EXHIBIT 1.1
WACHOVIA BANK
COMMERCIAL MORTGAGE TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-C22
UNDERWRITING AGREEMENT
Charlotte, North Carolina
December 15, 2005
WACHOVIA CAPITAL MARKETS, LLC
301 South College Street
One Wachovia Center
Charlotte, North Carolina 28288
DEUTSCHE BANK SECURITIES INC.
Wall Street
New York, New York 10005
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
J.P. MORGAN SECURITIES INC.
270 Park Avenue
New York, New York 10017
NOMURA SECURITIES INTERNATIONAL, INC.
2 World Financial Center
Building B
New York, New York 10281
Dear Sirs:
Wachovia Commercial Mortgage Securities, Inc., a North Carolina
corporation (the
"Company"), intends to issue its Commercial Mortgage Pass-Through
Certificates,
Wachovia Bank Commercial Mortgage Trust Series 2005-C22 (the
"Certificates"), in
twelve (12) classes (each, a "Class") as designated in the
Prospectus Supplement
(as defined below). Pursuant to this underwriting agreement (the
"Agreement"),
the Company further proposes to sell to Wachovia Capital Markets,
LLC ("Wachovia
Securities"), Deutsche Bank Securities Inc. ("Deutsche Bank"),
Goldman, Sachs &
Co. ("Goldman Sachs"), J.P. Morgan Securities Inc. ("JPMorgan") and
Nomura
Securities International, Inc. ("Nomura", and each of Wachovia
Securities,
Deutsche Bank, Goldman Sachs, JP Morgan and Nomura, individually,
an
"Underwriter" and, collectively, the "Underwriters") the
Certificates set forth
in Schedule I hereto (the "Underwritten Certificates") in the
respective
original principal amounts set forth in Schedule I. The
Certificates represent
in the aggregate the entire beneficial ownership interest in a
trust fund (the
"Trust Fund") consisting of a segregated pool (the "Mortgage Pool")
of one
hundred forty-nine (149) mortgage loans (the "Mortgage Loans")
having an
approximate aggregate principal balance of $2,534,116,891 of the
Cut-Off Date
secured by first liens on certain fee or leasehold interests in
multifamily and
commercial properties (the "Mortgaged Properties"). The
Certificates will be
issued on December 29, 2005 (the "Closing Date"), pursuant to a
pooling and
servicing agreement (the "Pooling and Servicing Agreement"), dated
as of
December 1, 2005 among the Company, Wachovia Bank, National
Association, as
master servicer (in such capacity, the "Master Servicer"),
CWCapital Asset
Management LLC, as special servicer (the "Special Servicer"), and
Wells Fargo
Bank, N.A., as trustee (the "Trustee"). One hundred forty-six (146)
of the
Mortgage Loans (the "Wachovia Mortgage Loans"), having an aggregate
principal
balance of $2,483,692,268 as of the Cut-Off Date, were acquired by
the Company
from Wachovia Bank, National Association ("Wachovia") pursuant to a
mortgage
loan purchase agreement, dated as of December 1, 2005 (the
"Wachovia Mortgage
Loan Purchase Agreement"), between Wachovia and the Company. Three
(3) of the
Mortgage Loans (the "CW Capital Mortgage Loans"), having an
aggregate principal
balance of $50,424,622 as of the Cut-Off Date, were acquired by the
Company from
CWCapital LLC and CWCapital Mortgage Securities II LLC
("collectively,
"CWCapital") pursuant to a mortgage loan purchase agreement, dated
as of
December 1, 2005 (the "CWCapital Mortgage Loan Purchase Agreement",
and
collectively with the Wachovia Mortgage Loan Purchase Agreement,
the "Mortgage
Loan Purchase Agreements") between CWCapital and the Company. Each
of Wachovia
and CWCapital is referred to herein, individually, as a "Mortgage
Loan Seller"
and collectively, as the "Mortgage Loan Sellers".
Two separate real estate mortgage investment conduit ("REMIC")
elections will be made with respect to certain portions of the
Trust Fund for
federal income tax purposes. The Underwritten Certificates and the
Mortgage Pool
are described more fully in Schedule I hereto and in a registration
statement
furnished to you by the Company.
Capitalized terms used but not otherwise defined herein shall
have
the respective meanings assigned to them in the Pooling and
Servicing Agreement.
1. Representations and Warranties. (a) The Company represents
and
warrants to, and agrees with, each Underwriter that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No.
