EXHIBIT 1.1
WACHOVIA BANK
COMMERCIAL MORTGAGE TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-C23
UNDERWRITING AGREEMENT
Charlotte, North Carolina
February 24, 2006
WACHOVIA CAPITAL MARKETS, LLC
301 South College Street
One Wachovia Center
Charlotte, North Carolina 28288
NOMURA SECURITIES INTERNATIONAL, INC.
2 World Financial Center
Building B
New York, New York 10281
BANC OF AMERICA SECURITIES LLC
214 North Tryon Street
NC1-027-21-02
Charlotte, North Carolina 28225
DEUTSCHE BANK SECURITIES INC.
60 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
Dear Sirs:
Wachovia Commercial Mortgage Securities, Inc., a North Carolina
corporation (the
"Company"), intends to issue its Commercial Mortgage Pass-Through
Certificates,
Wachovia Bank Commercial Mortgage Trust, Series 2006-C23 (the
"Certificates"),
in fourteen (14) classes (each, a "Class") as designated in the
Prospectus
Supplement (as defined below). Pursuant to this underwriting
agreement (the
"Agreement"), the Company further proposes to sell to Wachovia
Capital Markets,
LLC ("Wachovia Securities"), Nomura Securities International, Inc.
("Nomura
Securities"), Banc of America Securities LLC ("Banc of America"),
Deutsche Bank
Securities Inc. ("Deutsche Bank"), Goldman, Sachs & Co.
("Goldman Sachs") and
J.P. Morgan Securities Inc. ("JPMorgan", and each of Wachovia
Securities, Nomura
Securities, Banc of America, Deutsche Bank, Goldman Sachs and JP
Morgan,
individually, an "Underwriter" and, collectively, the
"Underwriters") the
Certificates set forth in Schedule I hereto (the "Underwritten
Certificates") in
the respective original principal amounts set forth in Schedule I.
The
Certificates represent in the aggregate the entire beneficial
ownership interest
in a trust fund (the "Trust Fund") consisting of a segregated pool
(the
"Mortgage Pool") of Three Hundred and Five (305) mortgage loans
(the "Mortgage
Loans") having an approximate aggregate principal balance of
$4,229,859,030 of
the Cut-Off Date secured by first liens on certain fee or leasehold
interests in
multifamily and commercial properties (the "Mortgaged Properties").
The
Certificates will be issued on March 7, 2006 (the "Closing Date"),
pursuant to a
pooling and servicing agreement (the "Pooling and Servicing
Agreement"), dated
as of March 1, 2006 among the Company, Wachovia Bank, National
Association, as
master servicer (in such capacity, the "Master Servicer"), LNR
Partners, Inc.,
as special servicer (the "Special Servicer"), and Wells Fargo Bank,
N.A., as
trustee (the "Trustee"). One Hundred Thirty-Nine (139) of the
Mortgage Loans
(the "Wachovia Mortgage Loans"), having an aggregate principal
balance of
$2,903,975,599 as of the Cut-Off Date, were acquired by the Company
from
Wachovia Bank, National Association ("Wachovia") pursuant to a
mortgage loan
purchase agreement, dated as of March 1, 2006 (the "Wachovia
Mortgage Loan
Purchase Agreement"), between Wachovia and the Company.
Eighty-seven (87) of the
Mortgage Loans (the "Nomura Mortgage Loans"), having an aggregate
principal
balance of $897,454,002 as of the Cut-Off Date, were acquired by
the Company
from Nomura Credit & Capital, Inc. ("Nomura") pursuant to a
mortgage loan
purchase agreement, dated as of March 1, 2006 (the "Nomura Mortgage
Loan
Purchase Agreement") between Nomura and the Company. Seventy-nine
(79) of the
Mortgage Loans (the "Artesia Mortgage Loans"), having an aggregate
principal
balance of $428,429,428 as of the Cut-Off Date, were acquired by
the Company
from Artesia Mortgage Capital Corporation ("Artesia") pursuant to a
mortgage
loan purchase agreement, dated as of March 1, 2006 (the "Artesia
Mortgage Loan
Purchase Agreement" and, collectively with the Wachovia Mortgage
Loan Purchase
Agreement and the Nomura Mortgage Loan Purchase Agreement, the
"Mortgage Loan
Purchase Agreements"), between Artesia and the Company. Each of
Wachovia, Nomura
and Artesia is referred to herein, individually, as a "Mortgage
Loan Seller" and
collectively, as the "Mortgage Loan Sellers".
