EXHIBIT 1.1
UNDERWRITING AGREEMENT
(Pass-Through Certificates)
New York, New York
, 200
[Lead Underwriter's name and address]
Ladies and Gentlemen:
Wachovia
Mortgage
Loan
Trust,
LLC (the
"Company"),
proposes to sell to the
underwriters
named in Schedule II hereto (the
"Underwriters"),
for whom you are acting as
representative
(the
"Representative"),
the
principal
amount
of
the
Pass-Through
Certificates,
Series 200 - ,
identified
in
Schedule I hereto (the
"Securities"),
to be
issued under a pooling and
servicing
agreement
(the
"Pooling and
Servicing
Agreement")
dated
as
of
,
200
,
among
the
Company,
,
as
servicer
(in
such
capacity, the "Servicer"), and
, as trustee (the "Trustee").
Each
class of
Securities
listed
in
Schedule
I
hereto
will
represent
an
undivided
beneficial
ownership
interest
in
the
Trust
200
-
(the
"Trust").
The
assets
of the Trust
will
include,
among
other
things,
a pool of
fixed-rate
and
adjustable-rate
one-to-four-family
residential
mortgage
loans
(the
"Mortgage
Loans")
transferred
to the
Company
pursuant
to a
mortgage
loan
purchase
agreement
dated
as
of
,
200
(the
"Mortgage
Loan
Purchase
Agreement"),
between
and
the
Company,
and by the Company to the Trust
pursuant to the Pooling and Servicing
Agreement.
Custody
of the
Mortgage
Files
with
respect to the
Mortgage
Loans
will be
maintained
by
,
as
custodian
(the
"Custodian").
This
Underwriting
Agreement
shall
hereinafter be referred to as the
"Agreement."
This
Agreement,
the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreement are collectively
hereinafter referred to
as the "Basic
Documents."
Capitalized
terms used herein and not
otherwise
defined shall
have the meanings ascribed thereto in the Pooling and Servicing
Agreement.
1.
Representations
and Warranties.
(A) The Company
represents and warrants
to, and agrees with, each Underwriter that:
(a)
The
Company
meets
the
requirements
for
use of
Form
S-3
under
the
Securities
Act of 1933,
as amended
(the
"Act"),
and has filed with the
Securities
and
Exchange
Commission
(the
"Commission")
a
registration
statement on such Form (the file
number of which is set forth in Schedule I hereto),
which has been
declared
effective
by
the Commission,
for the
registration
under the Act of the Securities.
Such
registration
statement,
as amended to the date of this Agreement,
meets the
requirements
set forth in
Rule
415(a)(1)
under the Act and complies in all other
material
respects with said Rule.
The
Company
proposes
to file
with the
Commission
pursuant
to Rule 424 under the Act a
supplement to the form of prospectus
included in such
registration
statement
relating to
the
Securities
and the
plan
of
distribution
thereof
and has
previously
advised
the
Representative of all further information
(financial and other) with respect to the Company
to be set forth therein.
Such registration
statement,
including the exhibits thereto,
as
amended to the date of this Agreement,
is hereinafter called the "Registration
Statement";
such
prospectus
in the
form
in
which
it
appears
in
the
Registration
Statement
is
hereinafter
called
the
"Base
Prospectus";
and
such
supplemented
form of
prospectus,
supplemented by a prospectus supplement hereinafter called the
"Prospectus
Supplement",
in
the form in which it shall be filed with the Commission
pursuant to Rule 424 (including the
Base Prospectus as so supplemented) is hereinafter
called the
"Prospectus."
Any reference
herein to the Registration Statement,
the Base Prospectus or the Prospectus shall be deemed
to refer to and include the documents
incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the
Securities
Exchange
Act of 1934,
as amended
(the
"Exchange
Act"),
on or before
the date of this
Agreement,
or the issue date of the Base
Prospectus
or the
Prospectus,
as the case may be; and any
reference
herein to the terms
"amend,"
"amendment" or "supplement" with respect to the Registration
Statement,
the Base
Prospectus
or the
Prospectus
shall be deemed to refer to and
include
the
filing of any
document under the Exchange Act after the date of this
Agreement,
or the issue date of the
Base
Prospectus
or the
Prospectus,
as the case may be,
and
deemed
to be
incorporated
therein by reference pursuant to Item 12 of Form S-3 under the Act.