333-127668)
on Form S-3 for the registration of Commercial Mortgage
Pass-Through
Certificates, issuable in series, including the Underwritten
Certificates, under the Securities Act of 1933, as amended (the
"1933
Act"), which registration statement has become effective and a copy
of
which, as amended to the date hereof, has heretofore been delivered
to
you. The Company meets the requirements for use of Form S-3 under
the
1933 Act, and such registration statement, as amended at the
date
hereof, meets the requirements set forth in Rule 415(a)(1)(x) under
the
1933 Act and complies in all other material respects with the 1933
Act
and the rules and regulations thereunder. The Company proposes to
file
with the Commission, with your consent, pursuant to Rule 424 under
the
1933 Act, a supplement dated December 15, 2005 (the "Prospectus
Supplement") to the prospectus dated December 15, 2005 (the
"Base
Prospectus"), relating to the Underwritten Certificates and the
method
of distribution thereof, and has previously advised you of all
further
information (financial and other) with respect to the
Underwritten
Certificates and the Mortgage Pool to be set forth therein.
Such
registration statement (No. 333-127668), including all exhibits
thereto, is referred to herein as the "Registration Statement"; and
the
Base
Prospectus and the Prospectus Supplement, together with any
amendment thereof or supplement thereto authorized by the Company
prior
to the Closing Date for use in connection with the offering of
the
Underwritten Certificates, are hereinafter called the "Prospectus".
As
used herein, "Pool Information" means the mortgage pool
information
reflected in the Master Tape and the Prospectus Supplement. The
"Master
Tape" shall mean the compilation of information and data regarding
the
Mortgage Loans covered by the letters rendered by KPMG LLP or
Deloitte
& Touche LLP, as applicable (a "hard copy" of which Master Tape
was
produced on behalf of the Mortgage Loan Sellers) described in
Section
6(h)(ii) of this Agreement.
(ii) As of the date hereof, as of the Time of Sale (as defined
herein), as of the date on which the Prospectus Supplement is
first
filed pursuant to Rule 424 under the 1933 Act, as of the date on
which,
prior to the Closing Date, any amendment to the Registration
Statement
becomes effective, as of the date on which any supplement to
the
Prospectus Supplement is filed with the Commission, and as of
the
Closing Date, (i) the Registration Statement, as amended as of any
such
time, and the Prospectus, as amended or supplemented as of any
such
time, complies and will comply in all material respects with
the
applicable requirements of the 1933 Act and the rules and
regulations
thereunder, (ii) the Registration Statement, as amended as of any
such
time, does not include and will not include any untrue statement of
a
material fact and does not omit and will not omit to state any
material
fact required to be stated therein or necessary in order to make
the
statements therein not misleading, and (iii) the Prospectus, as
amended
or supplemented as of any such time, does not include and will
not
include any untrue statement of a material fact and does not omit
and
will not omit to state any material fact necessary in order to make
the
statements therein, in the light of the circumstances under which
they
were made, not misleading; provided, however, that the Company
makes no
representations or warranties as to (x) statements contained in
or
omitted from the Registration Statement or the Prospectus or
any
amendment or supplement thereto made in reliance upon and in
conformity
with information furnished in writing to the Company by or on
behalf of
any Underwriter through you specifically for use in the
Registration
Statement and the Prospectus (such information being identified
in
Section 8(b) hereof), or (y) the Mortgage Loan Seller Covered
Information (as defined in Section 8 hereof).
(iii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State
of North Carolina with corporate power and authority to own, lease
or
operate its properties and to conduct its business as now conducted
by
it and to enter into and perform its obligations under this
Agreement
and the Pooling and Servicing Agreement; and the Company is
duly
qualified as a foreign corporation to transact business and is in
good
standing in each jurisdiction in which such qualification is
required,
whether by reason of the ownership or leasing of property or
the
conduct of business.
(iv) As of the date hereof, as of the date on which the
Prospectus Supplement is first filed pursuant to Rule 424 under
the
1933 Act, as of the date on which, prior to the Closing Date,
any
amendment to the Registration Statement becomes effective, as of
the
date on which any supplement to the Prospectus Supplement is filed
with
the Commission, and as of the Closing Date, there has not and will
not
have been (i) any request by the Commission for any further
amendment
to the Registration Statement or the Prospectus or for any
additional
information, (ii) any issuance by the Commission of any stop
order
suspending the effectiveness of the Registration Statement or
the
institution or threat of any proceeding for that purpose or (iii)
any
notification with respect to the suspension of the qualification of
the
Underwritten Certificates for sale in any jurisdiction or any
initiation or threat of any proceeding for such purpose.