Two separate real estate mortgage investment conduit ("REMIC")
elections will be made with respect to certain portions of the
Trust Fund for
federal income tax purposes. The Underwritten Certificates and the
Mortgage Pool
are described more fully in Schedule I hereto and in a registration
statement
furnished to you by the Company.
Capitalized terms used but not otherwise defined herein shall
have
the respective meanings assigned to them in the Pooling and
Servicing Agreement.
1. Representations and Warranties. (a) The Company represents
and
warrants to, and agrees with, each Underwriter that:
(i) The Company has filed with the Securities and Exchange
Commission
(the "Commission") a registration statement (No. 333-127668) on
Form S-3
for the registration of Commercial Mortgage Pass-Through
Certificates, issuable in series, including the Underwritten
Certificates,
under the
Securities Act of 1933, as amended (the "1933 Act"), which
registration statement has become effective and a copy of which,
as
amended to
the date hereof, has heretofore been delivered to you. The
Company
meets the requirements for use of Form S-3 under the 1933 Act,
and
such
registration statement, as amended at the date hereof, meets
the
requirements set forth in Rule 415(a)(1)(x) under the 1933 Act
and
complies
in all other material respects with the 1933 Act and the rules
and
regulations thereunder. The Company proposes to file with the
Commission, with your consent, pursuant to Rule 424 under the 1933
Act, a
supplement
dated February 24, 2006 (the "Prospectus Supplement") to the
prospectus
dated February 24, 2006 (the "Base Prospectus"), relating to
the
Underwritten Certificates and the method of distribution thereof,
and
has
previously advised you of all further information (financial
and
other)
with respect to the Underwritten Certificates and the Mortgage
Pool
to be set
forth therein. Such registration statement (No. 333-127668),
including
all exhibits thereto, is referred to herein as the
"Registration
Statement"; and the Base Prospectus and the Prospectus
Supplement,
together
with any amendment thereof or supplement thereto authorized by
the
Company prior to the Closing Date for use in connection with
the
offering
of the Underwritten Certificates, are hereinafter called the
"Prospectus". As used herein, "Pool Information" means the mortgage
pool
information reflected in the Master Tape and the Prospectus
Supplement.
The
"Master Tape" shall mean the compilation of information and
data
regarding
the Mortgage Loans covered by the letters rendered by KPMG LLP
(a "hard
copy" of which Master Tape was produced on behalf of the
Mortgage
Loan
Sellers) described in Section 6(h)(ii) of this Agreement.
