EXHIBIT 1.1
UNDERWRITING AGREEMENT
(Pass-Through Certificates)
New York, New York
, 200
[Lead Underwriter's name and address]
Ladies and Gentlemen:
Wachovia Mortgage Loan Trust, LLC (the "Company"), proposes to sell to the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you are acting as
representative (the "Representative"), the principal amount of the Pass-Through
Certificates, Series 200 - , identified in Schedule I hereto (the "Securities"), to be
issued under a pooling and servicing agreement (the "Pooling and Servicing Agreement")
dated as of , 200 , among the Company, , as servicer (in such
capacity, the "Servicer"), and , as trustee (the "Trustee").
Each class of Securities listed in Schedule I hereto will represent an
undivided beneficial ownership interest in the Trust 200 - (the "Trust").
The assets of the Trust will include, among other things, a pool of fixed-rate and
adjustable-rate one-to-four-family residential mortgage loans (the "Mortgage Loans")
transferred to the Company pursuant to a mortgage loan purchase agreement dated as
of , 200 (the "Mortgage Loan Purchase Agreement"), between and the
Company, and by the Company to the Trust pursuant to the Pooling and Servicing Agreement.
Custody of the Mortgage Files with respect to the Mortgage Loans will be maintained
by , as custodian (the "Custodian"). This Underwriting Agreement shall
hereinafter be referred to as the "Agreement." This Agreement, the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreement are collectively hereinafter referred to
as the "Basic Documents." Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement.
1. Representations and Warranties. (A) The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such Form (the file
number of which is set forth in Schedule I hereto), which has been declared effective by
the Commission, for the registration under the Act of the Securities. Such registration
statement, as amended to the date of this Agreement, meets the requirements set forth in
Rule 415(a)(1) under the Act and complies in all other material respects with said Rule.
The Company proposes to file with the Commission pursuant to Rule 424 under the Act a
supplement to the form of prospectus included in such registration statement relating to
the Securities and the plan of distribution thereof and has previously advised the
Representative of all further information (financial and other) with respect to the Company
to be set forth therein. Such registration statement, including the exhibits thereto, as
amended to the date of this Agreement, is hereinafter called the "Registration Statement";
such prospectus in the form in which it appears in the Registration Statement is
hereinafter called the "Base Prospectus"; and such supplemented form of prospectus,
supplemented by a prospectus supplement hereinafter called the "Prospectus Supplement", in
the form in which it shall be filed with the Commission pursuant to Rule 424 (including the
Base Prospectus as so supplemented) is hereinafter called the "Prospectus." Any reference
herein to the Registration Statement, the Base Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date of this Agreement, or the issue date of the Base
Prospectus or the Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement, the Base
Prospectus or the Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or the issue date of the
Base Prospectus or the Prospectus, as the case may be, and deemed to be incorporated
therein by reference pursuant to Item 12 of Form S-3 under the Act.
(b) As of the date hereof, when the Prospectus is first filed pursuant to
Rule 424 under the Act, when, prior to the Closing Date (as hereinafter defined), any
amendment to the Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when any supplement to
the Prospectus is filed with the Commission and at the Effective Date (as hereinafter
defined), (i) the Registration Statement, as amended as of any such time, and the
Prospectus, as amended or supplemented as of any such time, will comply in all material
respects with the requirements of the Act and the respective rules and regulations
thereunder, (ii) the Registration Statement, as amended as of any such time, will not
contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not misleading,
(iii) the Prospectus, as amended or supplemented as of any such time, will not contain any
untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; (iv) each Issuer Free Writing
Prospectus (as hereinafter defined), as amended or supplemented as of any such time prior
to the date of the related Prospectus Supplement, will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; and (v) the Base Prospectus and Designated Static
Pool Information (as hereinafter defined), taken together, as of the date of the related
Prospectus Supplement, will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or warranties as
to (A) the information contained in or omitted from the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf of any
Underwriter through the Representative specifically for use in connection with the
preparation of the Registration Statement and the Prospectus, (B) the Current Report (as
defined in Section 5(b) below), or in any amendment thereof or supplement thereto,
incorporated by reference in the Registration Statement or the Prospectus (or any amendment
thereof or supplement thereto), or (C) any information contained in any Underwriter
Prepared Issuer FWP (as hereinafter defined) or Underwriter Free Writing Prospectus (as
hereinafter defined), except, in each case, to the extent of (x) any information set forth
therein that constitutes Pool Information (as hereinafter defined) or (y) any information
accurately extracted from any Issuer Free Writing Prospectus and included in any
Underwriter Prepared Issuer FWP or Underwriter Free Writing Prospectus.
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(c) (i) "ABS Informational and Computational Materials" shall have the
meaning given such term in Item 1101 of Regulation AB.
(ii) "Approved Offering Materials" means with respect to any class of
Certificates, collectively the following documents as most recently provided by the Company
and designated in writing by the Company as Approved Offering Materials prior to the time
of any Contract of Sale: (i) one or more term sheets, providing factual information about
the Certificates and the structure and basic parameters thereof (excluding information
about the subdivision of the senior classes into tranches), the basic terms of the
subordination or other credit enhancements if known, factual information about the Mortgage
Loans (which may include parameters or "stips" or tabular data prepared by the Company),
the identity of and basic information about key parties to the transaction known to the
Company, and the tax, ERISA and SMMEA characteristics of the Certificates, (ii) a term
sheet supplement, containing risk factors and additional information of the type to appear
in the Prospectus Supplement to the extent known, and (iii) the Base Prospectus, which may
be provided by a weblink. Each of the items described in (i) and (ii) in the preceding
sentence shall constitute an Issuer Free Writing Prospectus and any additional information
provided by the Underwriter shall constitute an Underwriter Free Writing Prospectus or
Underwriter Prepared Issuer FWP, as the case may be.
(iii) "Contract of Sale" has the same meaning as in Rule 159 of the 1933
Act Regulations and all Commission guidance relating to Rule 159.
(iv) "Designated Static Pool Information" shall mean the static pool
information referred to in the Prospectus under the caption ["Static Pool Information"] but
deemed to be excluded from the Registration Statement and Prospectus pursuant to Item
1105(d) of Regulation AB.
(v) "Effective Date" shall mean the earlier of the date on which the
Prospectus is first used and the time of the first Contract of Sale (as hereinafter
defined) to which such Prospectus Supplement relates. The initial effective date of the
Registration Statement was within three years of the Closing Date (as hereinafter
defined). If the third anniversary of the initial effective date occurs within six months
after the Closing Date, the Company will use best efforts to take such action as may be
necessary or appropriate to permit the public offering and sale of the Certificates as
contemplated hereunder.
