EXHIBIT 1.2
UNDERWRITING AGREEMENT
(Asset-Backed Notes)
New York, New York
_____ __, 200_
[Lead Underwriter's name and address]
Ladies and Gentlemen:
SECTION 1.
Introduction.
Wachovia
Mortgage
Loan
Trust,
LLC,
a
Delaware
limited
liability
company
(the
"Company"),
proposes
to
sell
to
the
Underwriters
named
on
Schedule
I
hereto
(the
"Underwriters")
through
__________,
as
representative
of the Underwriters
(the
"Representative"),
$_______
principal
amount of its Class __ Asset-Backed
Notes
identified in
Schedule I hereto (the
"Offered
Notes")
having the
aggregate
initial Note
Balance set forth in
Schedule I (subject
to an upward or downward
variance,
not to exceed __%, of the precise
initial Note
Balance
within such range to
be
determined
by the
Company
in its sole
discretion).
As of the close of
business
on the
date
specified
in
Schedule
I as the
cut-off
date
(the
"Cut-Off Date"), the Mortgage Loans will have the aggregate
principal balance
set forth in Schedule I. This
Underwriting
Agreement
shall
hereinafter
be
referred to as the
"Agreement."
The Offered Notes are to be issued
pursuant
to an Indenture, dated as of _____ __, 200_ (the "Indenture"),
among Wachovia
Mortgage
Loan
Trust,
LLC
[_____]
Trust
(the
"Issuer"
or the
"Trust"),
__________,
as indenture trustee (the "Indenture Trustee") and __________, as
paying
agent (the
"Paying
Agent")
and
secured by the assets of the Issuer
consisting
primarily
of
a
pool
of
fixed-rate
and
adjustable-rate
one-to-four-family
residential
mortgage
loans,
as
described in Schedule I
(the
"Mortgage
Loans") to be acquired by the Company
pursuant to a mortgage
loan purchase agreement (the "Mortgage Loan Purchase Agreement"),
dated _____
__, 200_,
between the Company and
__________
(the
"Seller").
The Mortgage
Loans will be
transferred
by the
Depositor
to the Issuer
pursuant
to the
Trust Agreement,
dated as of _____ __, 200_ (the "Trust
Agreement")
between
the
Depositor
and
Wilmington
Trust
Company as Owner
Trustee (the "Owner
Trustee").
[The
Offered
Notes
will
be
subject
to
a
yield
maintenance
agreement,
dated as of _____ __,
200_,
between
the Owner
Trustee
and the
Yield Maintenance
Provider (the "Yield Maintenance
Agreement").] The Offered
Notes
will be
issued
in the
denominations
specified
in
Schedule
I. The
Indenture,
this
Agreement,
the
Trust
Agreement[,
the
Yield
Maintenance
Agreement] and the Mortgage Loan Purchase Agreement are
collectively
referred
to herein as the "Basic Documents."
Capitalized
terms used herein
that are not
otherwise
defined
herein
have the meanings assigned thereto in the Indenture.
SECTION 2.
Representations
and
Warranties
of the Company.
(A) The Company
represents and warrants to the Underwriters as follows:
(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 become
effective,
for the registration
under the Act of
the Offered
Notes.
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
Offered
Notes and the plan of
distribution
thereof and has
previously advised the Underwriters 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 supplement to the Base
Prospectus,
in the
form in which
it
shall
be
filed
with the
Commission
pursuant to Rule 424, is hereinafter
called the "Prospectus
Supplement" and,
collectively
with
the
Base
Prospectus,
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.
Any
preliminary
form of the
Prospectus
Supplement
to be filed
pursuant
to
Rule
424(b)
is
referred
to
as a
"Preliminary
Prospectus
Supplement"
and,
together
with
the
Base
Prospectus,
and as
amended
or
supplemented
if
the
Company
shall
have
furnished
any
amendments
or
supplements thereto, a "Preliminary Prospectus."
(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 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,
will comply in all
material
respects
with the Act and
the respective rules 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)
the Approved
Offering
Materials (as
hereinafter
defined) as of the date of
the Approved
Offering
Materials did not and as of the Closing Date 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,
(v) 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
(vi)
the
Base
Prospectus
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 the
Underwriters
specifically
for use in
connection
with the
preparation of the Registration
Statement or the Prospectus,
(B) the Current
Report
(as
defined in
Section
5(b)
below),
or 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 the Preliminary
Prospectus.
(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)
"Free
Writing
Prospectus"
shall
have
the
meaning
given such term in Rules 405 and 433 of the 1933 Act Regulations.
(v)
"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.
(vi)
"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.
(vii) "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.
3
(viii)
"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.
(ix)
"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.