(b)
As of the date
hereof,
when the
Prospectus
is first filed
pursuant to
Rule 424 under the Act,
when,
prior to the
Closing
Date (as
hereinafter
defined),
any
amendment to the
Registration
Statement
becomes
effective
(including
the filing of any
document
incorporated by reference in the Registration
Statement),
when any supplement to
the
Prospectus
is filed with the
Commission
and at the
Effective
Date (as
hereinafter
defined),
(i)
the
Registration
Statement,
as
amended
as of any
such
time,
and
the
Prospectus,
as amended or
supplemented
as of any such time,
will comply in all
material
respects
with
the
requirements
of the Act
and
the
respective
rules
and
regulations
thereunder,
(ii) the
Registration
Statement,
as amended
as of any such
time,
will not
contain any untrue
statement of a material fact or omit to state any material fact
required
to be stated
therein or necessary in order to make the statements
therein not
misleading,
(iii) the
Prospectus,
as amended or supplemented as of any such time, will not contain
any
untrue
statement
of a material
fact or omit to state any
material
fact
required
to be
stated
therein
or
necessary
in
order to make the
statements
therein,
in light of the
circumstances
under which they were made,
not
misleading;
(iv) each Issuer Free
Writing
Prospectus (as
hereinafter
defined),
as amended or supplemented as of any such time prior
to the date of the related Prospectus
Supplement,
will not contain any untrue statement of
a
material
fact or omit to state
any
material
fact
required
to be stated
therein
or
necessary
in order to make the
statements
therein,
in light of the
circumstances
under
which they were made, not
misleading;
and (v) the Base
Prospectus
and Designated
Static
Pool
Information (as hereinafter
defined),
taken together,
as of the date of the related
Prospectus
Supplement,
will not contain any untrue statement of a material fact or omit to
state any
material
fact
required to be stated
therein or
necessary in order to make the
statements
therein,
in
light
of the
circumstances
under
which
they
were
made,
not
misleading;
provided,
however,
that the Company makes no representations or warranties as
to (A) the
information
contained
in or omitted
from the
Registration
Statement
or the
Prospectus
or
any
amendment
thereof
or
supplement
thereto
in
reliance
upon
and in
conformity
with
information
furnished
in writing
to the
Company by or on behalf of any
Underwriter
through
the
Representative
specifically
for
use
in
connection
with
the
preparation of the
Registration
Statement and the
Prospectus,
(B) the Current Report (as
defined
in
Section
5(b)
below),
or in any
amendment
thereof
or
supplement
thereto,
incorporated by reference in the Registration
Statement or the Prospectus (or any amendment
thereof
or
supplement
thereto),
or (C)
any
information
contained
in any
Underwriter
Prepared
Issuer FWP (as
hereinafter
defined) or Underwriter
Free Writing
Prospectus (as
hereinafter
defined),
except, in each case, to the extent of (x) any information set
forth
therein that constitutes
Pool
Information (as hereinafter
defined) or (y) any information
accurately
extracted
from
any
Issuer
Free
Writing
Prospectus
and
included
in
any
Underwriter Prepared Issuer FWP or Underwriter Free Writing
Prospectus.
-2-
(c)
(i)
"ABS
Informational
and
Computational
Materials"
shall
have the
meaning given such term in Item 1101 of Regulation AB.
(ii)
"Approved
Offering
Materials"
means with
respect to any class of
Certificates,
collectively the following documents as most recently provided by
the Company
and designated in writing by the Company as Approved
Offering
Materials
prior to the time
of any Contract of Sale: (i) one or more term sheets,
providing
factual
information about
the
Certificates
and the structure and basic
parameters
thereof
(excluding
information
about
the
subdivision
of the
senior
classes
into
tranches),
the
basic
terms of the
subordination or other credit enhancements if known,
factual information about the Mortgage
Loans (which may include
parameters
or "stips" or tabular data
prepared by the
Company),
the
identity of and basic
information
about key parties to the
transaction
known to the
Company,
and the tax,
ERISA and SMMEA
characteristics
of the
Certificates,
(ii) a term
sheet supplement,
containing risk factors and additional
information of the type to appear
in the Prospectus
Supplement to the extent known, and (iii) the Base Prospectus,
which may
be
provided
by a weblink.