(v) Each of this Agreement, the Pooling and Servicing
Agreement and each Mortgage Loan Purchase Agreement has been
duly
authorized, executed and delivered by the Company and each of
this
Agreement, the Pooling and Servicing Agreement, and each Mortgage
Loan
Purchase Agreement constitutes legal, valid and binding agreements
of
the Company, enforceable against the Company in accordance with
their
respective terms, except as enforceability may be limited by
(i)
bankruptcy, insolvency, reorganization, receivership, moratorium
or
other similar laws affecting the enforcement of the rights of
creditors
generally, (ii) general principles of equity, whether enforcement
is
sought in a proceeding in equity or at law, and (iii) public
policy
considerations underlying the securities laws, to the extent that
such
public policy considerations limit the enforceability of the
provisions
of this Agreement, the Pooling and Servicing Agreement or any
Mortgage
Loan Purchase
Agreement that purport to provide indemnification from
securities law liabilities.
(vi) As of the Closing Date, the Underwritten Certificates,
the Pooling and Servicing Agreement and the Mortgage Loan
Purchase
Agreements will conform in all material respects to the
respective
descriptions thereof contained in the Prospectus. As of the
Closing
Date, the Underwritten Certificates will be duly and validly
authorized
and, when delivered in accordance with the Pooling and
Servicing
Agreement to you against payment therefor as provided herein, will
be
duly and validly issued and outstanding and entitled to the
benefits of
the Pooling and Servicing Agreement.
(vii) The Company is not in violation of its certificate of
incorporation or by laws or in default under any agreement,
indenture
or instrument the effect of which violation or default would be
material to the Company or which violation or default would have
a
material adverse affect on the performance of its obligations
under
this Agreement, the Pooling and Servicing Agreement or any
Mortgage
Loan Purchase Agreement. Neither the issuance and sale of the
Underwritten Certificates, nor the execution and delivery by
the
Company of this Agreement, any Mortgage Loan Purchase Agreement or
the
Pooling and Servicing Agreement nor the consummation by the Company
of
any of the transactions herein or therein contemplated, nor
compliance
by the Company with the provisions hereof or thereof, did, does or
will
conflict with or result in a breach of any term or provision of
the
certificate of incorporation or by laws of the Company or
conflict
with, result in a breach, violation or acceleration of, or
constitute a
default (or an event which, with the passing of time or
notification,
or both, would constitute a default) under, the terms of any
indenture
or other agreement or instrument to which the Company is a party or
by
which it or any material asset is bound, or any statute, order
or
regulation applicable to the Company of any court, regulatory
body,
administrative agency or governmental body having jurisdiction over
the
Company.
(viii) There is no action, suit or proceeding against the
Company pending, or, to the knowledge of the Company,
threatened,
before any court, arbitrator, administrative agency or other
tribunal
(i) asserting the invalidity of this Agreement, the Pooling and
Servicing Agreement, any Mortgage Loan Purchase Agreement or
the
Underwritten Certificates, (ii) seeking to prevent the issuance of
the
Underwritten Certificates or the consummation of any of the
transactions contemplated by this Agreement, (iii) that might
materially and adversely affect the performance by the Company of
its
obligations under, or the validity or enforceability of, this
Agreement, the Pooling and Servicing Agreement, any Mortgage
Loan
Purchase Agreement or the Underwritten Certificates or (iv) seeking
to
affect adversely the federal income tax attributes of the
Underwritten
Certificates as described in the Prospectus.
(ix) There are no contracts, indentures or other documents of
a character required by the 1933 Act or by the rules and
regulations
thereunder to be described or referred to in the Registration
Statement
or the Prospectus or to be filed as exhibits to the
Registration
Statement which have not been so described or referred to therein
or so
filed or incorporated by reference as exhibits thereto.
(x) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with
the
offering or sale of the Underwritten Certificates pursuant to
this
Agreement, except such as have been, or as of the Closing Date
will
have been, obtained or such as may otherwise be required under
applicable state securities laws in connection with the purchase
and
offer and sale of the Underwritten Certificates by the Underwriters
and
any recordation of the respective assignments of the Mortgage Loans
to
the Trustee pursuant to the Pooling and Servicing Agreement that
have
not been completed.
(xi) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate
state,
federal or foreign regulatory agencies or bodies necessary to
conduct
the business now operated by it, and the Company has not received
any
notice of proceedings relating to the revocation or modification of
any
such license, certificate, authority or permit which, singly or in
the
aggregate, if the subject of any unfavorable decision, ruling
or
finding, would materially and adversely affect the condition,
financial
or otherwise, or the earnings, business affairs or business
prospects
of the Company.
(xii) Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement and
the
delivery and sale of the Underwritten Certificates (other than
such
federal, state and local taxes as may be payable on the income or
gain
recognized therefrom) have been or will be paid at or prior to
the
Closing Date.