(ii) As of the date hereof, as of the Time of Sale (as defined
herein),
as of the date on which the Prospectus Supplement is first
filed
pursuant
to Rule 424 under the 1933 Act, as of the date on which, prior
to
the
Closing Date, any amendment to the Registration Statement
becomes
effective,
as of the date on which any supplement to the Prospectus
Supplement
is filed with the Commission, and as of the Closing Date, (i)
the
Registration Statement, as amended as of any such time, and the
Prospectus, as amended or supplemented as of any such time,
complies and
will
comply in all material respects with the applicable requirements
of
the 1933
Act and the rules and regulations thereunder, (ii) the
Registration Statement, as amended as of any such time, does not
include
and will
not include any untrue statement of a material fact and does
not
omit and
will not omit to state any material fact required to be stated
therein or
necessary in order to make the statements therein not
misleading, and (iii) the Prospectus, as amended or supplemented as
of any
such time,
does not include and will not include any untrue statement of a
material
fact and does not omit and will not omit to state any material
fact
necessary in order to make the statements therein, in the light
of
the
circumstances under which they were made, not misleading;
provided,
however,
that the Company makes no representations or warranties as to
(x)
statements
contained in or omitted from the Registration Statement or the
Prospectus
or any amendment or supplement thereto made in reliance upon
and in
conformity with information furnished in writing to the Company
by
or on
behalf of any Underwriter through you specifically for use in
the
Registration Statement and the Prospectus (such information
being
identified
in Section 8(b) hereof), (y) the Mortgage Loan Seller Covered
Information (as defined in Section 8 hereof) or (z) any information
with
respect to
which either the Master Servicer (the "Master Servicer Covered
Information"), the Special Servicer (the "Special Servicer
Covered
Information") or the Trustee (the "Trustee Covered Information")
provides
indemnification pursuant to the Master Servicer Indemnification
Agreement,
the
Special Servicer Indemnification Agreement or the Trustee
Indemnification Agreement, as applicable (as defined in Section 6
hereof).
(iii) The Company has been duly incorporated and is validly
existing
as a corporation in good standing under the laws of the State
of
North
Carolina with corporate power and authority to own, lease or
operate
its
properties and to conduct its business as now conducted by it and
to
enter into
and perform its obligations under this Agreement and the
Pooling
and Servicing Agreement; and the Company is duly qualified as a
foreign
corporation to transact business and is in good standing in
each
jurisdiction in which such qualification is required, whether by
reason of
the
ownership or leasing of property or the conduct of business.
(iv) As of the date hereof, as of the date on which the
Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933
Act, as of
the date on which, prior to the Closing Date, any amendment to
the
Registration Statement becomes effective, as of the date on which
any
supplement
to the Prospectus Supplement is filed with the Commission, and
as of the
Closing Date, there has not and will not have been (i) any
request by
the Commission for any further amendment to the Registration
Statement
or the Prospectus or for any additional information, (ii) any
issuance
by the Commission of any stop order suspending the
effectiveness
of the
Registration Statement or the institution or threat of any
proceeding
for that purpose or (iii) any notification with respect to the
suspension of
the qualification of the Underwritten Certificates for sale
in any
jurisdiction or any initiation or threat of any proceeding for
such
purpose.
(v) Each of this Agreement, the Pooling and Servicing
Agreement
and each Mortgage Loan Purchase Agreement has been duly
authorized, executed and delivered by the Company and each of
this
Agreement,
the Pooling and Servicing Agreement, and each Mortgage Loan
Purchase
Agreement constitutes legal, valid and binding agreements of
the
Company,
enforceable against the Company in accordance with their
respective
terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, moratorium or
other
similar
laws affecting the enforcement of the rights of creditors
generally,
(ii) general principles of equity, whether enforcement is
sought in
a proceeding in equity or at law, and (iii) public policy
considerations underlying the securities laws, to the extent that
such
public
policy considerations limit the enforceability of the provisions
of
this
Agreement, the Pooling and Servicing Agreement or any Mortgage
Loan
Purchase
Agreement that purport to provide indemnification from
securities
law
liabilities.
(vi) As of the Closing Date, the Underwritten Certificates,
the
Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreements
will conform in all material respects to the respective
descriptions thereof contained in the Prospectus. As of the Closing
Date,
the
Underwritten Certificates will be duly and validly authorized
and,
when
delivered in accordance with the Pooling and Servicing Agreement
to
you
against payment therefor as provided herein, will be duly and
validly
issued and
outstanding and entitled to the benefits of the Pooling and
Servicing
Agreement.
(vii) The Company is not in violation of its certificate of
incorporation or by laws or in default under any agreement,
indenture or
instrument
the effect of which violation or default would be material to
the
Company or which violation or default would have a material
adverse
affect on
the performance of its obligations under this Agreement, the
Pooling
and Servicing Agreement or any Mortgage Loan Purchase
Agreement.