Each of the items
described
in (i) and (ii) in the
preceding
sentence shall constitute an Issuer Free Writing
Prospectus and any additional
information
provided by the
Underwriter
shall
constitute an
Underwriter
Free Writing
Prospectus or
Underwriter Prepared Issuer FWP, as the case may be.
(iii) "Contract
of Sale" has the same
meaning as in Rule 159 of the 1933
Act Regulations and all Commission guidance relating to Rule 159.
(iv)
"Designated
Static
Pool
Information"
shall mean the static
pool
information
referred to in the Prospectus under the caption ["Static Pool
Information"] but
deemed to be
excluded
from the
Registration
Statement
and
Prospectus
pursuant to Item
1105(d) of Regulation AB.
(v)
"Effective
Date"
shall
mean the
earlier of the date on which the
Prospectus
is first
used
and the
time of the
first
Contract
of Sale
(as
hereinafter
defined) to which such
Prospectus
Supplement
relates.
The initial
effective date of the
Registration
Statement
was
within
three
years
of
the
Closing
Date
(as
hereinafter
defined).
If the third
anniversary of the initial
effective date occurs within six months
after the
Closing
Date,
the Company
will use best
efforts to take such action as may be
necessary
or
appropriate
to permit the public
offering and sale of the
Certificates
as
contemplated hereunder.
(vi)
"Free Writing
Prospectus" shall have the meaning given such term in
Rules 405 and 433 of the 1933 Act Regulations.
(vii) "Issuer
Free
Writing
Prospectus"
shall
mean
any
Free
Writing
Prospectus
prepared
by or on behalf of the
Company
and
identified
by the Company as an
Issuer Free Writing Prospectus and relating to the Certificates or
the offering thereof.
-3-
(viii)
"Issuer
Information"
shall mean any
information of the type
specified
in
clauses
(1)
- (5)
of
footnote
271
of
Commission
Release
No.
33-8591
(Securities Offering Reform),
other than Underwriter Derived
Information.
Consistent with
such definition,
"Issuer
Information"
shall not be deemed to include any information in a
Free Writing
Prospectus solely by reason of the Company's review of the
materials
pursuant
to Section
4.4(e) below and,
consistent
with
Securities
Offering
Reform
Questions and
Answers, November 30, 2005 promulgated by the staff of the
Commission,
"Issuer Information"
shall not be deemed to
include
any
information
in a Free
Writing
Prospectus
solely by
reason
that the
Underwriter
has agreed not to use such Free
Writing
Prospectus
without
consent of the Company.
(ix)
"Permitted
Additional Materials" shall mean information that is not
ABS
Informational
and
Computational
Materials
and (x) that are
referred
to in Section
4.4(c) so long as any Issuer
Information
provided by the
Underwriter
pursuant to Section
4.4(c) is limited to information
included
within the definition of ABS
Informational
and
Computational
Materials,
(y) that constitute
Certificate price,
yield,
weighted average
life,
subscription or allocation
information,
or a trade
confirmation,
or (z) otherwise
with
respect to which the
Company
has
provided
written
consent to the
Underwriter
to
include in a Free Writing Prospectus.
(x)
"Pool
Information"
means
with
respect
to
any
Free
Writing
Prospectus,
the information
(including any Preliminary Pool
Information)
with respect to
the
characteristics
of the
Mortgage
Loans and
administrative
and
servicing
fees,
as
provided
by or on behalf of the Company to the
Underwriter
at the time most recent to the
date of such Free Writing Prospectus.
(xi)
"Preliminary
Pool
Information"
means
with
respect
to any
Free
Writing
Prospectus,
the information
with respect to the
characteristics
of the Mortgage
Loans and
administrative
and servicing fees, as provided by or on behalf of the Company to
the
Underwriter
at the time most recent to the date of such Free
Writing
Prospectus
and
designated "Preliminary Pool Information".