(xiii) Neither the Company nor the Trust Fund is, and neither
the sale of the Underwritten Certificates in the manner
contemplated by
the Prospectus nor the activities of the Trust Fund pursuant to
the
Pooling and Servicing Agreement will cause the Company or the
Trust
Fund to be, an "investment company" or under the control of an
"investment company" as such terms are defined in the
Investment
Company Act of 1940, as amended (the "Investment Company Act").
(xiv) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Company reported the
transfer
of the Mortgage Loans to the Trustee in exchange for the
Certificates
and will report the sale of the Underwritten Certificates to
the
Underwriters pursuant to this Agreement as a sale of the interests
in
the Mortgage Loans evidenced by the Underwritten Certificates.
The
consideration received by the Company upon the sale of the
Underwritten
Certificates to the Underwriters will constitute reasonably
equivalent
value and fair consideration for the Underwritten Certificates.
The
Company will be solvent at all relevant times prior to, and will
not be
rendered insolvent by, the sale of the Underwritten Certificates to
the
Underwriters. In addition, the Company was solvent at all
relevant
times prior to, and was not rendered insolvent by, the transfer of
the
Mortgage Loans to the Trustee on behalf of the Trust Fund. The
Company
is not selling the Underwritten Certificates to the Underwriters
and
did not transfer the Mortgage Loans to the Trustee on behalf of
the
Trust Fund with any intent to hinder, delay or defraud any of
the
creditors of the Company.
(xv) At the Closing Date, the respective classes of
Underwritten Certificates shall continue to have maintained ratings
no
lower than those set forth in Schedule I hereto by the
nationally
recognized statistical rating organizations identified in Schedule
I
hereto (individually and collectively, the "Rating Agency").
(xvi) The Company is not, and on the date on which the initial
bona fide offer of the Underwritten Certificates is made will not
be,
an "ineligible issuer," as defined in Rule 405 under the 1933
Act.
(xvii) At or prior to the time when sales to investors of the
Underwritten Certificates were first made as determined in
accordance
with Rule 159 of the 1933 Act (the "Time of Sale"), the Company
had
prepared the following information (collectively, the "Time of
Sale
Information"): a structural and collateral term sheet dated
November
18, 2005 (the "Term Sheet") attached as Annex A hereto and each
"free-writing prospectus" (as defined pursuant to Rule 405 under
the
1933 Act) (a "Free Writing Prospectus") listed on Annex B hereto.
If,
subsequent to the date of this Agreement, the Company and the
Underwriters have determined that such information included an
untrue
statement of material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of
the
circumstances under which they were made, not misleading and
have
terminated their old purchase contracts and entered into new
purchase
contracts with purchasers of the Underwritten Certificates, then
"Time
of Sale Information", in connection with a particular purchaser of
the
Underwritten Certificates will refer to the information available
to
such purchaser at the time of entry into the last such new
purchase
contract with such particular purchaser, including any information
that
corrects such material misstatements or omissions ("Corrective
Information").
(xviii) The Time of Sale Information, at the Time of Sale did
not, and at the Closing Date will not, contain any untrue statement
of
a material fact or omit to state a material fact necessary in order
to
make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided that the Company
makes
no representation and warranty with respect to (i) any statements
or
omissions relating to any Underwriter made in reliance upon and
in
conformity with information furnished to the Company in writing by
such
Underwriter expressly for use in such Time of Sale Information or
(ii)
any Mortgage Loan Seller Covered Information (as defined herein)
in
such Time of Sale Information.
(xix) Other than the Prospectus, the Company (including its
agents and representatives other than the Underwriters in their
capacity as such) has not made, used, prepared, authorized,
approved or
referred to and will not prepare, make, use, authorized, approve
or
refer to any "written communication" (as defined in Rule 405 under
the
1933 Act) that constitutes an offer to sell or solicitation of an
offer
to buy the Underwritten Certificates other than (i) any document
not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the
1933
Act or Rule 134 under the 1933 Act, (ii) the Time of Sale
Information
and (iii) each other written communication approved in writing
in
advance by the Underwriters (each such communication referred to
in
clause (ii) and this clause (iii) constituting an "issuer free
writing
prospectus", as defined in Rule 433(h) under the 1933 Act being
referred to as an "Issuer Free Writing Prospectus"). Each such
Issuer
Free Writing Prospectus complied in all material respects with the
1933
Act, has been filed in accordance with Section 4(c)(iv) (to the
extent
required thereby) and, when taken together with the Term Sheet and
all
other material delivered at the Time of Sale, did not at the Time
of
Sale, and at the Closing Date will not, contain any untrue
statements
of a material fact or omit to state a material fact necessary in
order
to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided that the Company
makes
no representation and warranty with respect to (i) any statements
or
omissions made in reliance upon and in conformity with
information
relating to any Underwriter furnished to the Company in writing by
such
Underwriter expressly for use in any Issuer Free Writing Prospectus
or
(ii) any Mortgage Loan Seller Covered Information in any Issuer
Free
Writing Prospectus.
