Exhibit 1.1
November 20, 2006
Greenwich Capital Markets,
Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Deutsche Bank Securities
Inc.
60 Wall Street
New York, New York 10005
Wachovia Capital Markets,
LLC
301 South College Street, NC0610
Charlotte, North Carolina 28288-0610
Re: NovaStar
Mortgage Funding Trust, Series 2006-6
Ladies and Gentlemen:
NovaStar Mortgage, Inc. (the
“Sponsor”), NovaStar Mortgage Funding Corporation (the
“Depositor”) and NovaStar Financial, Inc.
(“NFI”) hereby confirm their agreement to sell certain
asset backed certificates to Greenwich Capital Markets, Inc.
(“GCM”), Deutsche Bank Securities Inc. (“Deutsche
Bank”) and Wachovia Capital Markets, LLC
(“Wachovia” and, together with GCM and Deutsche Bank,
the “Underwriters”) as described herein. The
certificates will represent interests in the assets of a trust
consisting primarily of a pool of residential, subprime mortgage
loans (the “Mortgage Loans”), which were originated by
the Sponsor, as originator (in such capacity, the
“Originator”) or its affiliate. Pursuant to a Pooling
and Servicing Agreement dated as of November 1, 2006 (the
“Pooling and Servicing Agreement”) among the Depositor,
the Sponsor, U.S. Bank National Association, a national banking
corporation (“U.S. Bank”), not in its individual
capacity, but solely as Custodian (the “Custodian”),
Deutsche Bank National Trust Company, a national banking
association, not in its individual capacity, but solely as trustee
(the “Trustee”), NovaStar Mortgage Funding Trust
2006-6, a common law trust acting through the Trustee (the
“Issuer” or the “Trust”), will issue the
securities, as described herein.
All capitalized terms used but not
otherwise defined herein have the respective meanings set forth in
the Pooling and Servicing Agreement.
1. Securities . The
securities will be issued in classes as follows: (i) five
classes of senior certificates designated as Class A-1A,
Class A-2A, Class A-2B, Class A-2C and
Class A-2D Certificates (collectively, the “Class A
Certificates” or “Senior Certificates”); and
(ii) thirteen classes of mezzanine certificates designated as
the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class
M-6, Class M-7, Class M-8, Class M-9, Class M-10, Class M-11, Class
M-12 and Class M-13 Certificates (collectively, the
“Mezzanine Certificates” and together with Senior
Certificates, the “Certificates”).
The Senior Certificates and the
Mezzanine Certificates (other than the Class M-10, Class M-11,
Class M-12 and Class M-13 Certificates) are collectively referred
to herein as the “Underwritten
Certificates.”
2. Representations and Warranties
of the Sponsor and the Depositor . The Sponsor and the
Depositor represent and warrant to, and covenant with, the
Underwriters that:
A. The Depositor has filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement (No. 333-134461) on Form S-3 for the
registration under the Securities Act of 1933, as amended (the
“Act”), of asset backed securities (issuable in
series), which registration statement, as amended at the date
hereof, has become effective. Such registration statement, as
amended to the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1)(x) under the Act and complies in all other
material respects with such Rule. The Depositor proposes to file
with the Commission pursuant to Rule 424(b) under the Act a
supplement dated the date hereof to the prospectus dated
June 16, 2006 relating to the Underwritten Certificates and
the method of distribution thereof and has previously advised the
Underwriters of all further information (financial and other) with
respect to the Underwritten Certificates to be set forth therein.