(xii) "Underwriter
Derived Information" shall refer to information of the
type described in clause (5) of footnote 271 of Commission
Release No. 33-8591
(Securities
Offering Reform) when prepared by the Underwriter,
including traditional
computational and
analytical materials prepared by the Underwriter.
(xiii)
"Underwriter
Free
Writing
Prospectus"
shall
mean all Free
Writing Prospectuses
prepared by or on behalf of the Underwriter other than any
Underwriter
Prepared Issuer FWP, including any Permitted Additional Materials.
(xiv) "Underwriter
Prepared
Issuer
FWP"
shall
mean any
Free
Writing
Prospectus
or portion
thereof
prepared by or on behalf of the
Underwriter
that contains
only a
description
of the
final
terms
of the
Certificates
or of the
offering
of the
Certificates after the final terms have been established for all
classes of Certificates.
-4-
(xv)
"Written
Communication"
shall have the meaning
given such term in
Rule 405 of the 1933 Act Regulations.
(d)
The
Company
has been duly
formed and is validly
existing
as a limited
liability
company
in good
standing
under the laws of the State of
Delaware
and has all
requisite
power and
authority
to own its
properties
and
conduct its
business,
as now
conducted by it, and to enter into and perform its obligations
under this Agreement and the
other Basic Documents.
(e)
The
Company
is not aware of (i) any
request by the
Commission
for any
further
amendment
of
the
Registration
Statement
or the
Base
Prospectus
or
for
any
additional
information or (ii) the issuance by the Commission of any stop
order
suspending
the
effectiveness
of the
Registration
Statement or the institution or threatening of any
proceeding for that purpose.
(f)
This
Agreement
has been duly
authorized,
executed and delivered by the
Company, and the other Basic Documents,
when delivered by the Company,
will have been duly
authorized,
executed and delivered by the Company,
and will constitute a legal,
valid and
binding
agreement of the Company,
enforceable
against the Company in accordance
with its
terms,
subject, as to the enforcement of remedies,
to applicable
bankruptcy,
insolvency,
reorganization,
moratorium,
receivership
and similar
laws
affecting
creditors'
rights
generally and to general
principles of equity
(regardless
of whether the
enforcement
of
such remedies is
considered
in a proceeding in equity or at law),
and except as rights to
indemnity and
contribution
hereunder may be limited by federal or state securities laws or
principles of public policy.
(B)
Each Underwriter represents and warrants to, and agrees with, the
Company that:
(a)
As of the date
hereof and as of the Closing
Date,
the
Underwriter
has
complied
with
all of its
obligations
hereunder
and
all
information
contained
in any
Underwriter
Free Writing
Prospectus and in any Underwriter
Prepared Issuer FWP as used in
connection
with any
Contract of Sale are accurate in all
material
respects
(taking into
account the
assumptions
explicitly set forth in such
Underwriter
Prepared
Issuer FWP or
Underwriter
Free Writing
Prospectus),
except to the extent of (x) any errors therein that
are caused by errors or
omissions in the Pool
Information
or (y)
information
accurately
extracted from any Issuer Free Writing
Prospectus and included in any Underwriter
Prepared
Issuer FWP or Underwriter Free Writing Prospectus.
(b)
Prior to the Closing
Date,
the
Underwriter
shall notify the Company of
the
earlier of (x) the date on which the
Prospectus
Supplement
is first used and (y) the
time of the first Contract of Sale to which such Prospectus
Supplement relates.
2.
Purchase
and Sale.
Subject to the terms and
conditions
and in reliance
upon the
representations
and
warranties
herein set forth,
the Company agrees to sell to
each Underwriter,
and each Underwriter agrees,
severally but not jointly, to purchase from
the Company,
at the purchase price set forth in Schedule II hereto, the
principal amount or
percentage interest of the Securities set forth opposite such
Underwriter's name therein.
-5-
3.
Delivery and
Payment.
Delivery of and payment for the
Securities
shall
be made at the office,
on the date and at the time
specified
in Schedule I hereto,
which
date and time may be postponed by agreement
between the
Representative
and the Company or
as
provided
in
Section 9 hereof
(such
date and time of
delivery
and
payment
for the
Securities
being herein called the "Closing
Date").