(vi) "Free Writing Prospectus" shall have the meaning given such term in
Rules 405 and 433 of the 1933 Act Regulations.
(vii) "Issuer Free Writing Prospectus" shall mean any Free Writing
Prospectus prepared by or on behalf of the Company and identified by the Company as an
Issuer Free Writing Prospectus and relating to the Certificates or the offering thereof.
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(viii) "Issuer Information" shall mean any information of the type
specified in clauses (1) - (5) of footnote 271 of Commission Release No. 33-8591
(Securities Offering Reform), other than Underwriter Derived Information. Consistent with
such definition, "Issuer Information" shall not be deemed to include any information in a
Free Writing Prospectus solely by reason of the Company's review of the materials pursuant
to Section 4.4(e) below and, consistent with Securities Offering Reform Questions and
Answers, November 30, 2005 promulgated by the staff of the Commission, "Issuer Information"
shall not be deemed to include any information in a Free Writing Prospectus solely by
reason that the Underwriter has agreed not to use such Free Writing Prospectus without
consent of the Company.
(ix) "Permitted Additional Materials" shall mean information that is not
ABS Informational and Computational Materials and (x) that are referred to in Section
4.4(c) so long as any Issuer Information provided by the Underwriter pursuant to Section
4.4(c) is limited to information included within the definition of ABS Informational and
Computational Materials, (y) that constitute Certificate price, yield, weighted average
life, subscription or allocation information, or a trade confirmation, or (z) otherwise
with respect to which the Company has provided written consent to the Underwriter to
include in a Free Writing Prospectus.
(x) "Pool Information" means with respect to any Free Writing
Prospectus, the information (including any Preliminary Pool Information) with respect to
the characteristics of the Mortgage Loans and administrative and servicing fees, as
provided by or on behalf of the Company to the Underwriter at the time most recent to the
date of such Free Writing Prospectus.
(xi) "Preliminary Pool Information" means with respect to any Free
Writing Prospectus, the information with respect to the characteristics of the Mortgage
Loans and administrative and servicing fees, as provided by or on behalf of the Company to
the Underwriter at the time most recent to the date of such Free Writing Prospectus and
designated "Preliminary Pool Information".
(xii) "Underwriter Derived Information" shall refer to information of the
type described in clause (5) of footnote 271 of Commission Release No. 33-8591 (Securities
Offering Reform) when prepared by the Underwriter, including traditional computational and
analytical materials prepared by the Underwriter.
(xiii) "Underwriter Free Writing Prospectus" shall mean all Free
Writing Prospectuses prepared by or on behalf of the Underwriter other than any Underwriter
Prepared Issuer FWP, including any Permitted Additional Materials.
(xiv) "Underwriter Prepared Issuer FWP" shall mean any Free Writing
Prospectus or portion thereof prepared by or on behalf of the Underwriter that contains
only a description of the final terms of the Certificates or of the offering of the
Certificates after the final terms have been established for all classes of Certificates.
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(xv) "Written Communication" shall have the meaning given such term in
Rule 405 of the 1933 Act Regulations.
(d) The Company has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware and has all
requisite power and authority to own its properties and conduct its business, as now
conducted by it, and to enter into and perform its obligations under this Agreement and the
other Basic Documents.
(e) The Company is not aware of (i) any request by the Commission for any
further amendment of the Registration Statement or the Base Prospectus or for any
additional information or (ii) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or threatening of any
proceeding for that purpose.
(f) This Agreement has been duly authorized, executed and delivered by the
Company, and the other Basic Documents, when delivered by the Company, will have been duly
authorized, executed and delivered by the Company, and will constitute a legal, valid and
binding agreement of the Company, enforceable against the Company in accordance with its
terms, subject, as to the enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium, receivership and similar laws affecting creditors' rights
generally and to general principles of equity (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law), and except as rights to
indemnity and contribution hereunder may be limited by federal or state securities laws or
principles of public policy.
(B) Each Underwriter represents and warrants to, and agrees with, the Company that:
(a) As of the date hereof and as of the Closing Date, the Underwriter has
complied with all of its obligations hereunder and all information contained in any
Underwriter Free Writing Prospectus and in any Underwriter Prepared Issuer FWP as used in
connection with any Contract of Sale are accurate in all material respects (taking into
account the assumptions explicitly set forth in such Underwriter Prepared Issuer FWP or
Underwriter Free Writing Prospectus), except to the extent of (x) any errors therein that
are caused by errors or omissions in the Pool Information or (y) information accurately
extracted from any Issuer Free Writing Prospectus and included in any Underwriter Prepared
Issuer FWP or Underwriter Free Writing Prospectus.
(b) Prior to the Closing Date, the Underwriter shall notify the Company of
the earlier of (x) the date on which the Prospectus Supplement is first used and (y) the
time of the first Contract of Sale to which such Prospectus Supplement relates.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally but not jointly, to purchase from
the Company, at the purchase price set forth in Schedule II hereto, the principal amount or
percentage interest of the Securities set forth opposite such Underwriter's name therein.
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3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at the office, on the date and at the time specified in Schedule I hereto, which
date and time may be postponed by agreement between the Representative and the Company or
as provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities shall be
made to the Representative for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representative of the purchase price
thereof in the manner set forth in Schedule II hereto. If Schedule I indicates that the
Securities are to be issued in book-entry form, delivery of the Securities shall be made
through the facilities of the depository or depositories set forth on Schedule I.
Alternatively, certificates for the Securities shall be registered in such names and in
such denominations as the Representative may request not less than three full business days
in advance of the Closing Date.
The Company agrees to have the Securities available for inspection, checking
and packaging by the Representative in New York, New York, not later than 1:00 p.m., New
York City time, on the business day prior to the Closing Date.
4. Offering by the Underwriters.
(a) It is understood by the parties hereto that, after the Registration
Statement becomes effective, the Underwriters propose to offer the Securities for sale to
the public (which may include selected dealers) as set forth in the Prospectus.
(b) It is understood that prior to the date of the first Contract of Sale
made based on the Approved Offering Materials, the Underwriters have not pledged, sold,
disposed of or otherwise transferred any Certificate, Mortgage Loans or any interest in any
Certificate.
(c) It is understood that the Underwriters will solicit offers to purchase
the Certificates as follows:
(i) Prior to the time the Underwriters have received the Approved
Offering Materials the Underwriters may, in compliance with the provisions of this
Agreement, solicit offers to purchase Certificates; provided, that the Underwriters shall
not accept any such offer to purchase a Certificate or any interest in any Certificate or
Mortgage Loan or otherwise enter into any Contract of Sale for any Certificate, any
interest in any Certificate or any Mortgage Loan prior to the Underwriters' conveyance of
Approved Offering Materials to the investor.