(b) Wachovia represents and warrants to, and agrees with, each
Underwriter, that:
(i) Wachovia is a national banking association validly
existing under the laws of the United States of America and
possesses
all requisite authority, power, licenses, permits and franchises
to
carry on its business as currently conducted by it and to
execute,
deliver and comply with its obligations under the terms of this
Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by Wachovia and, assuming due
authorization,
execution and delivery hereof by the Company and the
Underwriters,
constitutes a legal, valid and binding obligation of Wachovia,
enforceable against Wachovia in accordance with its terms, except
as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement
of
creditors' rights in general, as they may be applied in the context
of
the insolvency of a national banking association, and by general
equity
principles (regardless of whether such enforcement is considered in
a
proceeding in equity or at law), and by public policy
considerations
underlying the securities laws, to the extent that such public
policy
considerations limit the enforceability of the provisions of
this
Agreement which purport to provide indemnification from
liabilities
under applicable securities laws.
(iii) The execution and delivery of this Agreement by Wachovia
and Wachovia's performance and compliance with the terms of
this
Agreement will not (A) violate Wachovia's articles of association
or by
laws, (B) violate any law or regulation or any administrative
decree or
order to which it is subject or (C) constitute a default (or an
event
which, with notice or lapse of time, or both, would constitute
a
default) under, or result in the breach of, any contract, agreement
or
other instrument to which Wachovia is a party or by which Wachovia
is
bound.
(iv) Wachovia is not in default with respect to any order or
decree of any court or any order, regulation or demand of any
federal,
state, municipal or other governmental agency or body, which
default
might have
consequences that would materially and adversely affect the
condition (financial or other) or operations of Wachovia or its
properties or have consequences that would materially and
adversely
affect its performance hereunder.
(v) Wachovia is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or
any
other corporate restriction or any judgment, order, writ,
injunction,
decree, law or regulation that would materially and adversely
affect
the ability of Wachovia to perform its obligations under this
Agreement
or that requires the consent of any third person to the execution
of
this Agreement or the performance by Wachovia of its obligations
under
this Agreement (except to the extent such consent has been
obtained).
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery
and performance by Wachovia of or compliance by Wachovia with
this
Agreement or the consummation of the transactions contemplated by
this
Agreement except as have previously been obtained.
(vii) No litigation is pending or, to the best of Wachovia's
knowledge, threatened against Wachovia that would assert the
invalidity
of this Agreement, prohibit its entering into this Agreement or
materially and adversely affect the performance by Wachovia of
its
obligations under this Agreement.
(viii) Each representation and warranty of the Company set
forth in Section 1(a) hereof is true and correct as of the date
hereof
or as of the
date specified in such representation and warranty.
(c) Each Underwriter represents and warrants to the Company that,
as
of the date hereof and as of the Closing Date, such Underwriter has
complied in
all material respects with all of its obligations under Section 4
hereof.
2. Purchase and Sale. Subject to the terms and conditions and
in
reliance upon the representations and warranties set forth herein,
the Company
agrees to sell to the Underwriters, and the Underwriters agree,
severally and
not jointly, to purchase from the Company, at the applicable
purchase prices set
forth in Schedule I hereto, the respective principal amounts of the
Underwritten
Certificates set forth opposite the name of each Underwriter set
forth in
Schedule II hereto, and any additional portions of the Underwritten
Certificates
that any such Underwriter may be obligated to purchase pursuant to
Section 10
hereof, in all cases plus accrued interest as set forth in Schedule
I.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Certificates shall be made in the manner, at the
location(s), on
the Closing Date at the time specified in Schedule I hereto (or
such later date
not later than ten business days after such specified date as you
shall
designate), which date and time may be changed by agreement between
you and the
Company or as provided in Section 10 hereof. Delivery of the
Underwritten
Certificates shall be made either directly to you or through the
facilities of
The Depository Trust Company ("DTC"), as specified in Schedule I
hereto, for the
respective accounts of the Underwriters against payment by the
respective
Underwriters of the purchase price therefor in immediately
available funds wired
to such bank as may be designated by the Company, or such other
manner of
payment as may be agreed upon by the Company and you. Any Class of
Underwritten
Certificates to be delivered through the facilities of DTC shall be
represented
by one or more global Certificates registered in the name of Cede
& Co., as
nominee of DTC, which global Certificate(s) shall be placed in the
custody of
DTC not later than 10:00 a.m. (New York City time) on the Closing
Date pursuant
to a custodial arrangement to be entered into between the Trustee
or its agent
and DTC. Unless delivered through the facilities of DTC, the
Underwritten
Certificates shall be in fully registered certificated form, in
such
denominations and registered in such names as you may have
requested in writing
not less than one full business day in advance of the Closing
Date.