Neither
the issuance and sale of the Underwritten Certificates, nor the
execution
and delivery by the Company of this Agreement, any Mortgage
Loan
Purchase
Agreement or the Pooling and Servicing Agreement nor the
consummation by the Company of any of the transactions herein or
therein
contemplated, nor compliance by the Company with the provisions
hereof or
thereof,
did, does or will conflict with or result in a breach of any
term
or
provision of the certificate of incorporation or by laws of the
Company
or
conflict with, result in a breach, violation or acceleration of,
or
constitute
a default (or an event which, with the passing of time or
notification, or both, would constitute a default) under, the terms
of any
indenture
or other agreement or instrument to which the Company is a
party
or by
which it or any material asset is bound, or any statute, order
or
regulation
applicable to the Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
the
Company.
(viii) There is no
action, suit or proceeding against the
Company
pending, or, to the knowledge of the Company, threatened,
before
any court,
arbitrator, administrative agency or other tribunal (i)
asserting
the invalidity of this Agreement, the Pooling and Servicing
Agreement,
any Mortgage Loan Purchase Agreement or the Underwritten
Certificates, (ii) seeking to prevent the issuance of the
Underwritten
Certificates or the consummation of any of the transactions
contemplated
by this
Agreement, (iii) that might materially and adversely affect the
performance by the Company of its obligations under, or the
validity or
enforceability of, this Agreement, the Pooling and Servicing
Agreement,
any
Mortgage Loan Purchase Agreement or the Underwritten Certificates
or
(iv)
seeking to affect adversely the federal income tax attributes of
the
Underwritten Certificates as described in the Prospectus.
(ix) There are no contracts, indentures or other documents of
a
character required by the 1933 Act or by the rules and
regulations
thereunder
to be described or referred to in the Registration Statement or
the
Prospectus or to be filed as exhibits to the Registration
Statement
which have
not been so described or referred to therein or so filed or
incorporated by reference as exhibits thereto.
(x) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with
the
offering
or sale of the Underwritten Certificates pursuant to this
Agreement,
except such as have been, or as of the Closing Date will have
been,
obtained or such as may otherwise be required under applicable
state
securities
laws in connection with the purchase and offer and sale of the
Underwritten Certificates by the Underwriters and any recordation
of the
respective
assignments of the Mortgage Loans to the Trustee pursuant to
the Pooling and
Servicing Agreement that have not been completed.
(xi) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate
state,
federal or
foreign regulatory agencies or bodies necessary to conduct the
business
now operated by it, and the Company has not received any notice
of
proceedings relating to the revocation or modification of any
such
license,
certificate, authority or permit which, singly or in the
aggregate,
if the subject of any unfavorable decision, ruling or finding,
would
materially and adversely affect the condition, financial or
otherwise,
or the earnings, business affairs or business prospects of the
Company.
(xii) Any taxes, fees and other governmental charges in
connection
with the execution and delivery of this Agreement and the
delivery
and sale of the Underwritten Certificates (other than such
federal,
state and local taxes as may be payable on the income or gain
recognized
therefrom) have been or will be paid at or prior to the Closing
Date.
(xiii) Neither the Company nor the Trust Fund is, and neither
the sale
of the Underwritten Certificates in the manner contemplated by
the
Prospectus nor the activities of the Trust Fund pursuant to the
Pooling
and Servicing Agreement will cause the Company or the Trust
Fund
to be, an
"investment company" or under the control of an "investment
company"
as such terms are defined in the Investment Company Act of
1940,
as amended
(the "Investment Company Act").