(ii) any Written Communication relating to the Certificates made by an
Underwriter in compliance with the terms of this Agreement prior to the time such
Underwriter has entered into a Contract of Sale for Certificates with the recipient shall
prominently set forth the following statements (or a substantially similar statements
approved by the Company):
The information in this free writing prospectus, if conveyed prior to the
time of the your contractual commitment to purchase any of the
Certificates, supersedes any information contained in any prior similar
materials relating to the Certificates. The information in this free
writing prospectus is preliminary, and is subject to completion or
change. This free writing prospectus is being delivered to you solely to
provide you with information about the offering of the Certificates
referred to in this free writing prospectus and to solicit an offer to
purchase the Certificates, when, as and if issued. Any such offer to
purchase made by you will not be accepted and will not constitute a
contractual commitment by you to purchase any of the Certificates, until
we have accepted your offer to purchase Certificates.
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The Certificates referred to in these materials are being sold when, as
and if issued. The issuer is not obligated to issue such Certificates or
any similar security and the underwriter's obligation to deliver such
Certificates is subject to the terms and conditions of the underwriting
agreement with the issuer and the availability of such Certificates when,
as and if issued by the issuer. You are advised that the terms of the
Certificates, and the characteristics of the mortgage loan pool backing
them, may change (due, among other things, to the possibility that
mortgage loans that comprise the pool may become delinquent or defaulted
or may be removed or replaced and that similar or different mortgage
loans may be added to the pool, and that one or more classes of
Certificates may be split, combined or eliminated), at any time prior to
issuance or availability of a final prospectus. You are advised that
Certificates may not be issued that have the characteristics described in
these materials. The underwriter's obligation to sell such Certificates
to you is conditioned on the mortgage loans and Certificates having the
characteristics described in these materials. If for any reason the
issuer does not deliver such Certificates, the underwriter will notify
you, and neither the issuer nor any underwriter will have any obligation
to you to deliver all or any portion of the Certificates which you have
committed to purchase, and none of the issuer nor any underwriter will be
liable for any costs or damages whatsoever arising from or related to
such non-delivery.
(iii) Any Preliminary Pool Information shall not be provided to
prospective investors unless such Preliminary Pool Information is accompanied by the
Approved Offering Materials and the following statements (or substantially similar
statements approved by the Company) appear prominently thereon:
The information set forth below, entitled "preliminary information", was
derived from a preliminary pool of mortgage loans which is not
representative of the mortgage loans that will comprise the final
mortgage loan pool. The preliminary pool of mortgage loans represents
only a subset of the final mortgage loan pool and mortgage loans that are
included in the preliminary mortgage loan pool may be removed from the
final mortgage loan pool. It is expected that the characteristics of the
final mortgage loan pool will differ, and may differ materially, from the
characteristics of the preliminary pool of mortgage loans and the
preliminary information may differ materially from information of a
similar type if derived from the final mortgage loan pool. Although the
characteristics of the final mortgage loan pool are expected to be within
the parameters for the mortgage loan characteristics as set forth in the
tables entitled ["collateral stipulations - mortgage pool
characteristics"] [accompanying Approved Offering Materials], they are
not expected to conform in all material respects to the characteristics
of the preliminary mortgage loan pool. You should refer to the
parameters for the mortgage loan characteristics in the tables entitled
["collateral stipulations - mortgage pool characteristics"] in the
accompanying [Approved Offering Materials] [for use in February deals].
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(iv) It is understood that the Underwriters will not enter into a
Contract of Sale with any investor until the Approved Offering Materials have been conveyed
to the investor with respect to the Certificates which are the subject of such Contract of
Sale.
(d) It is understood that you may prepare and provide to prospective
investors certain Free Writing Prospectuses, subject to the following conditions:
(i) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, the Underwriter shall not convey or deliver any
Written Communication to any person in connection with the initial offering of the
Certificates, unless such Written Communication (i) is made in reliance on Rule 134 under
the Act, (ii) constitutes a prospectus satisfying the requirements of Rule 430B under the
Act or (iii) constitutes a Free Writing Prospectus (as defined in Section 1(c) above)
consisting solely of (x) information of a type included within the definition of ABS
Informational and Computational Materials (as defined below), (y) Permitted Additional
Materials or (z) information accurately extracted from any Issuer Free Writing Prospectus
and included in any Underwriter Prepared Issuer FWP or Underwriter Free Writing Prospectus.
(ii) The Underwriter shall comply with all applicable laws and
regulations in connection with the use of Free Writing Prospectuses, including but not
limited to Rules 164 and 433 of the 1933 Act Regulations and all Commission guidance
relating to Free Writing Prospectuses, including but not limited to Commission Release No.
33-8591.
(iii) It is understood and agreed that all information provided by the
Underwriter to or through Bloomberg or Intex or similar entities for use by prospective
investors, or imbedded in any CDI file provided to prospective investors, to the extent
constituting a Free Writing Prospectus, shall be deemed an Underwriter Free Writing
Prospectus.
(iv) All Free Writing Prospectuses provided to prospective investors,
whether or not filed with the Commission, shall bear a legend including the following
statement (or a substantially similar statement approved by the Company):
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"XXX XXXXXXXXX HAS FILED A REGISTRATION STATEMENT (INCLUDING
A PROSPECTUS) WITH THE SECURITIES AND EXCHANGE COMMISSION
(THE SEC) FOR THE OFFERING TO WHICH THIS COMMUNICATION
RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS
IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS THE
DEPOSITOR HAS FILED WITH THE SEC FOR MORE COMPLETE
INFORMATION ABOUT THE DEPOSITOR AND THE OFFERING. YOU MAY
GET THESE DOCUMENTS AT NO CHARGE BY VISITING XXXXX ON THE SEC
WEB SITE AT XXX.XXX.XXX. ALTERNATIVELY, THE DEPOSITOR, ANY
UNDERWRITER OR ANY DEALER PARTICIPATING IN THE OFFERING WILL
ARRANGE TO SEND YOU THE PROSPECTUS AT NO CHARGE IF YOU
REQUEST IT BY CALLING TOLL-FREE 0-000-000-0000."
Each of the Underwriter and the Company shall have the right to request additional
specific legends or notations to appear on any Free Writing Prospectus and shall have the
right to require changes regarding the use of terminology and the right to determine the
types of information appearing therein with the approval of the other (which shall not be
unreasonably withheld).
(v) The Underwriter shall provide the Company with a letter from
[_________], certified public accountants, prior to the Closing Date, satisfactory in form
and substance to the Company and its counsel and the Underwriter, to the effect that such
accountants have performed certain specified procedures, all of which have been agreed to
by the Company and the Underwriter, as a result of which they determined that certain
information of an accounting, financial or statistical nature that is included in any
Underwriter Prepared Issuer FWP, other than any Pool Information therein and any
information accurately extracted from any Issuer Free Writing Prospectus and included in
such Underwriter Prepared Issuer FWP, is accurate except as to such matters that are not
deemed by the Company and the Underwriter to be material. The foregoing letter shall be at
the expense of the Underwriter.
