9, and shall survive
delivery of the Underwritten Certificates to the Underwriters.
12. TERMINATION OF AGREEMENT; SURVIVAL.
(a) The Underwriters may terminate this Agreement, by
notice to the Company, at any time at or prior to the Closing Date (i) if there
has been, since the date of this Agreement or since the respective dates as of
which information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company or of Wachovia
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any outbreak of hostilities or escalation thereof or other calamity or
crisis the effect of which is such as to make it, in the reasonable judgment of
any Underwriter, impracticable to market the Underwritten Certificates or to
enforce contracts for the sale of the Underwritten Certificates, or (iii) if
trading in any securities of the Company or of Wachovia has been suspended or
limited by the Commission or the New York Stock Exchange, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or on
the Nasdaq National Market has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of
-25-
the Commission, the National Association of Securities Dealers, Inc. or any
other governmental authority, or (iv) if a banking moratorium has been declared
by either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party, except as provided in Section 11 or Section 12 (c).
(c) The provisions of Section 5(e) regarding the payment
of costs and expenses and the provisions of Sections 8 and 9 hereof shall
survive the termination of this Agreement, whether such termination is pursuant
to this Section 12 or otherwise.
13. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notice to
Wachovia Securities, Inc., shall be directed to it at 000 Xxxxx Xxxxxxx Xxxxxx,
Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0630, Attention: Xx.
Xxxxxxx X. Xxxxxx with a copy to Xxxxxxx X. Xxxxxxx, Esq. at 000 Xxxxx Xxxxxxx
Xxxxxx, Xxx Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0630; notice to Nomura Securities International, Inc. shall be directed to
it at 2 World Financial Center, Building B, New York, New York 10281-1198,
Attention: Legal Department; notice to Banc of America Securities LLC shall be
directed to it at Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xx. Xxxxx X. Xxxxxxx, with a
copy to Xxxxx X. Xxxxxx, Esq., at Bank of America Corporate Center, 000 Xxxxx
Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and with a copy to
Xxxxx X. XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000; notice to Wachovia shall be
directed to it at 000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0166, Attention: Xx. Xxxxxxx X. Xxxxxx and notice to the
Company shall be directed to it at Wachovia Commercial Mortgage Securities,
Inc., 000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0166, Attention: President; with copies in the case of the Company and
Wachovia to Xxxxxxx X. Xxxxxxx, Esq. at 000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxxx
Xxxxxx, Xxxxx Xxxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0630; with copies to
Xxxxxxxxxxx Xxxxx, Mayer, Brown, Xxxx & Maw, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 or, in either case, such other address as may
hereafter be furnished by the Underwriters, Wachovia or the Company to the other
such parties in writing.
14. PARTIES. This Agreement shall inure to the benefit of
and be binding upon each of the Underwriters, the Company and Wachovia and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and Wachovia and their respective successors
and the controlling persons and officers and directors referred to in Sections 8
and 9 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
Xxxxxxxx and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for
-26-
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.
-27-
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/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
The foregoing Agreement is hereby confirmed and accepted as of
the date first above written.
WACHOVIA SECURITIES, INC.
By: /s/ X. Xxxxx X'Xxxxxx
----------------------------------------
Name: X. Xxxxx X'Xxxxxx
Title: Vice President
NOMURA SECURITIES INTERNATIONAL, INC.
By: /s/ X. Xxxxx Xx Xxxxx
----------------------------------------
Name: X. Xxxxx Xx Xxxxx
Title: Managing Director
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Principal
EXHIBIT A
COMPUTATIONAL MATERIALS
[Form 8-K filed by Registrant on January 30, 2003, relating to the computations
materials is hereby incorporated by reference.]
EXHIBIT B
TERM SHEETS
[Form 8-K filed by Registrant on January 21, 2003, relating to a Term Sheet is
hereby incorporated by reference.]
SCHEDULE I
UNDERWRITING AGREEMENT DATED JANUARY 28, 2003:
As used in this Schedule I, the term "Registration Statement" refers to
registration statement No. 333-83930 filed by the Company on Form S-3 and
declared effective on March 19, 2002. The term "Basic Prospectus" refers to the
form of prospectus in the Registration Statement or such later form as most
recently filed by the Company pursuant to Rule 424(b) under the Securities Act
of 1933, as amended. The term "Prospectus Supplement" refers to the supplement
dated January 28, 2003, to the Basic Prospectus, relating to the mortgage
pass-through certificates being sold pursuant to the Underwriting Agreement (the
"Underwritten Certificates").
MORTGAGE POOL:
One hundred thirty (130) commercial and multifamily mortgage loans, having an
aggregate principal balance, after giving effect to payments of principal due on
or before February 11, 2003, of $937,264,149 as described in the Prospectus
Supplement, and otherwise complying in all material respects with the
description thereof set forth in the Prospectus Supplement.
TITLE, PURCHASE PRICE AND DESCRIPTION OF UNDERWRITTEN CERTIFICATES:
Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates Series 2003-C3, Class A-1, Class A-2, Class B, Class C, Class D and
Class E.
------------------------------------------------------------------------------------------------------
Closing Date Aggregate
Certificate Principal Initial Purchase Price
Designation Balance Pass-Through Rate Rating(1) Percentage(2)
----------- ------- ----------------- --------- -------------
------------------------------------------------------------------------------------------------------
Class A-1 $ 259,086,000 4.037% AAA/AAA
-------------------------------------------------------------------------------------------------------
Class A-2 $ 477,837,000 4.867% AAA/AAA
-------------------------------------------------------------------------------------------------------
Class B $ 36,319,000 4.973% AA/AA
-------------------------------------------------------------------------------------------------------
Class C $ 12,888,000 5.033% AA-/AA-
-------------------------------------------------------------------------------------------------------
Class D $ 25,775,000 5.072% A/A
-------------------------------------------------------------------------------------------------------
Class E $ 12,887,000 5.141% A-/A-
-------------------------------------------------------------------------------------------------------
----------
(1) By each of Fitch Ratings and Standard & Poor's Ratings Service, a
division of the XxXxxx-Xxxx Companies, Inc.
(2) There shall be added to the purchase price for each Class of
Underwritten Certificates accrued interest, if any, at the initial
Pass-Through Rate for such Class from February 1, 2003, up to, but not
including, the Closing Date.
Credit Support and Other Terms and Conditions of the Underwritten
Certificates: As described in the Prospectus Supplement.
Closing Date and Location: 10:00 a.m. (New York City time) on February
12, 2003, at the offices of Xxxxx, Brown, Xxxx & Maw, 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 January 28, 2003
Approximate Aggregate Principal Amount of each Class of Certificates to be
purchased by:
WACHOVIA SECURITIES, INC.
Class A-1 $ 180,247,000
Class A-2 $ 315,040,000
Class B $ 25,267,000
Class C $ 8,966,000
Class D $ 17,932,00
Class E $ 8,966,000
NOMURA SECURITIES INTERNATIONAL, INC.
Class A-1 $ 78,839,000
Class A-2 $ 137,797,000
Class B $ 11,052,000
Class C $ 3,922,000
Class D $ 7,843,000
Class E $ 3,921,000
BANC OF AMERICA SECURITIES LLC
Class A-1 $ 0
Class A-2 $ 25,000,000
Class B $ 0
Class C $ 0
Class D $ 0
Class E $ 0