The Company agrees to have the Underwritten Certificates,
including
the global Certificates representing the Underwritten Certificates
to be
delivered through the facilities of DTC, available for inspection,
checking and,
if applicable, packaging by you in New York, New York, not later
than the close
of business (New York City time) on the business day preceding the
Closing Date.
References herein, including, without limitation, in the
Schedules
hereto, to actions taken or to be taken following the Closing Date
with respect
to any Underwritten Certificates that are to be delivered through
the facilities
of DTC shall include, if the context so permits, actions taken or
to be taken
with respect to the interests in such Certificates as reflected on
the books and
records of DTC.
4. Offering by Underwriters; Free Writing Prospectuses.
(a) It is understood that the Underwriters propose to offer the
Underwritten Certificates for sale to the public, including,
without limitation,
in and from the State of New York, as set forth in the Prospectus
Supplement. It
is further understood that the Company, in reliance upon an
exemption from the
Attorney General of the State of New York to be granted pursuant to
Policy
Statement 104 and 105, has not and will not file the offering
pursuant to
Section 352-e of the General Business Law of the State of New York
with respect
to the Underwritten Certificates.
(b) The Term Sheet was prepared and provided to prospective
investors, prior to December 1, 2005 in connection with its
offering of the
Certificates, subject to the following conditions:
(i) The Underwriters complied with the requirements of the no
action letter, dated May 20, 1994, issued by the Commission to
Kidder,
Peabody Acceptance Corporation I, Kidder, Peabody & Co.
Incorporated
and Kidder Structured Asset Corporation, as made applicable to
other
issuers and underwriters by the Commission in response to the
request
of the Public Securities Association, dated May 27, 1994
(collectively,
the "Kidder/PSA Letter"), and the requirements of the no action
letter,
dated February 17, 1995, issued by the Commission to the Public
Securities Association (the "PSA Letter" and, together with the
Kidder/PSA Letter, the "No Action Letters").
(ii) For purposes hereof, "Computational Materials" shall have
the meaning
given such term in the No Action Letters. "ABS Term
Sheets," "Structural Term Sheets" and "Collateral Term Sheets"
shall
have the meanings given such terms in the PSA Letter. The Term
Sheet
shall constitute the only such materials.
(iii) The Term Sheet bore a legend in a form previously
approved by the Company or its counsel.
(iv) Each Underwriter hereby represents and warrants, as of
the Closing Date, that except for the Term Sheet, each Underwriter
did
not provide any prospective investors with any information in
written
or electronic form in connection with the offering of the
Underwritten
Certificates that is required to be filed with the Commission
in
accordance with the No Action Letters.
(v) The Term Sheet may have been distributed by the
Underwriter through electronic means in accordance with SEC Release
No.
33-7233 or other applicable laws or regulations.
(c) Further, in connection with the offering of the
Underwritten
Certificates, the Underwriters may each, on or after December 1,
2005, prepare
and provide to prospective investors Free Writing Prospectuses (as
defined
below), or portions thereof, which the Company is required to file
with the
Commission in electronic format and will use reasonable efforts to
provide to
the Company such Free Writing Prospectuses, or portions thereof, in
either
Microsoft Word(R) or Microsoft Excel(R) format and not in Adobe
Acrobat(R) PDF
format, except to the extent that the Company, in its sole
discretion, waives
such requirements, subject to the following conditions (to which
such conditions
each Underwriter agrees (provided that no Underwriter is
responsible for any
breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by a prospectus satisfying
the requirements of Section 10(a) of the 1933 Act, the
Underwriters
shall not
convey or deliver any written communication to any person in
connection with the initial offering of the Underwritten
Certificates,
unless such written communication (1) is made in reliance on Rule
134
under the 1933 Act, (2) constitutes a prospectus satisfying the
requirements of Rule 430B under the 1933 Act, (3) constitutes a
Free
Writing Prospectus or (4) is the Term Sheet. The Underwriter shall
not
convey or deliver in connection with the initial offering of
the
Underwritten Certificates any "ABS informational and
computational
material," as defined in Item 1101(a) of Regulation AB under the
1933
Act ("ABS Informational and Computational Material"), in reliance
upon
Rules 167 and 426 under the 1933 Act other than the Term Sheet.