Such registration statement, including the exhibits thereto, as
amended at the date hereof, is hereinafter called the
“Registration Statement”; such prospectus dated
June 16, 2006, in the form in which it will be filed with the
Commission pursuant to Rule 424(b) under the Act is hereinafter
called the “Basic Prospectus”; such supplement dated
the date hereof to the Basic Prospectus, in the form in which it
will be filed with the Commission pursuant to Rule 424(b) of the
Act, is hereinafter called the “Supplement”; and the
Basic Prospectus and the Supplement together are hereinafter called
the “Prospectus.” The free writing prospectus, dated
November 17, 2006, in the form in which it has heretofore been
filed pursuant to Rule 433 is hereinafter called the “Pricing
Free Writing Prospectus”. The Depositor will file with the
Commission a report on Form 8-K setting forth specific information
concerning the related Mortgage Loans (the “8-K”), as
and to the extent required under the Act.
B. As of the date hereof, when the
Registration Statement became effective, when the Pricing Free
Writing Prospectus is first filed pursuant to Rule 433 under the
Act, when the Prospectus Supplement is first filed pursuant to Rule
424(b) under the Act, when, prior to the Closing Date (as defined
below), any other amendment to the Registration Statement becomes
effective, and when any supplement to the Prospectus is filed with
the Commission, and at the Closing Date, (i) the Registration
Statement, as amended as of any such time, the Prospectus, as
amended or supplemented as of any such time, and the Pricing Free
Writing Prospectus, as amended as of any such time, will comply in
all material respects with the applicable requirements of the Act
and the rules thereunder and (ii) the Registration Statement,
as amended as of any such time, did not and will not contain any
untrue statement of a material fact and did not and will not omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and the
Prospectus, as amended or supplemented as of any such time, and the
Pricing Free Writing Prospectus, as of the date hereof, did not and
will not contain an untrue statement of a material fact and did not
and will not omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that
neither the Sponsor nor the Depositor makes any representation or
warranty as to the information contained
in or omitted from the Registration Statement,
the Prospectus or the Pricing Free Writing Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with the Underwriter Information. The Static Pool Data
of the Sponsor, whether or not incorporated by reference in the
Pricing Free Writing Prospectus and the Prospectus, as of the date
hereof, as of the date of the Prospectus and as of the Closing Date
does not and will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
C. Each of the Sponsor, the
Depositor and NFI (collectively, the “NovaStar
Entities”) is duly organized, validly existing and in good
standing under the laws of the state of its respective
incorporation, has full power and authority (corporate and other)
to own its properties and conduct its business as now conducted by
it, and as described in the Pricing Free Writing Prospectus and the
Prospectus, and is duly qualified to do business in each
jurisdiction in which it conducts business (to the extent such
qualification is required by applicable law) or in which the
conduct of its business requires such qualification except where
the failure to be so qualified does not involve (i) a material
risk to, or a material adverse effect on, the business, properties,
financial position, operations or results of operations of such
entity or (ii) any risk whatsoever as to the enforceability of
any Mortgage Loan.
D. There are no actions, proceedings
or investigations pending, or, to the knowledge of the Sponsor or
the Depositor, threatened, before any court, governmental agency or
body or other tribunal: (i) asserting the invalidity of this
Agreement, any of the Cap Agreements, any of the Basic Documents,
or the Underwritten Certificates; (ii) seeking to prevent the
issuance of the Certificates or the consummation of any of the
transactions contemplated by the Basic Documents; (iii) which
may, individually or in the aggregate, materially and adversely
affect the performance by the NovaStar Entities of their respective
obligations under, or the validity or enforceability of, the Basic
Documents or the Underwritten Certificates; or (iv) which may
affect adversely the federal income tax attributes of the
Underwritten Certificates as described in the
Prospectus.