(x)
"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.
(xi)
"Underwriter
Prepared Issuer FWP" shall mean any Free
Writing
Prospectus
prepared by or on behalf of the Underwriter that contains
any Issuer
Information,
including
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.
(xii) "Written
Communication"
shall have the meaning given
such term in Rule 405 of the 1933 Act Regulations.
(c)
The Company
has been duly
formed and is validly
existing as a limited
liability
company
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 to which it is a
party.
(d)
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.
(e)
This Agreement has been duly
authorized,
executed and delivered by the
Company,
and each of the other
Basic
Documents
to which the
Company
is a
party,
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.
4
(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.
SECTION 3.
Purchase,
Sale and
Delivery
of Offered
Notes.
On the basis of
the representations,
warranties and agreements herein contained,
but subject
to the terms and conditions
herein set forth, the Company agrees to issue and
sell to the
Underwriters,
and the
Underwriters
agree to purchase
from the
Company,
the principal
amount of Offered Notes set forth
opposite each such
Underwriter's
name on Schedule I hereto.
The purchase
price for the Offered
Notes is set forth as a percentage of the aggregate
principal
balance of the
Offered Notes in Schedule I hereto.
The
Company
will
deliver
the
Offered
Notes to the
Representative,
against
payment of the
purchase
price
therefor
in same day funds wired to
such bank as may be
designated
by the
Company,
or by such other
manner of
payment as may be agreed
upon by the
Company
and the
Underwriters,
at the
offices of [Orrick,
Herrington & Sutcliffe
LLP], New York, NY at 10:00 A.M.,
Eastern
time, on _____ __, 200_ or at such other place or time not later
than
seven full business
days
thereafter
as the
Representative
and the Company
determine, such time being referred to herein as the "Closing
Date."
The Offered Notes so to be delivered will be in such
denominations
and
registered
in such names as the
Representative
requests
two full
business
days prior to the
Closing
Date and will be made
available
at the office of
________,
[city], [state] or, upon the Representative's
request, through the
facilities of The Depository Trust Company.
SECTION 4.
Offering by the Underwriters.
(a)
It is
understood
that the
Underwriters
propose to offer the
Offered
Notes
subject to this
Agreement
for sale to the public
(which may
include
selected
dealers)
on the
terms
as set
forth
in the
Prospectus
and
the
Underwriters
agree
that all such
offers
and sales by them shall be made in
compliance with all applicable laws and regulations.
5
(b)
If any
Underwriter
shall fail to take up and pay for the amount of the
Offered
Notes
agreed
by
such
Underwriter
to
be
purchased
under
this
Underwriting
Agreement upon tender of such Notes in accordance with the terms
hereof,
and the amount of the Offered Notes not purchased
does not aggregate
more than 10% of the total
amount of the Offered
Notes set forth in Schedule
I hereto,
the
remaining
Underwriters
shall be obligated to take up and pay
for the Term Notes that the withdrawing or defaulting
Underwriters agreed but
failed to purchase.
This
Underwriting
Agreement
shall
terminate
if
(i)
any
Underwriter
shall fail to take up and pay for the amount of the Offered Notes
agreed by such Underwriter to be purchased under this
Underwriting
Agreement
(such Underwriter being a "Defaulting
Underwriter") upon tender of such Notes
in accordance with the terms hereof,
(ii) the amount of the Offered Notes not
purchased
aggregates
more than 10% of the total amount of the Offered
Notes
set forth in Schedule I hereto,
and (iii)
arrangements
satisfactory
to the
remaining
Underwriters
and the
Company
for the
purchase
of such Notes by
other
persons
are not made within 36 hours
thereafter.
In the event of any
such
termination,
the
Company
shall
not be
under
any
liability
to any
Underwriter
(except to the extent provided in Section 8 hereof) nor shall any
Underwriter
(other than an Underwriter who shall have failed,
otherwise than
for some reason permitted under this Underwriting
Agreement,
to purchase the
amount
of the
Offered
Notes
which
such
Underwriter
agreed
to
purchase
hereunder)
be under
any
liability
to the
Company
(except
to the
extent
provided in Section 8 hereof).
Nothing
herein shall be deemed to relieve any
Defaulting
Underwriter
from any
liability it may have to the Company or any
other
Underwriter
by reason of its
failure
to take up and pay the
Offered
Notes as agreed to by such Defaulting Underwriter.
(c)
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.
(d)
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) 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.
(e)
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 the Preliminary
Prospectus any Issuer Free Writing
Prospectus
and included in any Underwriter
Prepared
Issuer FWP or any Underwriter
Free
Writing Prospectus.