(xiv) Under generally accepted accounting principles ("GAAP")
and for
federal income tax purposes, the Company reported the transfer
of
the
Mortgage Loans to the Trustee in exchange for the Certificates
and
will
report the sale of the Underwritten Certificates to the
Underwriters
pursuant
to this Agreement as a sale of the interests in the Mortgage
Loans
evidenced by the Underwritten Certificates. The consideration
received
by the Company upon the sale of the Underwritten Certificates
to
the
Underwriters will constitute reasonably equivalent value and
fair
consideration for the Underwritten Certificates. The Company will
be
solvent at
all relevant times prior to, and will not be rendered insolvent
by, the
sale of the Underwritten Certificates to the Underwriters. In
addition,
the Company was solvent at all relevant times prior to, and was
not
rendered insolvent by, the transfer of the Mortgage Loans to
the
Trustee on
behalf of the Trust Fund. The Company is not selling the
Underwritten Certificates to the Underwriters and did not transfer
the
Mortgage
Loans to the Trustee on behalf of the Trust Fund with any
intent
to hinder,
delay or defraud any of the creditors of the Company.
(xv) At the Closing Date, the respective classes of
Underwritten Certificates shall continue to have maintained ratings
no
lower than
those set forth in Schedule I hereto by the nationally
recognized
statistical rating organizations identified in Schedule I
hereto
(individually and collectively, the "Rating Agency").
(xvi) The Company is not, and on the date on which the initial
bona fide
offer of the Underwritten Certificates is made will not be, an
"ineligible issuer," as defined in Rule 405 under the 1933 Act.
(xvii) At or prior to the time when sales to investors of the
Underwritten Certificates were first made as determined in
accordance with
Rule 159
of the 1933 Act (the "Time of Sale"), the Company had prepared
the
following information (collectively, the "Time of Sale
Information"):
each
"free-writing prospectus" (as defined pursuant to Rule 405 under
the
1933 Act)
(a "Free Writing Prospectus") listed on Annex A hereto. If,
subsequent
to the date of this Agreement, the Company and the Underwriters
have
determined that such information included an untrue statement
of
material
fact or omitted to state a material fact necessary in order to
make the
statements therein, in the light of the circumstances under
which
they were
made, not misleading and have terminated their old purchase
contracts
and entered into new purchase contracts with purchasers of the
Underwritten Certificates, then "Time of Sale Information", in
connection
with a
particular purchaser of the Underwritten Certificates will refer
to
the
information available to such purchaser at the time of entry into
the
last such
new purchase contract with such particular purchaser, including
any
information that corrects such material misstatements or
omissions
("Corrective Information").
(xviii) The Time of Sale Information, at the Time of Sale did
not, and
at the Closing Date will not, contain any untrue statement of a
material
fact or omit to state a material fact necessary in order to
make
the
statements therein, in the light of the circumstances under which
they
were made,
not misleading; provided that the Company makes no
representation and warranty with respect to (i) any statements
or
omissions
relating to any Underwriter made in reliance upon and in
conformity
with information furnished to the Company in writing by such
Underwriter expressly for use in such Time of Sale Information,
(ii) any
Mortgage
Loan Seller Covered Information (as defined herein) in such
Time
of Sale
Information or (iii) any Master Servicer Covered Information,
any
Special
Servicer Covered Information or any Trustee Covered
Information.
(xix) Other than the Prospectus, the Company (including its
agents and
representatives other than the Underwriters in their capacity
as such)
has not made, used, prepared, authorized, approved or referred
to
and will not prepare,
make, use, authorized, approve or refer to any
"written
communication" (as defined in Rule 405 under the 1933 Act) that
constitutes an offer to sell or solicitation of an offer to buy
the
Underwritten Certificates other than (i) any document not
constituting a
prospectus
pursuant to Section 2(a)(10)(a) of the 1933 Act or Rule 134
under the
1933 Act, (ii) the Time of Sale Information and (iii) each
other
written
communication approved in writing in advance by the
Underwriters
(each such
communication referred to in clause (ii) and this clause (iii)
constituting an "issuer free writing prospectus", as defined in
Rule
433(h)
under the 1933 Act being referred to as an "Issuer Free Writing
Prospectus"). Each such Issuer Free Writing Prospectus complied in
all
material
respects with the 1933 Act, has been filed in accordance with
Section
4(c)(iv) (to the extent required thereby) and, when taken
together
with all
other material delivered at the Time of Sale, did not at the
Time
of Sale,
and at the Closing Date will not, contain any untrue statements
of a
material fact or omit to state a material fact necessary in order
to
make the
statements therein, in the light of the circumstances under
which
they were
made, not misleading; provided that the Company makes no
representation and warranty with respect to (i) any statements
or
omissions
made in reliance upon and in conformity with information
relating
to any Underwriter furnished to the Company in writing by such
Underwriter expressly for use in any Issuer Free Writing
Prospectus, (ii)
any
Mortgage Loan Seller Covered Information or (iii) any Master
Servicer
Covered
Information, any Special Servicer Covered Information or any
Trustee
Covered Information in any Issuer Free Writing Prospectus.