E. The execution and delivery by the
NovaStar Entities of this Agreement and the Basic Documents to
which they are a party are within their respective corporate power
and have been, or will be, prior to the Closing Date duly
authorized by all necessary corporate action on the part of the
NovaStar Entities and the execution and delivery of such
instruments, the consummation of the transactions therein
contemplated and compliance with the provisions thereof will not
result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute or any agreement or
instrument to which the NovaStar Entities or any of their
affiliates is a party or by which it or any of them is bound or to
which any of the property of the NovaStar Entities or any of their
affiliates is subject, the NovaStar Entities’ charter or
bylaws, or any order, rule or regulation of any court, governmental
agency or body or other tribunal having jurisdiction over the
NovaStar Entities, any of their affiliates or any of their
properties; and no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body or other
tribunal is required for the consummation of the transactions
contemplated by this Agreement or the Prospectus in connection with
the issuance and sale of the Underwritten Certificates. Neither the
NovaStar Entities nor any of their
affiliates is a party to, bound by or in breach
or violation of any indenture or other agreement or instrument, or
subject to or in violation of any statute, order, rule or
regulation of any court, governmental agency or body or other
tribunal having jurisdiction over the NovaStar Entities or any of
their affiliates, which materially and adversely affects, or may in
the future materially and adversely affect, (i) the ability of
the NovaStar Entities to perform their obligations under the Basic
Documents or (ii) the business, operations, results of
operations, financial position, income, properties or assets of the
NovaStar Entities.
F. This Agreement has been duly
executed and delivered by the Sponsor and the Depositor, and the
other Basic Documents, as applicable, will be duly executed and
delivered by the NovaStar Entities, and each constitutes and will
constitute the legal, valid and binding obligation of each of the
NovaStar Entities enforceable in accordance with their respective
terms, except as enforceability may be limited by
(i) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors and (ii) general
principles of equity, whether enforcement is sought in a proceeding
at law or in equity.
G. The Underwritten Certificates
will conform in all material respects to the description thereof in
the Pricing Free Writing Prospectus and the Prospectus and will be
duly and validly authorized and, when duly and validly executed,
authenticated, issued and delivered in accordance with the Pooling
and Servicing Agreement and sold to the Underwriters as provided
herein, will be validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement.
H. On the Closing Date, the Mortgage
Loans will conform in all material respects to the description
thereof contained in the Pricing Free Writing Prospectus and the
Prospectus and the representations and warranties contained in this
Agreement will be true and correct in all material respects. The
representations and warranties of the Sponsor and the Depositor set
out in the Pooling and Servicing Agreement are hereby made to the
Underwriters as though set out herein, and at the dates specified
therein, such representations and warranties were or will be true
and correct in all material respects.
I. The NovaStar Entities possess all
material licenses, certificates, permits or other authorizations
issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated
by it and as described in the Prospectus and there are no
proceedings pending or, to the best knowledge of the Sponsor and
the Depositor, threatened, relating to the revocation or
modification of any such license, certificate, permit or other
authorization which singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially and
adversely affect the business, operations, results of operations,
financial position, income, property or assets of the NovaStar
Entities.
J. Any taxes, fees and other
governmental charges in connection with the execution and delivery
of this Agreement or the Basic Documents or the execution and
issuance of the Certificates have been or will be paid at or prior
to the Closing Date.
K. There has not been any material
adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the
earnings, business or operations of the NovaStar Entities or their
affiliates, taken as a whole, from September 30,
2006.
L. The Basic Documents will conform
in all material respects to the descriptions thereof, if any,
contained in the Pricing Free Writing Prospectus and the
Prospectus.
M. Neither the Depositor nor the
Issuing Entity created by the Pooling and Servicing Agreement is,
or as a result of the transactions contemplated hereby, will be an
“investment company” within the meaning of such term
under the Investment Company Act of 1940 (the “1940
Act”) and the rules and regulations of the Commission
thereunder. The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as
amended.
N. Neither the Sponsor nor the
Depositor is aware of (i) any request by the Commission for
any further amendment of the Registration Statement or the
Prospectus or for any additional information; (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; or (iii) any
notification with respect to the suspension of the qualification of
the Underwritten Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such
purpose.
O. The Depositor is not an
“ineligible issuer” as defined in Rule 405 of the
Act.