Delivery of the
Securities
shall be
made to the Representative for the respective accounts of the
several
Underwriters
against
payment by the
several
Underwriters
through
the
Representative
of the
purchase
price
thereof in the manner set forth in
Schedule II hereto.
If
Schedule I
indicates
that the
Securities are to be issued in book-entry
form,
delivery of the
Securities
shall be made
through
the
facilities
of the
depository
or
depositories
set
forth
on
Schedule
I.
Alternatively,
certificates
for the
Securities
shall be
registered in such names and in
such
denominations as the Representative may request not less than three
full business days
in advance of the Closing Date.
The Company agrees to have the
Securities
available for
inspection,
checking
and packaging by the
Representative
in New York,
New York,
not later than 1:00 p.m., New
York City time, on the business day prior to the Closing Date.
4.
Offering by the Underwriters.
(a)
It is
understood
by the
parties
hereto
that,
after the
Registration
Statement becomes
effective,
the Underwriters
propose to offer the Securities for sale to
the public (which may include selected dealers) as set forth in the
Prospectus.
(b)
It is
understood
that
prior to the date of the first
Contract
of Sale
made based on the Approved
Offering
Materials,
the Underwriters
have not pledged,
sold,
disposed of or otherwise transferred any Certificate,
Mortgage Loans or any interest in any
Certificate.
(c)
It is understood
that the
Underwriters
will solicit
offers to purchase
the Certificates as follows:
(i)
Prior
to the time
the
Underwriters
have
received
the
Approved
Offering
Materials
the
Underwriters
may,
in
compliance
with
the
provisions
of this
Agreement,
solicit offers to purchase Certificates;
provided,
that the Underwriters shall
not accept any such offer to purchase a Certificate
or any interest in any
Certificate
or
Mortgage
Loan or
otherwise
enter
into
any
Contract
of Sale for any
Certificate,
any
interest in any
Certificate or any Mortgage Loan prior to the
Underwriters'
conveyance of
Approved Offering Materials to the investor.
(ii)
any Written
Communication
relating to the Certificates
made by an
Underwriter
in
compliance
with
the
terms
of this
Agreement
prior
to the
time
such
Underwriter
has entered into a Contract of Sale for
Certificates
with the recipient shall
prominently
set forth the
following
statements
(or a
substantially
similar
statements
approved by the Company):
The information in this free writing prospectus,
if conveyed prior to the
time
of
the
your
contractual
commitment
to
purchase
any
of
the
Certificates,
supersedes any
information
contained in any prior similar
materials
relating
to the
Certificates.
The
information
in this free
writing
prospectus
is
preliminary,
and is
subject
to
completion
or
change.
This free writing
prospectus is being delivered to you solely to
provide
you with
information
about
the
offering
of the
Certificates
referred
to in this free
writing
prospectus
and to solicit an offer to
purchase
the
Certificates,
when,
as and if
issued.
Any such offer to
purchase
made by you will not be
accepted
and
will
not
constitute
a
contractual
commitment by you to purchase any of the Certificates,
until
we have accepted your offer to purchase Certificates.
-6-
The
Certificates
referred to in these
materials are being sold when, as
and if issued.
The issuer is not obligated to issue such
Certificates or
any similar
security
and the
underwriter's
obligation
to deliver such
Certificates
is subject to the terms and
conditions of the
underwriting
agreement with the issuer and the availability of such Certificates
when,
as and if
issued by the
issuer.
You are
advised
that the terms of the
Certificates,
and the
characteristics
of the mortgage loan pool backing
them,
may change
(due,
among
other
things,
to the
possibility
that
mortgage
loans that comprise the pool may become
delinquent or defaulted
or may be removed or
replaced
and that
similar
or
different
mortgage
loans
may
be
added
to the
pool,
and
that
one or
more
classes
of
Certificates may be split,
combined or eliminated),
at any time prior to
issuance or
availability
of a final
prospectus.
You are
advised
that
Certificates may not be issued that have the characteristics
described in
these materials.