(b) 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) In connection with the offering of the Underwritten
Certificates, the Underwriters may each prepare and provide to
prospective
investors Free Writing Prospectuses (as defined below), or portions
thereof,
which the Company is required to file with the Commission in
electronic format
and will use reasonable efforts to provide to the Company such Free
Writing
Prospectuses, or portions thereof, in either Microsoft Word(R) or
Microsoft
Excel(R) format and not in Adobe Acrobat(R) PDF format, except to
the extent
that the Company, in its sole discretion, waives such requirements,
subject to
the following conditions (to which such conditions each Underwriter
agrees
(provided that no Underwriter is responsible for any breach of the
following
conditions by any other Underwriter)):
(i) Unless preceded or accompanied by a prospectus satisfying
the
requirements of Section 10(a) of the 1933 Act, the Underwriters
shall
not convey
or deliver any written communication to any person in
connection
with the initial offering of the Underwritten Certificates,
unless
such written communication (1) is made in reliance on Rule 134
under the
1933 Act, (2) constitutes a prospectus satisfying the
requirements of Rule 430B under the 1933 Act or (3) constitutes a
Free
Writing
Prospectus. The Underwriter shall not convey or deliver in
connection
with the initial offering of the Underwritten Certificates any
"ABS
informational and computational material," as defined in Item
1101(a)
of
Regulation AB under the 1933 Act ("ABS Informational and
Computational
Material"), in reliance upon Rules 167 and 426 under the 1933
Act.
(ii) The Underwriter shall deliver to the Company, no later
than two
business days prior to the date of first use thereof, (a) any
Free
Writing Prospectus prepared by or on behalf of the Underwriter
that
contains
any "issuer information," as defined in Rule 433(h) under the
1933 Act
and footnote 271 of the Commission's Securities Offering Reform
Release
No. 33-8591 ("Issuer Information") (which the parties hereto
agree
includes,
without limitation, Mortgage Loan Seller Covered Information),
and (b)
any Free Writing Prospectus or portion thereof that contains
only
a
description of the final terms of the Underwritten
Certificates.
Notwithstanding the foregoing, any Free Writing Prospectus that
contains
only ABS
Informational and Computational Materials may be delivered by
the
Underwriter to the Company not later than the later of (a) two
business
days prior
to the due date for filing of the Prospectus pursuant to Rule
424(b)
under the 1933 Act or (b) the date of first use of such Free
Writing
Prospectus.
(iii) The Underwriter represents and warrants to the Company
that the
Free Writing Prospectuses to be furnished to the Company by the
Underwriter pursuant to Section 4(c)(ii) will constitute all Free
Writing
Prospectuses of the type described therein that were furnished
to
prospective investors by the Underwriter in connection with its
offer and
sale of
the Underwritten Certificates.