3. Agreements of the
Underwriters . Each Underwriter, severally and not jointly,
agrees with the Sponsor and the Depositor and NFI that upon the
execution of this Agreement and authorization by each Underwriter
of the release of the Underwritten Certificates, each Underwriter
shall offer the Underwritten Certificates for sale upon the terms
and conditions set forth herein in the amounts set forth in Annex A
hereto.
4. Purchase, Sale and Delivery of
the Underwritten Certificates . Each of the Sponsor and the
Depositor hereby agree, subject to the terms and conditions hereof,
to sell the Underwritten Certificates to the Underwriters. Upon the
basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, the Underwriters
hereby agree, severally and not jointly, to purchase the principal
amount of the Underwritten Certificates set forth opposite their
respective names in Annex A hereto. At the time of issuance of the
Underwritten Certificates, the Mortgage Loans will be transferred
by the Sponsor to the Depositor, and by the Depositor to the
Issuing Entity pursuant to the Pooling and Servicing
Agreement.
The Underwritten Certificates to be
purchased by each Underwriter will be delivered by the Sponsor and
the Depositor to each Underwriter (which delivery shall be made
through the facilities of The Depository Trust Company
(“DTC”)) against payment of the purchase price
therefor, set forth in Annex A hereto, by a same day federal funds
wire payable to the order of the Sponsor.
Settlement shall take place at the
offices of Dewey Ballantine LLP, 1301 Avenue of the Americas, New
York, New York 10019 at 10:00 a.m., on November 30, 2006 or at
such other time thereafter as each of the Underwriters, the Sponsor
and the Depositor determine (such time being herein referred to as
the “Closing Date”). The Underwritten Certificates will
be prepared in definitive form and in such authorized denominations
as each Underwriter may request, registered in the name of
Cede & Co., as nominee of The Depository Trust
Company.
The Sponsor and the Depositor agree
to have the Underwritten Certificates available for inspection and
review by the Underwriters in New York not later than 10:00 a.m.
New York time on the business day prior to the Closing
Date.
5. Covenants of the Sponsor and
the Depositor . Each of the Sponsor and the Depositor covenant
and agree with the Underwriters that:
A. The Sponsor and the Depositor
will promptly advise the Underwriters and their counsel
(i) when any amendment to the Registration Statement shall
have become effective; (ii) of any request by the Commission
for any amendment to the Registration Statement or the Prospectus
or for any additional information; (iii) 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 (iv) of the receipt by the
Sponsor or the Depositor of any notification with respect to the
suspension of the qualification of the Underwritten Certificates
for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. Neither the Sponsor nor the
Depositor will file any amendment to the Registration Statement or
supplement to the Prospectus after the date hereof and prior to the
Closing Date for the Underwritten Certificates unless the Sponsor
and the Depositor have furnished each Underwriter and its counsel
copies of such amendment or supplement for their review prior to
filing and will not file any such proposed amendment or supplement
to which such Underwriter reasonably objects, unless such filing is
required by law. The Sponsor and the Depositor will use its best
efforts to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if issued, to
obtain as soon as possible the withdrawal thereof.
B. If, at any time during the period
in which the Prospectus is required by law to be delivered, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the Act or the rules under
the Act, the Sponsor and the Depositor will promptly prepare and
file with the Commission, 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, will use its best efforts to cause such amendment of the
Registration Statement to be made effective as soon as
possible.
C. The Sponsor and the Depositor
will furnish to each Underwriter, without charge, executed copies
of the Registration Statement (including exhibits thereto) and, so
long as delivery of a Prospectus by the Underwriters or a dealer
may be required by the Act, as many
copies of the Prospectus, as amended or
supplemented, and any amendments and supplements thereto as the
Underwriters may reasonably request. The Sponsor and the Depositor
will pay the expenses of printing all offering documents relating
to the offering of the Underwritten Certificates.
