EXHIBIT 1.1
WACHOVIA BANK
COMMERCIAL MORTGAGE TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-C29
UNDERWRITING AGREEMENT
Charlotte, North Carolina
December 13, 2006
WACHOVIA CAPITAL MARKETS, LLC
301 South College Street
One Wachovia Center
Charlotte, North Carolina 28288
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
GREENWICH CAPITAL MARKETS, INC.
600 Steamboat Road
Greenwich, Connecticut 06830
Dear Sirs:
Wachovia Commercial Mortgage Securities, Inc., a North Carolina
corporation (the
"Company"), intends to issue its Wachovia Bank Commercial Mortgage
Trust,
Commercial Mortgage Pass-Through Certificates, Series 2006-C29
(the
"Certificates"), in twenty-seven (27) 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"), Goldman, Sachs &
Co. ("Goldman")
and Greenwich Capital Markets, Inc. ("Greenwich Capital" and each
of Wachovia
Securities, Goldman and Greenwich Capital, 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-two
(142) mortgage loans (the "Mortgage Loans") having an approximate
aggregate
principal balance of $3,371,274,173 as 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 21, 2006 (the "Closing Date"), pursuant to a pooling and
servicing
agreement (the "Pooling and Servicing Agreement"), dated as of
December 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 fifteen (115) of the Mortgage Loans (the
"Wachovia
Mortgage Loans"), having an aggregate principal balance of
$3,036,387,193 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, 2006 (the "Wachovia Mortgage Loan Purchase
Agreement"),
between Wachovia and the Company. Twenty-seven (27) of the Mortgage
Loans (the
"Artesia Mortgage Loans"), having an aggregate principal balance of
$334,886,980
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 December 1, 2006 (the "Artesia Mortgage Loan Purchase
Agreement"
and, together with the Wachovia Mortgage Loan Purchase Agreement,
the "Mortgage
Loan Purchase Agreements"), between Artesia and the Company. Each
of Wachovia
and Artesia is referred to herein, individually, as a "Mortgage
Loan Seller"
and, together, 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. 333-131262) 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 13, 2006 (the "Prospectus Supplement") to the
prospectus
dated October 19, 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. 333-131262),
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 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 any of
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 each is 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 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, 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, the Registration Statement and the
Time of
Sale Information. 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 in Section 8
herein)
in such
Time of Sale Information, (iii) any Master Servicer Covered
Information in such Time of Sale Information, (iv) any Special
Servicer
Covered
Information in such Time of Sale Information or (v) any Trustee
Covered
Information 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, authorize, 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(b)(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 in any Issuer Free
Writing
Prospectus, (iii) any Master Servicer Covered Information in any
Issuer
Free
Writing Prospectus, (iv) any Special Servicer Covered Information
in
any Issuer
Free Writing Prospectus or (v) 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
(x)
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, (y) general equity principles (regardless of whether
such
enforcement is considered in a proceeding in equity or at law), and
(z)
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:
(i) In relation to each Member State of the European Economic
Area
which has
implemented the Prospectus Directive (each, a "Relevant Member
State"),
each Underwriter has not made and will not make an offer of
Certificates to the public in that Relevant Member State prior to
the
publication of a prospectus in relation to the Publicly Offered
Certificates which has been approved by the competent authority in
that
Relevant
Member State or, where appropriate, approved in another
Relevant
Member
State and notified to the competent authority in that Relevant
Member
State, all in accordance with the Prospectus Directive, except
that
it may,
with effect from and including the relevant implementation
date,
make an
offer of Publicly Offered Certificates to the public in that
Relevant
Member State at any time:
(A) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
(B) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial
year;
(2) a total balance sheet of more than (euro)43,000,000 and (3)
an
annual net turnover of more than (euro)50,000,000, as shown in
its
last annual or consolidated accounts; or
(C) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article 3
of
the Prospectus Directive.
For the purposes of this provision, the expression an "offer of
Publicly Offered Certificates to the public" in relation to any
Publicly Offered Certificates in any Relevant Member State means
the
communication in any form and by any means of sufficient
information
on the terms of the offer and the Publicly Offered Certificates
to
be offered so as to enable an investor to decide to purchase or
subscribe the Publicly Offered Certificates, as the same may be
varied in that Member State by any measure implementing the
Prospectus Directive in that Member State and the expression
"Prospectus Directive" means the European Commission Directive
2003/71/EC and includes any relevant implementing measure in
each
Relevant Member State.
(ii) Each Underwriter has only communicated or caused to be
communicated and will only communicate or cause to be communicated
an
invitation
or inducement to engage in investment activity (within the
meaning of
Section 21 of the United Kingdom Financial Services and Markets
Act 2000
(the "FSMA")) received by it in connection with the issue or
sale
of the
Publicly Offered Certificates in circumstances in which Section
21(1) of
the FSMA does not apply to the issuer.
(iii) Each Underwriter has complied and will comply with all
applicable
provisions of the FSMA with respect to anything done by it in
relation
to the Publicly Offered Certificates in, from or otherwise
involving
the United Kingdom.
(iv) 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 Charlotte, North Carolina, 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) Each 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
such
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) Each Underwriter represents and warrants to the Company
that
the Free
Writing Prospectuses to be furnished to the Company by such
Underwriter pursuant to Section 4(b)(ii) will constitute all Free
Writing
Prospectuses of the type described therein that were furnished
to
prospective investors by such Underwriter in connection with its
offer and
sale of
the Underwritten Certificates.
(iv) Each 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(b)(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 such 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 such Underwriter, which information was
not
corrected
by Corrective Information subsequently supplied by the Company
or any
Mortgage Loan Seller to such 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(b)(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(b)(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(b)(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) Each 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 such 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(b)(vii),
each
Underwriter shall file with the Commission any Free Writing
Prospectus for which
such 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 such
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(b)(v) and
4(b)(vii), neither the Company nor any 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 Underwriters 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 Underwriters 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 any Underwriter becomes aware that, with
respect to any purchaser of an Underwritten Certificate, any
Free
Writing Prospectus prepared by or on behalf of such 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"), such Underwriter shall notify the Company and
each
other Underwriter thereof within one business day after
discovery.
(B) Each 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 such Underwriter.
The
Company shall also notify the other Underwriters of such
incorrect
Issuer Information, to the extent it is provided notice
hereunder.
(xiii) Each Underwriter covenants with the Company that after
the
final
Prospectus is available, such Underwriter shall not distribute
any
written
information concerning the Underwritten Certificates to a
prospect