The
underwriter's
obligation to sell such Certificates
to you is conditioned on the mortgage
loans and
Certificates
having the
characteristics
described
in
these
materials.
If for any
reason
the
issuer does not deliver such
Certificates,
the
underwriter
will notify
you, and neither the issuer nor any
underwriter
will have any obligation
to you to deliver
all or any portion of the
Certificates
which you have
committed to purchase,
and none of the issuer nor any underwriter will be
liable
for any costs or
damages
whatsoever
arising
from or related to
such non-delivery.
(iii) Any
Preliminary
Pool
Information
shall
not
be
provided
to
prospective
investors
unless such
Preliminary
Pool
Information
is
accompanied
by the
Approved
Offering
Materials
and
the
following
statements
(or
substantially
similar
statements approved by the Company) appear prominently thereon:
The information set forth below, entitled "preliminary
information",
was
derived
from
a
preliminary
pool
of
mortgage
loans
which
is
not
representative
of
the
mortgage
loans
that
will
comprise
the
final
mortgage loan pool.
The
preliminary
pool of mortgage
loans
represents
only a subset of the final
mortgage loan pool and mortgage loans that are
included in the
preliminary
mortgage
loan pool may be removed
from the
final mortgage loan pool. It is expected that the
characteristics
of the
final mortgage loan pool will differ, and may differ materially,
from the
characteristics
of
the
preliminary
pool
of
mortgage
loans
and
the
preliminary
information
may
differ
materially
from
information
of a
similar type if derived from the final
mortgage
loan pool.
Although the
characteristics
of the final mortgage loan pool are expected to be within
the parameters for the mortgage loan
characteristics
as set forth in the
tables
entitled
["collateral
stipulations
-
mortgage
pool
characteristics"]
[accompanying
Approved Offering
Materials],
they are
not
expected to conform in all material
respects to the
characteristics
of
the
preliminary
mortgage
loan
pool.
You
should
refer
to
the
parameters for the mortgage loan
characteristics
in the tables
entitled
["collateral
stipulations
-
mortgage
pool
characteristics"]
in
the
accompanying [Approved Offering Materials]
[for use in February deals].
-7-
(iv)
It is
understood
that
the
Underwriters
will
not
enter
into a
Contract of Sale with any investor until the Approved Offering
Materials have been conveyed
to the investor with respect to the
Certificates
which are the subject of such Contract of
Sale.
(d)
It
is
understood
that
you
may
prepare
and
provide
to
prospective
investors certain Free Writing Prospectuses, subject to the
following conditions:
(i)
Unless
preceded
or
accompanied
by a
prospectus
satisfying
the
requirements
of Section 10(a) of the Act, the
Underwriter
shall not convey or deliver any
Written
Communication
to any
person
in
connection
with
the
initial
offering
of the
Certificates,
unless such Written
Communication
(i) is made in reliance on Rule 134 under
the Act, (ii)
constitutes a prospectus
satisfying the
requirements of Rule 430B under the
Act or (iii)
constitutes
a Free
Writing
Prospectus
(as
defined in Section
1(c) above)
consisting
solely of (x)
information
of a type
included
within
the
definition
of ABS
Informational
and
Computational
Materials (as defined
below),
(y) Permitted
Additional
Materials or (z) information
accurately
extracted from any Issuer Free Writing
Prospectus
and included in any Underwriter Prepared Issuer FWP or Underwriter
Free Writing Prospectus.
(ii)
The
Underwriter
shall
comply
with
all
applicable
laws
and
regulations
in
connection
with the use of Free Writing
Prospectuses,
including
but not
limited
to Rules
164 and 433 of the
1933
Act
Regulations
and all
Commission
guidance
relating to Free Writing
Prospectuses,
including but not limited to Commission Release No.
33-8591.
(iii) It is
understood
and agreed that all
information
provided by the
Underwriter
to or through
Bloomberg or Intex or similar
entities
for use by
prospective
investors,
or imbedded in any CDI file
provided to
prospective
investors,
to the extent
constituting
a Free
Writing
Prospectus,
shall be
deemed
an
Underwriter
Free
Writing
Prospectus.