(ii) The Underwriter shall deliver to the Company, no later
than two business days prior to the date of first use thereof, (a)
any
Free Writing Prospectus prepared by or on behalf of the
Underwriter
that contains any "issuer information," as defined in Rule 433(h)
under
the 1933 Act and footnote 271 of the Commission's Securities
Offering
Reform Release No. 33-8591 ("Issuer Information") (which the
parties
hereto agree includes, without limitation, Mortgage Loan Seller
Covered
Information), and (b) any Free Writing Prospectus or portion
thereof
that contains only a description of the final terms of the
Underwritten
Certificates. Notwithstanding the foregoing, any Free Writing
Prospectus that contains only ABS Informational and
Computational
Materials may be delivered by the Underwriter to the Company not
later
than the
later of (a) two business days prior to the due date for
filing of the Prospectus pursuant to Rule 424(b) under the 1933 Act
or
(b) the date of first use of such Free Writing Prospectus.
(iii) The Underwriter represents and warrants to the Company
that the Free Writing Prospectuses to be furnished to the Company
by
the Underwriter pursuant to Section 4(c)(ii) will constitute all
Free
Writing Prospectuses of the type described therein that were
furnished
to prospective investors by the Underwriter in connection with
its
offer and sale of the Underwritten Certificates.
(iv) The Underwriter represents and warrants to the Company
that each Free Writing Prospectus required to be provided by it to
the
Company pursuant to Section 4(c)(ii) did not, when read together
with
all other materials delivered to investors prior to the Time of
Sale,
as of the Time of Sale and at the Closing Date will not, contain
any
untrue statement of a material fact, or omit any material fact
necessary to make the statements contained therein, in light of
the
circumstances under which they were made, not misleading;
provided,
however, that the Underwriter makes no representation to the
extent
such misstatements or omissions were the result of any
inaccurate
Issuer Information supplied by the Company or any Mortgage Loan
Seller
to the Underwriter, which information was not corrected by
Corrective
Information subsequently supplied by the Company or any Mortgage
Loan
Seller to the Underwriter prior to the Time of Sale.
(v) The Company agrees to file with the Commission the
following:
(A) The Term Sheet;
(B) Any Issuer Free Writing Prospectus to the extent
required to be filed with the Commission by Rule 433 under the
1933 Act;
(C) Any Free Writing Prospectus or portion thereof
delivered by the Underwriter to the Company pursuant to
Section 4(c)(ii); and
(D) Any Free Writing Prospectus for which the Company
or any person acting on its behalf provided, authorized or
approved information that is prepared and published or
disseminated by a person unaffiliated with the Company or any
other offering participant that is in the business of
publishing, radio or television broadcasting or otherwise
disseminating communications.
(vi) Any Free Writing Prospectus required to be filed pursuant
to Section 4(c)(v) by the Company shall be filed with the
Commission
not later than the date of first use of the Free Writing
Prospectus,
except that:
(A) Any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the
final terms of the Underwritten Certificates shall be filed by
the Company with the Commission within two days of the later
of the date such final terms have been established for all
classes of Underwritten Certificates and the date of first
use;
(B) Any Free Writing Prospectus or portion thereof
required to be filed that contains only ABS Informational and
Computational Material shall be filed by the Company with the
Commission not later than the later of the due date for filing
the final Prospectus relating to the Underwritten Certificates
pursuant to Rule 424(b) under the 1933 Act or two business
days after the first use of such Free Writing Prospectus;
(C) Any Free Writing Prospectus required to be filed
pursuant to Section 4(c)(v)(C) shall, if no payment has been
made or consideration has been given by or on behalf of the
Company for the Free Writing Prospectus or its dissemination,
be filed by the Company with the Commission not later than
four business days after the Company becomes aware of the
publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus; and
(D) The Company shall not be required to file (1)
Issuer Information contained in any Free Writing Prospectus of
an Underwriter or any other offering participant other than
the Company, if such information is included or incorporated
by reference in a prospectus or Free Writing Prospectus
previously filed with the Commission that relates to the
offering of the Underwritten Certificates, or (2) any Free
Writing Prospectus or portion thereof that contains a
description of the Underwritten Certificates or the offering
of the Underwritten Certificates which does not reflect the
final terms thereof.