D. As soon as practicable, but not
later than sixteen months after the effective date of the
Registration Statement, the Sponsor and the Depositor will make
generally available to Holders of Underwritten Certificates an
earnings statement covering a period of at least twelve months
beginning after the effective date of the Registration Statement
which will satisfy the provisions of Section 11(a) of the Act
and, at the option of the Sponsor and the Depositor, will satisfy
the requirements of Rule 158 under the Act.
E. So long as any of the
Underwritten Certificates are outstanding, the Sponsor and the
Depositor will cause to be delivered to each Underwriter
(i) all documents required to be distributed to the
Certificateholders and (ii) from time to time, any other
information filed with any government or regulatory authority that
is otherwise publicly available, as any of the Underwriters may
reasonably request.
F. The Sponsor and the Depositor,
whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, will pay all expenses
in connection with the transactions contemplated herein, including,
but not limited to, the expenses of printing (or otherwise
reproducing) all documents relating to the offering, the fees and
disbursements of its counsel and expenses of each Underwriter
incurred in connection with (i) the proposed purchase and sale
of the Underwritten Certificates; (ii) preparation of all
documents specified in this Agreement; (iii) any fees and
expenses of the Trustee; (iv) any fees charged by investment
rating agencies for rating the Underwritten Certificates; and
(v) their investigation with regard to the NovaStar
Entities.
G. Each of the Sponsor and the
Depositor agrees that, so long as any of the Underwritten
Certificates shall be outstanding, it will deliver or cause to be
delivered to each Underwriter (i) the annual statement as to
compliance delivered to the Trustee pursuant to the Pooling and
Servicing Agreement; (ii) the annual statement of a firm of
independent public accountants furnished by the Servicer to the
Trustee pursuant to Section 3.17 of the Pooling and Servicing
Agreement as soon as such statement is furnished to the Sponsor and
the Depositor; and (iii) any information and reports required
to be delivered by the Servicer pursuant to Article III and
Section 4.03 of the Pooling and Servicing
Agreement.
H. The Sponsor, and the Depositor
will enter into each of the Basic Documents to which it is a party
and all related agreements on or prior to the Closing
Date.
I. The Sponsor and the Depositor
will endeavor to qualify the Underwritten Certificates for sale to
the extent necessary under any state securities or Blue Sky laws in
any jurisdictions as may be reasonably requested by the
Underwriters, if any, and will pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and
in connection with the determination of the eligibility of the
Underwritten Certificates for investment under the laws of such
jurisdictions as the Underwriters may reasonably designate, if
any.
6. Conditions of the
Underwriters’ Obligations . The several obligations of
the Underwriters to purchase and pay for the Underwritten
Certificates as provided herein shall be subject to the accuracy as
of the date hereof and the Closing Date (as if made at the Closing
Date) of the representations and warranties of the Sponsor and the
Depositor contained herein (including those representations and
warranties set forth in the Basic Documents incorporated herein),
to the accuracy of the statements of the Sponsor and the Depositor
made in any certificate or other document delivered pursuant to the
provisions hereof, to the performance by the Sponsor and the
Depositor of their obligations hereunder, and to the following
additional conditions:
A. The Registration Statement shall
have become effective no later than the date hereof, and 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 threatened, and the Prospectus shall have
been filed pursuant to Rule 424(b).
B. The Underwriters shall have
received the Basic Documents and the Underwritten Certificates in
form and substance satisfactory to the Underwriters, duly executed
by all signatories required pursuant to the respective terms
thereof.
C. The Underwriters shall have
received the favorable opinion of Dewey Ballantine LLP, counsel to
NovaStar Entities with respect to the following items, dated the
Closing Date, to the effect that:
(1) Each of the NovaStar Entities
has been duly organized and is validly existing as a corporation in
good standing under the laws of its respective state of
incorporation, and is qualified to do business in each state
necessary to enable it to perform its obligations under each of the
Basic Documents to which it is a party. Each of the NovaStar
Entities has the requisite power and authority to execute and
deliver, engage in the transactions contemplated by, and perform
and observe the conditions of the Basic Documents to which it is a
party.