(iv)
All Free Writing Prospectuses
provided to prospective
investors,
whether
or not filed
with the
Commission,
shall bear a legend
including
the
following
statement (or a substantially similar statement approved by the
Company):
-8-
"THE DEPOSITOR HAS FILED A REGISTRATION
STATEMENT
(INCLUDING
A
PROSPECTUS)
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
(THE
SEC)
FOR
THE
OFFERING
TO
WHICH
THIS
COMMUNICATION
RELATES.
BEFORE YOU INVEST,
YOU SHOULD
READ THE
PROSPECTUS
IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS THE
DEPOSITOR
HAS
FILED
WITH
THE
SEC
FOR
MORE
COMPLETE
INFORMATION
ABOUT THE
DEPOSITOR
AND THE
OFFERING.
YOU MAY
GET THESE
DOCUMENTS AT NO CHARGE BY VISITING 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
AT NO
CHARGE
IF YOU
REQUEST IT BY CALLING TOLL-FREE 1-800-422-2006."
Each of the
Underwriter
and the Company
shall have the right to request
additional
specific
legends or notations to appear on any Free Writing
Prospectus
and shall have the
right to require
changes
regarding the use of
terminology
and the right to determine the
types of
information
appearing
therein with the approval of the other (which shall not be
unreasonably withheld).
(v)
The
Underwriter
shall
provide
the
Company
with a
letter
from
[_________],
certified public accountants,
prior to the Closing Date, satisfactory in form
and
substance to the Company and its counsel and the
Underwriter,
to the effect that such
accountants have performed
certain specified
procedures,
all of which have been agreed to
by the
Company
and the
Underwriter,
as a result of which they
determined
that
certain
information
of an
accounting,
financial
or
statistical
nature
that is included in any
Underwriter
Prepared
Issuer
FWP,
other
than
any
Pool
Information
therein
and
any
information
accurately
extracted
from any Issuer Free Writing
Prospectus and included in
such
Underwriter
Prepared
Issuer FWP, is accurate
except as to such matters that are not
deemed by the Company and the Underwriter to be material.
The foregoing
letter shall be at
the expense of the Underwriter.
(vi)
None of the information in any Free Writing
Prospectus may conflict
with the
information
then
contained in the
Registration
Statement or any
prospectus or
prospectus
supplement
that
is
a
part
thereof.
The
Certificates
described
in
any
Underwriter
Free Writing
Prospectus or any
Underwriter
Prepared
Issuer FWP will be of a
type
set
forth
in one of the
categories
listed
beneath
the
heading
"Description
of
Certificates" in the term sheet supplement
included in the Approved Offering
Materials and
the description of the
characteristics
of the
Certificates
contained in such Underwriter
Free Writing
Prospectus or any
Underwriter
Prepared
Issuer FWP shall not be inconsistent
with the description of the Certificates beneath such heading in
the term sheet supplement.
(vii) The Company
shall not be
obligated to file any Issuer Free Writing
Prospectuses
that have been
determined
to contain any material
error or omission
unless
such Issuer Free Writing
Prospectus has been provided to a prospective
investor,
in which
case, the Underwriter
shall cooperate with the Company to prepare a corrective
Issuer Free
Writing
Prospectus that the Underwriter will provide to any such
prospective
investor and
the Company
shall file to the extent
required
herein.
In the event that the
Underwriter
becomes
aware that,
as of the date on which an investor
entered
into a Contract of Sale,
any Free Writing
Prospectus
prepared by or on behalf of the
Underwriter
and delivered to
such
investor
contained
any untrue
statement
of a
material
fact or omitted to state a
material fact necessary in order to make the statements
contained therein,
in light of the
circumstances
under which they were made, not misleading (such Free Writing
Prospectus,
a
"Defective Free Writing
Prospectus"),
the Underwriter
shall notify the Company thereof as
soon as practical but in any event within one business day after
discovery.
-9-
(viii)
If
the
Underwriter
does
not
provide
any
Free
Writing
Prospectuses
to the Company
pursuant to subsection
(v) above,
the
Underwriter
shall be
deemed to have represented,
as of the Closing Date, that it did not provide any prospective
investors
with any
information
in
written
or
electronic
form in
connection
with the
offering of the Certificates that would constitute an Underwriter
Prepared Issuer FWP.