(vi) None of the information in any Free Writing Prospectus may conflict
with the information then contained in the Registration Statement or any prospectus or
prospectus supplement that is a part thereof. The Certificates described in any
Underwriter Free Writing Prospectus or any Underwriter Prepared Issuer FWP will be of a
type set forth in one of the categories listed beneath the heading "Description of
Certificates" in the term sheet supplement included in the Approved Offering Materials and
the description of the characteristics of the Certificates contained in such Underwriter
Free Writing Prospectus or any Underwriter Prepared Issuer FWP shall not be inconsistent
with the description of the Certificates beneath such heading in the term sheet supplement.
(vii) The Company shall not be obligated to file any Issuer Free Writing
Prospectuses that have been determined to contain any material error or omission unless
such Issuer Free Writing Prospectus has been provided to a prospective investor, in which
case, the Underwriter shall cooperate with the Company to prepare a corrective Issuer Free
Writing Prospectus that the Underwriter will provide to any such prospective investor and
the Company shall file to the extent required herein. In the event that the Underwriter
becomes aware that, as of the date on which an investor entered into a Contract of Sale,
any Free Writing Prospectus prepared by or on behalf of the Underwriter and delivered to
such investor contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading (such Free Writing Prospectus, a
"Defective Free Writing Prospectus"), the Underwriter shall notify the Company thereof as
soon as practical but in any event within one business day after discovery.
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(viii) If the Underwriter does not provide any Free Writing
Prospectuses to the Company pursuant to subsection (v) above, the Underwriter shall be
deemed to have represented, as of the Closing Date, that it did not provide any prospective
investors with any information in written or electronic form in connection with the
offering of the Certificates that would constitute an Underwriter Prepared Issuer FWP.
(ix) In the event of any delay in the delivery by the Underwriter to the
Company of any Underwriter Prepared Issuer FWP required to be delivered in accordance with
subsection (v) above, or in the delivery of the accountant's comfort letter in respect
thereof pursuant to subsection (vi) above, the Company shall have the right to delay the
release of the Prospectus to investors or to the Underwriter, to delay the Closing Date and
to take other appropriate actions in each case as necessary in order to allow the Company
to comply with its agreement set forth in Section 5(a) to file such Underwriter Prepared
Issuer FWP by the time specified therein.
(x) The Underwriter represents that it has in place, and covenants that
it shall maintain, internal controls and procedures which it reasonably believes to be
sufficient to ensure full compliance with all applicable legal requirements of the 1933 Act
Regulations with respect to the generation and use of Free Writing Prospectuses in
connection with the offering of the Certificates. In addition, each Underwriter shall, for
a period of at least three years after the date hereof, maintain written and/or electronic
records of the following:
(1) any Free Writing Prospectus used by the Underwriter to
solicit offers to purchase Certificates to the extent not filed with the
Commission;
(2) regarding each Free Writing Prospectus delivered by the
Underwriter to an investor, the date of such delivery and identity of such
investor; and
(3) regarding each Contract of Sale entered into by such
Underwriter, the date, identity of the investor and the terms of such Contract
of Sale, as set forth in the related confirmation of trade.
(xi) The Underwriter covenants with the Company that after the final
Prospectus is available the Underwriter shall not distribute any written information
concerning the Certificates to a prospective investor unless such information is preceded
or accompanied by the final Prospectus. It is understood and agreed that the use of
written information in accordance with the preceding sentence is not a Free Writing
Prospectus and is not otherwise restricted or governed in any way by this Agreement.
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(xii) The Underwriter shall not use any Free Writing Prospectus in
connection with the solicitation of offers to purchase Certificates from any prospective
investor in a class of Certificates with denominations of less than $25,000 or otherwise
designated as a "retail" class of Certificates, and the Underwriter shall not authorize any
such use of any Free Writing Prospectus by any dealer that purchases any such Certificates
from the Underwriter.
(e) The Underwriter agrees that (i) if the Prospectus is not delivered with
the confirmation in reliance on Rule 172, it will include in every confirmation sent out
the notice required by Rule 173 informing the investor that the sale was made pursuant to
the Registration Statement and that the investor may request a copy of the Prospectus from
the Underwriter; (ii) if a paper copy of the Prospectus is requested by a person who
receives a confirmation, Underwriter shall deliver a printed or paper copy of such
Prospectus; and (iii) if an electronic copy of the Prospectus is delivered by the
Underwriter for any purpose, such copy shall be the same electronic file containing the
Prospectus in the identical form transmitted electronically to the Underwriter by or on
behalf of the Company specifically for use by the Underwriter pursuant to this Section
4(e); for example, if the Prospectus is delivered to the Underwriter by or on behalf of the
Company in a single electronic file in pdf format, then the Underwriter will deliver the
electronic copy of the Prospectus in the same single electronic file in pdf format. The
Underwriter further agrees that (i) if it delivers to an investor the Prospectus in pdf
format, upon the Underwriter's receipt of a request from the investor within the period for
which delivery of the Prospectus is required, the Underwriter will promptly deliver or
cause to be delivered to the investor, without charge, a paper copy of the Prospectus and
(ii) it will provide to the Company any Underwriter Prepared Issuer FWP, or portions
thereof, which the Company is required to file with the Commission in electronic format and
will use reasonable efforts to provide to the Company such Underwriter Prepared Issuer FWP,
or portions thereof, in either Microsoft Word(R) or Microsoft Excel(R) format and not in a pdf,
except to the extent that the Company, in its sole discretion, waives such requirements.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company
will not file any amendment of the Registration Statement or supplement (including the
Prospectus) to the Base Prospectus unless the Company has furnished the Representative a
copy for its review prior to filing and will not file any such proposed amendment or
supplement to which the Representative reasonably objects. Subject to the foregoing
sentence, the Company will cause the Prospectus to be filed with the Commission pursuant to
Rule 424. The Company will advise the Representative promptly (i) when the Prospectus
shall have been filed with the Commission pursuant to Rule 424, (ii) when any amendment to
the Registration Statement relating to the Securities shall have become effective, (iii) of
any request by the Commission for any amendment of the Registration Statement or amendment
of or supplement to the Prospectus or for any additional information, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof.