(iv) The Underwriter represents and warrants to the Company
that each
Free Writing Prospectus required to be provided by it to the
Company
pursuant to Section 4(c)(ii) did not, when read together with
all
other
materials delivered to investors prior to the Time of Sale, as
of
the Time
of Sale and at the Closing Date will not, contain any untrue
statement
of a material fact, or omit any material fact necessary to make
the
statements contained therein, in light of the circumstances
under
which they
were made, not misleading; provided, however, that the
Underwriter makes no representation to the extent such
misstatements or
omissions
were the result of any inaccurate Issuer Information supplied
by
the
Company or any Mortgage Loan Seller to the Underwriter, which
information was not corrected by Corrective Information
subsequently
supplied
by the Company or any Mortgage Loan Seller to the Underwriter
prior to
the Time of Sale.
(v) The Company agrees to file with the Commission the
following:
(A) Any Issuer Free Writing Prospectus to the extent
required to be filed with the Commission by Rule 433 under the
1933
Act;
(B) Any Free Writing Prospectus or portion thereof
delivered by the Underwriter to the Company pursuant to Section
4(c)(ii); and
(C) Any Free Writing Prospectus for which the Company or
any person acting on its behalf provided, authorized or
approved
information that is prepared and published or disseminated by a
person unaffiliated with the Company or any other offering
participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating
communications.
(vi) Any Free Writing Prospectus required to be filed pursuant
to Section
4(c)(v) by the Company shall be filed with the Commission not
later than
the date of first use of the Free Writing Prospectus, except
that:
(A) Any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the
final
terms of the Underwritten Certificates shall be filed by the
Company
with the Commission within two days of the later of the date
such
final terms have been established for all classes of
Underwritten
Certificates and the date of first use;
(B) Any Free Writing Prospectus or portion thereof
required to be filed that contains only ABS Informational and
Computational Material shall be filed by the Company with the
Commission not later than the later of the due date for filing
the
final Prospectus relating to the Underwritten Certificates
pursuant
to Rule 424(b) under the 1933 Act or two business days after
the
first use of such Free Writing Prospectus;
(C) Any Free Writing Prospectus required to be filed
pursuant to Section 4(c)(v)(C) shall, if no payment has been made
or
consideration has been given by or on behalf of the Company for
the
Free Writing Prospectus or its dissemination, be filed by the
Company with the Commission not later than four business days
after
the Company becomes aware of the publication, radio or
television
broadcast or other dissemination of the Free Writing Prospectus;
and
(D) The Company shall not be required to file (1) Issuer
Information contained in any Free Writing Prospectus of an
Underwriter or any other offering participant other than the
Company, if such information is included or incorporated by
reference in a prospectus or Free Writing Prospectus previously
filed with the Commission that relates to the offering of the
Underwritten Certificates, or (2) any Free Writing Prospectus
or
portion thereof that contains a description of the Underwritten
Certificates or the offering of the Underwritten Certificates
which
does not reflect the final terms thereof.
(vii) The Underwriter shall file with the Commission any Free
Writing
Prospectus that is used or referred to by it and distributed by
or
on behalf
of the Underwriter in a manner reasonably designed to lead to
its broad,
unrestricted dissemination not later than the date of the first
use of
such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section 4(c)(vii),
the
Underwriter shall file with the Commission any Free Writing
Prospectus
for which
the Underwriter or any person acting on its behalf provided,
authorized
or approved information that is prepared and published or
disseminated by a person unaffiliated with the Company or any
other
offering
participant that is in the business of publishing, radio or
television
broadcasting or otherwise disseminating written communications
and for
which no payment was made or consideration given by or on
behalf
of the
Company or any other offering participant, not later than four
business
days after the Underwriter becomes aware of the publication,
radio or
television broadcast or other dissemination of the Free Writing
Prospectus.
(ix) Notwithstanding the provisions of Sections 4(c)(v) and
4(c)(vii),
neither the Company nor the Underwriter shall be required to
file any
Free Writing Prospectus that does not contain substantive
changes
from or
additions to a Free Writing Prospectus previously filed with
the
Commission.