(2) Each of the applicable Basic
Documents has been duly and validly authorized, executed and
delivered by the applicable NovaStar Entities, all requisite
corporate action having been taken with respect thereto, and each
constitutes the valid, legal and binding agreement of the NovaStar
Entities, and would be enforceable against the applicable NovaStar
Entities in accordance with their respective terms.
(3) Neither the transfer of the
Mortgage Loans to the Depositor and from the Depositor to the
Issuing Entity, the issuance or sale of the Underwritten
Certificates nor the execution, delivery or performance by the
NovaStar Entities of, the Basic Documents (A) conflicts or
will conflict with or results or will result in a breach of, or
constitutes or will constitute a default under, (i) any term
or provision of any certificate of incorporation or bylaws of the
NovaStar Entities; (ii) any term or provision of any material
agreement, contract, instrument or indenture, to which any NovaStar
Entity is a party or is bound and which has been identified to such
counsel by the appropriate officers of such entity; or
(iii) to the best of such counsel’s knowledge following
due inquiry made of the appropriate officers of such entity, any
order,
judgment, writ, injunction or decree
of any court or governmental agency or body or other tribunal
having jurisdiction over any NovaStar Entity; or (B) results
in, or will result in the creation or imposition of any lien,
charge or encumbrance upon the Trust or upon the Underwritten
Certificates, except as otherwise contemplated by the Pooling and
Servicing Agreement.
(4) No consent, approval,
authorization or order of, registration or filing with, or notice
to, courts, governmental agency or body or other tribunal is
required under the laws of the State of Missouri, for the
execution, delivery and performance of the Basic Documents, or the
offer, issuance, sale or delivery of the Underwritten Certificates
or the consummation of any other transaction contemplated thereby
by the NovaStar Entities, except such which have been
obtained.
(5) There are no actions,
proceedings or investigations pending or, to such counsel’s
knowledge, threatened against the NovaStar Entities before any
court, governmental agency or body or other tribunal
(i) asserting the invalidity of the Agreements or the
Underwritten Certificates; (ii) seeking to prevent the
issuance of the Underwritten Certificates or the consummation of
any of the transactions contemplated by the Basic Documents; or
(iii) which would materially and adversely affect the
performance by the NovaStar Entities of obligations under, or the
validity or enforceability of, the Underwritten Certificates or the
Basic Documents.
(6) The Commission has not issued
any stop order suspending the effectiveness of the Registration
Statement or any order directed to any prospectus relating to the
Underwritten Certificates (including the Prospectus), and has not
initiated or to the knowledge of such counsel, threatened any
proceeding for that purpose.
(7) When the Underwritten
Certificates have been duly executed, delivered and authenticated
in accordance with the Pooling and Servicing Agreement, and
delivered and paid for pursuant to this Agreement, the Underwritten
Certificates will be validly issued and entitled to the benefits of
the Pooling and Servicing Agreement.
(8) The Depositor and the Issuing
Entity are not, and will not as a result of the offer and sale of
the Underwritten Certificates as contemplated in the Prospectus and
this Agreement become, an “investment company” as
defined in the 1940 Act or a company “controlled by” an
“investment company” within the meaning of the 1940
Act.
(9) The Pooling and Servicing
Agreement is not required to be qualified under the Trust Indenture
Act.
(10) Such counsel shall state that
they have participated in the preparation of the Registration
Statement and the Prospectus and no facts have come to their
attention which may cause them to believe that the Registration
Statement (excluding any Exhibit thereto), as of the effective date
thereof, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading or
that the
Prospectus, as of its date or the
Closing Date, contains any untrue statement of a material fact or
omitted 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 that such counsel
need not express any view with respect to the financial,
statistical or computational material included in the Registration
Statement or the Prospectus.
(11) To the best of such
counsel’s knowledge, there are no material contracts,
indentures or other documents of a ch