-11-
(b) The Company will use its best efforts to cause any Computational
Materials, Collateral Term Sheets and ABS Term Sheets (each as defined in Section 10 below)
with respect to the Securities which are delivered by the Underwriters to the Company
pursuant to Section 10 to be filed with the Commission on a Current Report on Form 8-K (the
"Current Report") pursuant to Rule 13a-11 under the Exchange Act not later than the
business day immediately following the day on which such Computational Materials,
Collateral Term Sheets or ABS Term Sheets are delivered to counsel for the Company by the
Underwriters as provided in Section 10, and will promptly advise the Underwriter when such
Current Report has been so filed. Such Current Report shall be incorporated by reference
in the Prospectus and the Registration Statement. Notwithstanding the two preceding
sentences, the Company shall have no obligation to file materials provided by the
Underwriters pursuant to Section 10 which, in the reasonable determination of the Company
after making reasonable efforts to consult with the Underwriters, are not required to be
filed pursuant to the No-Action Letters (as defined in Section 10 below), or which contain
erroneous information or contain any untrue statement of a material fact or, which, when
read in conjunction with the Prospectus, omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to review or pass upon the
accuracy or adequacy of, or to correct, any Computational Materials, Collateral Term Sheets
or ABS Term Sheets provided by the Underwriters to the Company pursuant to Section 10
hereof.
(c) If, at any time when a prospectus relating to the Securities is required
to be delivered under the Act, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it shall be necessary to
amend or supplement the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this Section 5, an amendment
or supplement which will correct such statement or omission or an amendment which will
effect such compliance and will use its best efforts to cause any required post-effective
amendment to the Registration Statement containing such amendment to be made effective as
soon as possible; provided, however, that the Company will not be required to file any such
amendment or supplement with respect to any Computational Materials incorporated by
reference in the Prospectus other than any amendments or supplements of such Computational
Materials that are furnished to the Company pursuant to Section 10(d) hereof which the
Company determines to file in accordance therewith.
(d) The Company will furnish to the Representative and counsel for the
Underwriters, without charge, executed copies of the Registration Statement (including
exhibits thereto) and each amendment thereto which shall become effective on or prior to
the Closing Date and, so long as delivery of a prospectus by the Underwriter or dealer may
be required by the Act, as many copies of the Prospectus and any amendments thereof and
supplements thereto (other than exhibits to the related Current Report) as the
Representative may reasonably request; provided, however, that if the Prospectus is not
delivered with the confirmation in reliance on Rule 172, the Underwriter will provide the
notice specified in Section 4(e) in every confirmation and will deliver a paper copy of the
prospectus to those investors that request a paper copy thereof. The Company will pay the
expenses of printing all documents relating to the initial offering[, provided that any
additional expenses incurred in connection with the requirement of delivery of a
market-making prospectus, if required, will be borne by the Underwriters].
-12-
(e) The Company will furnish such information as may be required and
otherwise cooperate in qualifying the Securities for sale under the laws of such
jurisdictions as the Representative may reasonably designate and to maintain such
qualifications in effect so long as required for the distribution of the Securities;
provided, however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would subject it
to general or unlimited service of process in any jurisdiction where it is not now so
subject.
(f) The Company will pay all expenses (other than fees of counsel for the
Underwriters, except as provided herein) incident to the performance of the obligations
under this Underwriting Agreement, including:
(i) the word processing, printing and filing of the Registration
Statement as originally filed and of each amendment thereto;
(ii) the reproduction of this Underwriting Agreement;
(iii) the preparation, printing, issuance and delivery of the Securities
to the Underwriters;
(iv) the fees and disbursements of counsel and accountants for the
Company;
(v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 5(e) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of a blue sky survey, if requested by the
Representative;
(vi) if requested by the Representative, the determination of the
eligibility of the Securities for investment and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the preparation
of a legal investment memorandum;
(vii) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, of the
preliminary prospectuses, and of the Base Prospectus and Prospectus and any amendments or
supplements thereto;
-13-
(viii) if requested by the Representative, the printing and delivery
to the Underwriters of copies of any blue sky or legal investment memorandum;
(ix) the fees of any rating agency rating the Securities; and
(x) the fees and expenses of the Trustee, the Servicer, the Custodian
and their counsel.
(g) The Company shall file any Issuer Free Writing Prospectus, and any
Underwriter Prepared Issuer FWP provided to it by the Underwriter under Section 4(d), not
later than the date of first use thereof, except that:
(i) any Issuer Free Writing Prospectus or Underwriter Prepared Issuer
FWP or portion thereof otherwise required to be filed that contains only (1) a description
of the final terms of the Certificates may be filed by the Company within two days of the
later of the date such final terms have been established for all classes of Certificates
and the date of first use, and (2) a description of the terms of the Certificates that does
not reflect the final terms after they have been established for all classes of all
Certificates is not required to be filed; and
(ii) if the Issuer Free Writing Prospectus or Underwriter Prepared
Issuer FWP includes only information of a type included in the definition of ABS
Informational and Computational Materials, the Company shall file the same within the later
of two business days after the Underwriter first provides this information to investors and
the date upon which the Company is required to file the Prospectus Supplement with the
Commission pursuant to Rule 424(b)(3) of the Act.
provided further, that prior to the filing of any Underwriter Prepared Issuer FWP by
the Company, the Underwriter must comply with its obligations pursuant to Section 4.4 and
that the Company shall not be required to file any Free Writing Prospectus to the extent
such Free Writing Prospectus includes information in a Free Writing Prospectus or
Prospectus previously filed with the Commission or that does not contain substantive
changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(h) The Underwriter shall file any Underwriter Free Writing Prospectus that
has been distributed by the Underwriter in a manner reasonably designed to lead to its
broad, unrestricted dissemination within the later of two business days after the
Underwriter first provides this information to investors and the date upon which the
Company is required to file the Prospectus Supplement with the Commission pursuant to Rule
424(b)(3) of the Act or otherwise as required under Rule 433 of the Act; provided, however,
that the Underwriter shall not be required to file any Underwriter Free Writing Prospectus
to the extent such Underwriter Free Writing Prospectus includes information in a Free
Writing Prospectus or Prospectus previously filed with the Commission or that does not
contain substantive changes from or additions to a Free Writing Prospectus previously filed
with the Commission.
6. Conditions Precedent to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company contained herein as of the
date hereof, as of the date of the effectiveness of any amendment to the Registration
Statement filed prior to the Closing Date (including the filing of any document
incorporated by reference therein) and as of the Closing Date, to the accuracy of the
statements of the Company made in any certificates delivered pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to the following
additional conditions:
-14-
(a) The Underwriters shall have received from (i) a letter,
dated the date hereof, confirming that they are independent public accountants within the
meaning of the Act and the Rules and Regulations and otherwise in form and substance
reasonably satisfactory to the Underwriters and counsel for the Underwriters and (ii) a
letter dated the Closing Date, updating the letters referred to in clause (i) above, in
form and substance reasonably satisfactory to the Underwriters and counsel for the
Underwriters.