(ix)
In the event of any delay in the delivery by the
Underwriter to the
Company of any
Underwriter
Prepared Issuer FWP required to be delivered in accordance with
subsection
(v) above,
or in the
delivery of the
accountant's
comfort
letter in respect
thereof
pursuant to
subsection
(vi) above,
the Company shall have the right to delay the
release of the Prospectus to investors or to the Underwriter,
to delay the Closing Date and
to take other
appropriate
actions in each case as
necessary in order to allow the Company
to comply with its
agreement
set forth in Section 5(a) to file such
Underwriter
Prepared
Issuer FWP by the time specified therein.
(x)
The Underwriter
represents that it has in place, and covenants that
it shall
maintain,
internal
controls and
procedures
which it reasonably
believes to be
sufficient to ensure full compliance with all applicable legal
requirements of the 1933 Act
Regulations
with
respect
to the
generation
and
use of
Free
Writing
Prospectuses
in
connection with the offering of the Certificates.
In addition,
each Underwriter shall, for
a period of at least three years after the date hereof,
maintain written and/or
electronic
records of the following:
(1)
any Free Writing
Prospectus
used by the Underwriter to
solicit
offers to
purchase
Certificates
to the
extent
not
filed
with the
Commission;
(2)
regarding each Free Writing Prospectus
delivered by the
Underwriter
to an
investor,
the date of such
delivery
and
identity of such
investor; and
(3)
regarding
each
Contract of Sale
entered
into by such
Underwriter,
the date,
identity of the investor and the terms of such Contract
of Sale, as set forth in the related confirmation of trade.
(xi)
The
Underwriter
covenants
with the
Company
that after the final
Prospectus
is
available
the
Underwriter
shall not
distribute
any written
information
concerning the
Certificates to a prospective
investor unless such
information is preceded
or
accompanied
by the
final
Prospectus.
It is
understood
and
agreed
that the use of
written
information
in
accordance
with
the
preceding
sentence
is not a Free
Writing
Prospectus and is not otherwise restricted or governed in any way
by this Agreement.
-10-
(xii) The
Underwriter
shall
not
use any
Free
Writing
Prospectus
in
connection
with the
solicitation of offers to purchase
Certificates
from any prospective
investor in a class of
Certificates
with
denominations
of less than $25,000 or otherwise
designated as a "retail" class of Certificates,
and the Underwriter shall not authorize any
such use of any Free Writing
Prospectus by any dealer that purchases any such
Certificates
from the Underwriter.
(e)
The
Underwriter
agrees that (i) if the
Prospectus is not delivered with
the
confirmation
in reliance on Rule 172, it will include in every
confirmation
sent out
the notice
required by Rule 173
informing
the investor that the sale was made pursuant to
the
Registration
Statement and that the investor may request a copy of the
Prospectus from
the
Underwriter;
(ii) if a paper
copy of the
Prospectus
is
requested
by a person
who
receives
a
confirmation,
Underwriter
shall
deliver
a
printed
or
paper
copy of such
Prospectus;
and
(iii)
if an
electronic
copy
of
the
Prospectus
is
delivered
by the
Underwriter
for any purpose,
such copy shall be the same
electronic
file
containing the
Prospectus in the identical
form
transmitted
electronically
to the
Underwriter by or on
behalf of the Company
specifically
for use by the
Underwriter
pursuant
to this
Section
4(e); for example,
if the Prospectus is delivered to the Underwriter by or on behalf
of the
Company in a single
electronic file in pdf format,
then the
Underwriter
will deliver the
electronic
copy of the
Prospectus in the same single
electronic
file in pdf format.
The
Underwriter
further
agrees that (i) if it delivers to an investor
the
Prospectus
in pdf
format, upon the Underwriter's
receipt of a request from the investor within the period for
which
delivery of the
Prospectus is required,
the
Underwriter
will promptly
deliver or
cause to be delivered to the investor,
without
charge,
a paper copy of the Prospectus and
(ii) it will
provide to the
Company
any
Underwriter
Prepared
Issuer
FWP,
or portions
thereof,
which the Company is required to file wi