(vii) The Underwriter shall file with the Commission any Free
Writing Prospectus that is used or referred to by it and
distributed by
or on behalf of the Underwriter in a manner reasonably designed to
lead
to its broad, unrestricted dissemination not later than the date of
the
first use of such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section 4(c)(vii),
the Underwriter shall file with the Commission any Free Writing
Prospectus for which the Underwriter or any person acting on its
behalf
provided, authorized or approved information that is prepared
and
published or disseminated by a person unaffiliated with the Company
or
any other offering participant that is in the business of
publishing,
radio or television broadcasting or otherwise disseminating
written
communications and for which no payment was made or consideration
given
by or on behalf of the Company or any other offering participant,
not
later than four business days after the Underwriter becomes aware
of
the publication, radio or television broadcast or other
dissemination
of the Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 4(c)(v) and
4(c)(vii), neither the Company nor the Underwriter shall be
required to
file any Free Writing Prospectus that does not contain
substantive
changes from or additions to a Free Writing Prospectus previously
filed
with the Commission.
(x) The Company and the Underwriter each agree that any Free
Writing Prospectuses prepared by it shall contain the following
legend:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents
the depositor has filed with the SEC for more complete
information about the depositor and this offering. You may get
these documents for free by visiting EDGAR on the SEC Web site
at www.sec.gov. Alternatively, the depositor, any underwriter
or
any dealer participating in the offering will arrange to
send you the prospectus if you request it by calling toll-free
1-800-745-2063
(xi) The Company and the Underwriter agree to retain all Free
Writing Prospectuses that they have used and that are not required
to
be filed pursuant to this Section 4 for a period of three years
following the initial bona fide offering of the Underwritten
Certificates.
(xii) In the event that the Company becomes aware that, as of
the Time of Sale, any Issuer Free Writing Prospectus contains
any
untrue statement of a material fact or omits to state a material
fact
necessary in order to make the statements contained therein, in
light
of the circumstances under which they were made, not misleading
(a
"Defective Issuer Free Writing Prospectus"), the Company shall
notify
the Underwriters thereof within one business day after discovery
and
the Company shall, if requested by the Underwriters, prepare
and
deliver to the Underwriters a Free Writing Prospectus that corrects
the
material misstatement or omission in the Defective Issuer Free
Writing
Prospectus (such corrected Issuer Free Writing Prospectus, a
"Corrected
Issuer Free Writing Prospectus").
(A) In the event that the Underwriter becomes aware
that, with respect to any purchaser of an Underwritten
Certificate, any Free Writing Prospectus prepared by or on
behalf of the Underwriter (each, an "Underwriter Free Writing
Prospectus") and delivered to such purchaser contained any
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
contained therein, in light of the circumstances under which
they were made, not misleading, when considered in conjunction
with the Time of Sale Information (together with the Defective
Issuer Free Writing Prospectus, a "Defective Free Writing
Prospectus"), the Underwriter shall notify the Company and
each other Underwriter thereof within one business day after
discovery.
(B) The Underwriter shall, if requested by the
Company:
(1) if the Defective Free Writing Prospectus
was an Underwriter Free Writing Prospectus, prepare a
Free Writing Prospectus which corrects the material
misstatement in or omission from the Defective Free
Writing Prospectus (together with a Corrected Issuer
Free Writing Prospectus, a "Corrected Free Writing
Prospectus");
(2) deliver the Corrected Free Writing
Prospectus to each Underwriter and the Company so
that the Underwriters can each deliver the Corrected
Free
Writing Prospectus to their respective
purchasers of an Underwritten Certificate which
received the Defective Free Writing Prospectus prior
to entering into a contract of sale;
(3) if after the Time of Sale, notify such
purchaser in a prominent fashion that the prior
agreement to purchase Certificates has been
terminated, and of the purchaser's rights as a result
of termination of such agreement; and
(4) if after the Time of Sale, provide such
purchaser with an opportunity to affirmatively agree
to purchase the Underwritten Certificates on the
terms described in the Corrected Free Writing
Prospectus.
(5) comply with any other requirements for
reformation of the original contract of sale
described in Section IV.2.c of Commission's
Securities Offering Reform Release No. 33-8591
(C) With respect to this subsection (xii), each
Underwriter agrees that if the Company requests that an
Underwriter prepare a Corrected Free Writing Prospectus with
respect to a Defective Free Writing Prospectus that another
Underwriter prepared, such other Underwriter will prepare the
Corrected Free Writing Prospectus and will deliver the
Corrected Free Writing Prospectus to the Company and each
Underwriter so that each Underwriter may contact its
respective purchasers.
(D) To the extent any Defective Free Writing
Prospectus was defective as a result of incorrect Issuer
Information being delivered to an Underwriter, the Company
shall provide such corrected Issuer Information upon request
from the Underwriter. The Company shall also notify the other
Underwriters of such incorrect Issuer Information, to the
extent it is provided notice hereunder.
(xiii) The Underwriter covenants with the Company that after
the final Prospectus is available the Underwriter shall not
distribute
any written information concerning the Underwritten Certificates to
a
prospective purchaser of an Underwri