(b) All actions required to be taken and all filings required to be made by
the Company under the Act prior to the sale of the Securities shall have been duly taken or
made. At and prior to the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Company or the Underwriters, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective change, in or
affecting particularly the business or properties of the Company or the Servicer which, in
the reasonable judgment of the Underwriters, materially impairs the investment quality of
the Securities; (ii) any downgrading in the rating of the securities of the Company by any
"nationally recognized statistical rating organization" (as such term is defined for
purposes of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any securities of the Company
(other than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any suspension or limitation
of trading in securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange; (iv) any banking moratorium declared by
federal, New York or North Carolina authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if, in the reasonable
judgment of the Underwriters, the effects of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with completion of the
sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion
of , counsel to the Servicer and the Seller addressed to the Underwriters,
dated the Closing Date in form and substance reasonably satisfactory to the Underwriters
and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of [Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP], special tax counsel for the Company, addressed to the
Underwriters and dated the Closing Date and reasonably satisfactory in form and substance
to the Underwriters, generally to the effect that (i) the information in the Base
Prospectus under "Federal Income Tax Consequences" and in the Prospectus under "Federal
Income Tax Consequences," insofar as such information describes federal statutes and
regulations or otherwise constitute matters of law or legal conclusions of the statutes or
regulations of such jurisdiction have been prepared or reviewed by such counsel, and such
information is correct in all material respects; and (ii) assuming compliance with all of
the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust
will qualify as one or more REMICs, and the portion of the Trust exclusive of such REMICs
will constitute a grantor trust, pursuant to Section 860D of the Internal Revenue Code of
1986 (the "Code") for federal income tax purposes as of the Closing Date and will continue
to qualify as one or more REMICs and as a grantor trust for so long as the Trust continues
to meet the requirements set forth in the Code and applicable Treasury regulations.
-15-
(f) The Underwriters shall have received a favorable opinion of [Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP], special counsel for the Company, addressed to the Underwriters
and dated the Closing Date and reasonably satisfactory in form and substance to the
Underwriters, with respect to the validity of the Certificates, ERISA matters and such
other related matters as the Underwriters shall require, and the Company shall have
furnished or caused to be furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel for
the Trustee, addressed to the Underwriters and dated the Closing Date and reasonably
satisfactory in form and substance to the Underwriters and counsel for the Underwriters,
with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for
the Custodian, addressed to the Underwriters and dated the Closing Date and reasonably
satisfactory in form and substance to the Underwriters and counsel to the Underwriters,
with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a certificate dated the Closing Date
of the President, any Vice President or the Secretary of the Company in which the officer
shall state that, to the best of his or her knowledge after reasonable investigation, (i)
the representations and warranties of the Company with respect to the Mortgage Loans
contained in any Basic Document are true and correct, (ii) the representations and
warranties of the Company in this Agreement are true and correct, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued, (v) no proceedings for that
purpose have been instituted or are contemplated by the Commission, and (vi) there has been
no amendment or other document filed affecting the certificate of formation or limited
liability company agreement of the Company, and no such amendment has been authorized.
(j) On or before the Closing Date, the Underwriters shall have received
evidence satisfactory to the Underwriters that each class of Securities has been given the
ratings set forth on Schedule I hereto.
-16-
(k) At the Closing Date, the Securities and the Pooling and Servicing
Agreement will conform in all material respects to the descriptions thereof contained in
the Prospectus.
(l) The Underwriters shall not have discovered and disclosed to the Company
on or prior to the Closing Date that the Registration Statement or the Prospectus or any
amendment or supplement thereto contains an untrue statement of a fact or omits to state a
fact which, in the opinion of [Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP], counsel for the
Underwriters, is material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(m) All proceedings and other legal matters relating to the authorization,
form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities,
the Registration Statement and the Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all
respects to counsel for the Underwriters, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request to enable them to
pass upon such matters.
(n) At the Closing Date, the Underwriters shall have received from [Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP], counsel for the Underwriters, a letter with respect to the
Prospectus, in form and substance satisfactory to the Underwriters.
The Company will provide or cause to be provided to the Underwriters such
conformed copies of such opinions, certificates, letters and documents as the Underwriters
may reasonably request.
All opinions, letters, evidence and certificates mentioned above or elsewhere
in this Agreement shall be deemed to be in compliance with the provisions hereof only if
they are in form and substance reasonably satisfactory to counsel for the Underwriters.
If any condition specified in this Section 6 shall not have been fulfilled when
and as required to be fulfilled, this Agreement may be terminated by the Underwriters by
notice to the Company at any time at or prior to the Closing Date, and such termination
shall be without liability of any party to any other party except as provided in Section 7
hereof.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution.
-17-
(a) The Company agrees to indemnify and hold harmless any Underwriter and
each person who controls the Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) (i) arise out of or
are based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Securities as
originally filed or in any amendment thereof, or in the Base Prospectus or the Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based upon an
omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading, or (ii) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any Issuer Free Writing
Prospectus, or any omission or alleged omission to state therein a material fact necessary
to make the statements therein, in light of the circumstances under which they were made,
not misleading, or (iii) arise out of or are based upon any untrue statement of a material
fact or alleged untrue statement of a material fact contained in any Underwriter Prepared
Issuer FWP or any Underwriter Free Writing Prospectus or any omission or alleged omission
to state therein a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, that in either case was caused by
(x) any error or omission in any Pool Information or (y) or any information accurately
extracted from any Issuer Free Writing Prospectus and included in any Underwriter Prepared
Issuer FWP or Underwriter Free Writing Prospectus, and agree to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission made therein
(A) in reliance upon and in conformity with written information furnished to the Company by
or on behalf of any Underwriter through the Representative specifically for use in
connection with the preparation thereof or (B) in any Current Report or any amendment or
supplement thereof, except to the extent that any untrue statement or alleged untrue
statement therein results (or is alleged to have resulted) directly from an error (a
"Collateral Error") in the information concerning the Mortgage Loans furnished by the
Company to any Underwriter in writing or by electronic transmission that was used in the
preparation of any Computational Materials, Collateral Term Sheets or ABS Term Sheets
included in such Current Report (or amendment or supplement thereof), (ii) such indemnity
with respect to the Base Prospectus shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Securities which are the subject thereof if such
person did not receive a copy of the Prospectus (or the Prospectus as amended or
supplemented) excluding documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any case where such delivery
is required by the Act and the untrue statement or omission of a material fact contained in
the Base Prospectus was corrected in the Prospectus (or the Prospectus as amended or
supplemented), and (iii) such indemnity with respect to any Collateral Error shall not
inure to the benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any loss, claim, damage or liability received any Computational
Materials, Collateral Term Sheets or ABS Term Sheets that were prepared on the basis of
such Collateral Error, if, prior to the time of confirmation of the sale of the Securities
to such person, the Company notified the Underwriter in writing of the Collateral Error or
provided in written or electronic form information superseding or correcting such
Collateral Error (in any such case, a "Corrected Collateral Error"), and such Underwriter
failed to notify such person thereof or to deliver such person corrected Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets, as applicable. This indemnity
agreement will be in addition to any liability which the Company may otherwise have.