(x)
The Company and the Underwriter each agree that any Free
Writing
Prospectuses prepared by it shall contain the following legend:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents
the depositor has filed with the SEC for more complete
information about the depositor and this offering. You may get
these documents for free by visiting 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;
(4) if after the Time of Sale, provide such
purchaser with an opportunity to affirmatively agree to
purchase the Underwritten Certificates on the terms described
in the Corrected Free Writing Prospectus; and
(5) comply with any other requirements for
reformation of the original contract of sale described in
Section IV.2.c of Commission's Securities Offering Reform
Release No. 33-8591.
(C) With respect to this subsection (xii), each
Underwriter agrees that if the Company requests that an
Underwriter
prepare a Corrected Free Writing Prospectus with respect to a
Defective Free Writing Prospectus that another Underwriter
prepared,
such other Underwriter will prepare the Corrected Free Writing
Prospectus and will deliver the Corrected Free Writing Prospectus
to
the Company and each Underwriter so that each Underwriter may
contact its respective purchasers.
(D) To the extent any Defective Free Writing Prospectus
was defective as a result of incorrect Issuer Information being
delivered to an Underwriter, the Company shall provide such
corrected Issuer Information upon request from the Underwriter.
The
Company shall also notify the other Underwriters of such
incorrect
Issuer Information, to the extent it is provided notice
hereunder.
(xiii) The Underwriter covenants with the Company that after
the final
Prospectus is available the Underwriter shall not distribute
any
written
information concerning the Underwritten Certificates to a
prospective purchaser of an Underwritten Certificate unless
such
information is preceded or accompanied by the final Prospectus.
(ii) Each Underwriter further represents and warrants that it
has
offered and sold Underwritten Certificates only to, or directed at,
persons who:
(i) are outside the United Kingdom;
(ii) have professional experience in participating in
unregulated collective investment schemes; or
(iii) are persons falling within Article 22(2)(a) through (d)
of the
Financial Services and Markets Act 2000 (Promotion of
Collective
Investment
Schemes) (Exemptions) Order 2001.
5. Covenants of the Company. The Company covenants and agrees
with
the Underwriters that:
(a) The Company will not file any amendment to the Registration
Statement (other than by reason of Rule 429 under the 1933 Act) or
any
supplement to the Base Prospectus relating to or affecting the
Underwritten
Certificates, unless the Company has furnished a copy to you for
your review a
reasonable time prior to filing, and will not file any such
proposed amendment
or supplement to which you reasonably object. Subject to the
foregoing sentence,
the Company will cause the Prospectus Supplement to be transmitted
to the
Commission for filing pursuant to Rule 424 under the 1933 Act or
will cause the
Prospectus Supplement to be filed with the Commission pursuant to
said Rule 424.
The Company promptly will advise you or counsel for the
Underwriters (i) when
the Prospectus Supplement shall have been filed or transmitted to
the Commission
for filing pursuant to Rule 424, (ii) when any amendment to the
Registration
Statement shall have become effective, (iii) of any request by the
Commission to
amend the Registration Statement or supplement the Prospectus
Supplement or for
any additional information in respect of the offering contemplated
hereby, (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness
of the Registration Statement or any post effective amendment
thereto which
shall have become effective on or prior to the Closing Date or the
institution
or threatening of any proceeding for that purpose and (v) of the
receipt by the
Company of any notification with respect to the suspension of the
qualification
of the Underwritten Certificates for sale in any jurisdiction or
the institution
or threatening of any proceeding for that purpose. The Company will
use its best
efforts to prevent the issuance of any such stop order or
suspension and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Underwritten
Certificates is required to be delivered under the 1933 Act, any
event occurs as
a result of which the Prospectus, as then amended or supplemented,
would include
any untrue statement of a material fact or omit to state any
material fact
necessary to make the statements therein, in the light of the
circumstances
under which they were made, not misleading, or if it shall be
necessary to amend
or supplement the Prospectus to comply with the 1933 Act or the
rules and
regulations thereunder, the Company promptly will prepare and file
with the
Commission, at the expense of the C