-18-
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors and its officers who sign the Registration Statement, and each
person who controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each Underwriter, but
only with reference to (A) written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representative specifically for
use in the preparation of the documents referred to in the foregoing indemnity, or (B) any
Computational Materials, Collateral Term Sheets or ABS Term Sheets furnished to the Company
by any Underwriter pursuant to Section 10 and incorporated by reference in the Registration
Statement or the Prospectus (except that no such indemnity shall be available for any
losses, claims, damages or liabilities, or actions in respect thereof resulting from any
Collateral Error, other than a Corrected Collateral Error). This indemnity agreement will
be in addition to any liability which the Underwriter may otherwise have. The Company
acknowledges that the statements set forth in (i) the first sentence of the last paragraph
on the front cover of the Prospectus and (ii) in the first sentence of the second and third
paragraphs under the heading "Method of Distribution" in the Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for inclusion
in the documents referred to in the foregoing indemnity (other than any Computational
Materials, Collateral Term Sheets or ABS Term Sheets furnished to the Company by any
Underwriter), and you, as the Representative, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 8. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate therein, and,
to the extent that it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assert such legal defenses and
to otherwise participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying party to such indemnified party
of its election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such indemnified party under
this Section 8 for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal defenses in accordance
with the proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one separate counsel
(exclusive of any local counsel), approved by the Representative in the case of
subparagraph (a), representing the indemnified parties under subparagraph (a) who are
parties to such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i) or (iii).
-19-
(d) To provide for just and equitable contribution in circumstances in which
the indemnification provided for in paragraph (a) or (b) of this Section 8 is due in
accordance with its terms but is for any reason held by a court to be unavailable from the
Company or the Underwriters on the grounds of policy or otherwise, the Company and the
Underwriters shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the Underwriters may be subject, as
follows:
(i) in the case of any losses, claims, damages and liabilities (or
actions in respect thereof) which do not arise out of or are not based upon any
untrue statement or omission of a material fact in any Computational Materials,
Collateral Term Sheets or ABS Term Sheets, in such proportion so that the
Underwriters are responsible for that portion represented by the percentage
that the underwriting compensation received by them bears to the sum of such
underwriting compensation and the purchase price of the Securities specified in
Schedule II hereto and the Company is responsible for the balance; provided,
however, that in no case shall any Underwriter (except as may be provided in
any agreement among underwriters relating to the offering of the Securities) be
responsible under this subparagraph (i) for any amount in excess of the
underwriting compensation applicable to the Securities purchased by such
Underwriter hereunder; and
(ii) in the case of any losses, claims, damages and liabilities (or
actions in respect thereof) which arise out of or are based upon any untrue
statement or omission of a material fact in any Computational Materials,
Collateral Term Sheets or ABS Term Sheets, in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof) as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact in such Computational Materials,
Collateral Term Sheets or ABS Term Sheets results from information prepared by
the Company on the one hand or the Underwriters on the other and that party's
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
-20-
Notwithstanding anything to the contrary in this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an Underwriter
within the meaning of either the Act or the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the preceding sentence of
this paragraph (d). Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or parties from
whom contribution may be sought from any other obligation it or they may have hereunder or
otherwise than under this paragraph (d).
9. Default by One or More of the Underwriters. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder (the "Defaulted Securities") and
such failure to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted Securities in
such amounts as may be agreed upon and upon the terms herein set forth; if, however, the
Representative shall not have completed such arrangements within such 24-hour period, then
the remaining Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth opposite their names in
Schedule II hereto bear to the aggregate amount of Securities set forth opposite the names
of all the remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement will
terminate without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Representative shall determine
in order that the required changes in the Registration Statement and the Prospectus or in
any other documents or arrangements may be effected. No action taken pursuant to this
Section 9 shall relieve any defaulting Underwriter from its liability in respect of its
default.
10. Computational Materials and ABS Term Sheets.
-21-
(a) Not later than 10:30 a.m., New York City time, on a date no later than
four business days before delivery of the Prospectus to the Underwriters, the Underwriters
shall deliver to the Company five complete copies of all materials provided by the
Underwriters to prospective investors in the Securities which constitute either (i)
"Computational Materials" within the meaning of the no-action letter dated May 20, 1994
issued by the Division of Corporation Finance of the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated, and Xxxxxx Structured Asset
Corporation and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association (together, the
"Xxxxxx Letters") or (ii) "ABS Term Sheets" within the meaning of the no-action letter
dated February 17, 1995 issued by the Division of Corporation Finance of the Commission to
the Public Securities Association (the "PSA Letter" and together with the Xxxxxx Letters,
the "No-Action Letters"), if the filing of such materials with the Commission is a
condition of the relief granted in such letters. In the case of any such materials that
constitute "Collateral Term Sheets" within the meaning of the PSA Letter, if such
Collateral Term Sheets have not previously been delivered to the Company as contemplated by
Section 10(b)(i) below, five complete copies of such Collateral Term Sheets shall be
delivered by the Underwriters to the Company no later than 10:30 a.m., New York City time,
on the first business day following the date on which such Collateral Term Sheets were
initially provided to a potential investor. Each delivery of Computational Materials,
Collateral Term Sheets and/or ABS Term Sheets to the Company pursuant to this paragraph (a)
shall be effected by delivering four copies of such materials to counsel for the Company on
behalf of the Company at the address specified in Section 13 hereof and one copy of such
materials to the Company.
(b) The Underwriters represent and warrant to and agree with the Company, as
of the date hereof and as of the Closing Date, that:
(i) if an Underwriter has provided any Collateral Term Sheets to
potential investors in the Securities prior to the date hereof and if the
filing of such materials with the Commission is a condition of the relief
granted in the PSA Letter, then in each such case such Underwriter delivered
four copies of such materials to counsel for the Company on behalf of the
Company at the address specified in Section 13 hereof and one copy of such
materials to the Company no later than 10:30 a.m., New York City time, on the
first business day following the date on which such materials were initially
provided to a potential investor;
(ii) the Computational Materials (either in original, aggregated or
consolidated form), Collateral Term Sheets and ABS Term Sheets furnished to the
Company pursuant to Section 10(a) or as contemplated in Section 10(b)(i)
constitute all of the materials furnished to prospective investors by the
Underwriters (whether in written, electronic or other format) prior to the time
of delivery thereof to the Company with respect to the Securities in accordance
with the No-Action Letters, and such Computational Materials, Collateral Term
Sheets and ABS Term Sheets comply with the requirements of the No-Action
Letters;
(iii) except as resulting directly from any Collateral Error, on the
respective dates any such Computational Materials, Collateral Term Sheets
and/or ABS Term Sheets with respect to the Securities were last furnished to
each prospective investor and on the date of delivery thereof to the Company
pursuant to this Section 10 and on the Closing Date, such Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets did not and will not
include any untrue statement of a material fact, or, when read in conjunction
with the Prospectus, omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
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(iv) all Computational Materials, Collateral Term Sheets and ABS Term
Sheets contained and will contain a legend, prominently displayed on the first
page thereof, to the effect that the Company has not prepared, reviewed or
participated in the preparation of such Computational Materials, Collateral
Term Sheets or ABS Term Sheets, is not responsible for the accuracy thereof and
has not authorized the dissemination thereof;
(v) all Collateral Term Sheets with respect to the Securities furnished
to potential investors contained and will contain a legend, prominently
displayed on the first page thereof, indicating that the information contained
therein will be superseded by the description of the Mortgage Loans contained
in the Prospectus and, except in the case of the initial Collateral Term Sheet,
that such information supersedes the information in all prior Collateral Term
Sheets; and
(vi) on and after the date hereof, the Underwriters shall not deliver or
authorize the delivery of any Computational Materials, Collateral Term Sheets,
ABS Term Sheets or other materials relating to the Securities (whether in
written, electronic or other format) to any potential investor unless such
potential investor has received a Prospectus prior to or at the same time as
the delivery of such Computational Materials, Collateral Term Sheets, ABS Term
Sheets or other materials.
Notwithstanding the foregoing, the Underwriters make no representation or warranty as to
whether any Computational Materials, Collateral Term Sheets or ABS Term Sheets included or
will include any untrue statement resulting directly from any Collateral Error (except any
Corrected Collateral Error, with respect to materials prepared after the receipt by the
Underwriter from the Company of notice of such Corrected Collateral Error or materials
superseding or correcting such Collateral Error).
(c) The Underwriters acknowledge and agree that the Company has not
authorized and will not authorize the distribution of any Computational Materials,
Collateral Term Sheets or ABS Term Sheets to any prospective investor, and agree that any
Computational Materials, Collateral Term Sheets or ABS Term Sheets with respect to the
Securities furnished to prospective investors shall include a disclaimer in the form set
forth in paragraph (b)(v) above. The Underwriters agree that they will not represent to
investors that any Computational Materials, Collateral Term Sheets and/or ABS Term Sheets
were prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the Securities is required
to be delivered under the Act, it shall be necessary to amend or supplement the Prospectus
as a result of an untrue statement of a material fact contained in any Computational
Materials, Collateral Term Sheets or ABS Term Sheets provided by the Underwriters pursuant
to this Section 10 or the omission to state therein a material fact required, when
considered in conjunction with the Prospectus, to be stated therein or necessary to make
the statements therein, when read in conjunction with the Prospectus, not misleading, or if
it shall be necessary to amend or supplement any Current Report to comply with the Act or
the rules thereunder, the Underwriters, at their expense, promptly will prepare and furnish
to the Company for filing with the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance. The
Underwriters represent and warrant to the Company, as of the date of delivery of such
amendment or supplement to the Company, that such amendment or supplement will not include
any untrue statement of a material fact or, when read in conjunction with the Prospectus,
omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Company shall have no obligation to file such
amendment or supplement if the Company determines that (i) such amendment or supplement
contains any untrue statement of a material fact or, when read in conjunction with the
Prospectus, omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; it being understood, however, that the Company
shall have no obligation to review or pass upon the accuracy or adequacy of, or to correct,
any such amendment or supplement provided by the Underwriters to the Company pursuant to
this paragraph (d) or (ii) such filing is not required under the Act.
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(e) Each Underwriter (at its own expense) further agrees to provide to the
Company any accountants' letters obtained relating to the Computational Materials,
Collateral Term Sheets and/or ABS Term Sheets, which accountants' letters shall be
addressed to the Company or shall state that the Company may rely thereon; provided that
the Underwriters shall have no obligation to procure such letter.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representative, by notice given to the Company prior to delivery
of and payment for the Securities, if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium shall have
been declared by Federal authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable judgment of
the Representative, impracticable to market the Securities.
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its
officers and of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or the Company or any of the officers, directors or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 hereof and this Section 12 shall survive
the termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representative, will be mailed, delivered or
telegraphed and confirmed to them, at the address specified in Schedule I hereto or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to it
at , Attention: .
-24-
14. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and directors and
controlling persons referred to in Section 8 hereof, and no other person will have any
right or obligation hereunder.
15. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW (BUT WITH REFERENCE TO SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW, WHICH BY ITS TERMS APPLIES TO THIS AGREEMENT).
16. Miscellaneous.
(a) This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof.
(b) Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against whom enforcement
of such change, waiver, discharge or termination is sought.
(c) This Agreement may be signed in any number of counterparts each of which
shall be deemed an original, which taken together shall constitute one and the same
instrument.
(d) The headings of the Sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
-25-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement between the Company and the Underwriter.
Very truly yours,
WACHOVIA MORTGAGE LOAN TRUST, LLC
By: __________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date specified in
Schedule I hereto.
[NAME OF LEAD UNDERWRITER]
By: __________________________
Name:
Title:
For itself and as the authorized
Representative of other Underwriters
named in Schedule II hereto.
SCHEDULE I
Underwriting Agreement dated , 200
Registration Statement No. 333-
Representative: [Name of Lead Underwriter]
Title: Pass-Through Certificates, Series 200 -
Purchase Price and Description of the Securities:
Principal Pass-Through Form of Required Rating
Certificates Balance Rate Certificates
[_____] [_____]
Depositories for Book-Entry Certificates: The Depository Trust Company; Clearstream
Banking; Euroclear System
Closing Date, Time and Location: , 200 a.m., New York City time, Office
of [Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000]
SCHEDULE II
Securities
Principal
Amount of % of Class % of Class % of Class
Underwriter % of Securities Purchase
Total Purchased* Price** Certificates Certificates Certificates
% $ $ % % %
% $ $ % % %
% $____ $____ % % %
Total.............. 100% $____ $____ 100% 100% 100%
----------------------------------------------------------------------------------------
* Subject to final Class sizes.
** As a percentage of the Principal Amount of Securities Purchased.