7
(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,
or in any
email
or
other
electronic
message provided to prospective
investors,
to the extent constituting a Free
Writing
Prospectus,
shall be deemed for purposes of this
Agreement to be an
Underwriter
Free Writing
Prospectus and shall not be subject to the required
consent of the
Company set forth in the third
sentence
in Section
4(e)(v).
In connection therewith,
the Underwriter agrees that it shall not provide any
information
constituting
Issuer
Information
through
the
foregoing
media
unless (i) such information or substantially
similar information is contained
either in an Issuer Free
Writing
Prospectus
or in an
Underwriter
Prepared
Issuer FWP in
compliance
with
Section
4(e)(v)
or (ii) to the extent
such
information
consists of the terms of the
Certificates,
the final version of
the
terms
of
the
Certificates
or
substantially
similar
information
is
contained
either in an Issuer Free Writing
Prospectus
or in an
Underwriter
Prepared Issuer FWP in compliance with Section 4(e)(v).
.
(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):
"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-XXX-XXX-XXXX."
8
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 deliver to the Company and its
counsel (in such format as reasonably
required by the Company),
prior to the
proposed date of first use thereof,
(unless such timing requirement is waived
by the Company),
any Underwriter
Prepared Issuer FWP (as defined above).
To
facilitate
filing
to the
extent
required
by
Section
5(g)
or
5(h),
as
applicable,
all
Underwriter
Derived
Information
shall
be set
forth in a
document
separate from any Underwriter
Prepared Issuer FWP including
Issuer
Information.
Consent to use of any
Underwriter
Prepared
Issuer FWP must be
given by the Company in written or electronic
format
before the
Underwriter
provides the
Underwriter
Prepared
Issuer FWP to
investors
pursuant to the
terms
of this
Agreement.
Notwithstanding
the
foregoing,
the
Underwriter
shall not be
required
to
deliver or obtain
consent
to use an
Underwriter
Prepared
Issuer
FWP to the
extent
that it
does
not
contain
substantive
changes from or additions to any
Underwriter
Prepared
Issuer FWP previously
approved
by
the
Company.
In
the
event
that
the
Underwriter
uses
any
Underwriter
Prepared
Issuer
FWP
without
complying
with
the
foregoing
requirements,
that
Underwriter
Prepared Issuer FWP shall be deemed to be an
Underwriter Free Writing Prospectus for purposes of Section 8(a)
and 8(b).
(vi)
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.
(vii) 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.
(viii)
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
(ix)
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.
(x)
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.
(xi)
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.
(xii) 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.
(xiii)
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.
10
(f)
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
with the
Commission
in
electronic
format and will use
reasonable
efforts to provide to the Company
such
Underwriter
Prepared
Issuer
FWP,
or
portions
thereof,
in
either
Microsoft
Word(R) or Microsoft
Excel(R)
format and not in a pdf,
except to the
extent that the Company, in its sole discretion, waives such
requirements.
SECTION 5.
Covenants
of
the
Company.
The
Company
hereby
covenants
and
agrees with the Underwriters that:
(a)
Prior to the
termination
of the
offering
of the Offered
Notes,
the
Company
will
not
file
any
amendment
of
the
Registration
Statement
or
supplement
(including
the
Prospectus)
to the Base
Prospectus
unless
the
Company
has
furnished
the
Underwriters
a copy for their
review
prior to
filing and will not file any such
proposed
amendment or
supplement to which
any Underwriter
reasonably objects.
Subject to the foregoing
sentence,
the
Company will cause the
Preliminary
Prospectus and the Prospectus to be filed
with the
Commission
pursuant
to
Rule 424.
The
Company
will
advise
the
Underwriters
promptly (i) when the Prospectus
shall have been filed with the
Commission
pursuant to Rule 424, (ii) when any amendment to the
Registration
Statement relating to the Offered Notes shall have become
effective,
(iii) of
any request by the Commission for any amendment of the Registration
Statement
or
amendment
of or
supplement
to
the
Prospectus
or for
any
additional
information,
(iv)
of the
issuance
by the
Commission
of
any
stop
order
suspending the effectiveness of the Registration
Statement or the institution
or
threatening
of any
proceeding for that purpose and (v) of the receipt by
the
Company
of
any
notification
with
respect
to the
suspension
of the
qualification
of the
Offered
Notes
for
sale
in any
jurisdiction
or the
initiation or
threatening
of any
proceeding
for such purpose.
The Company
will use its best
efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
11
(b)
The
Company
will
use its best
efforts
to
cause
any
Computational
Materials,
Collateral
Term
Sheets and ABS Term
Sheets
(each as defined in
Section 11 below) with
respect to the Offered
Notes which are
delivered
by
the
Underwriters
to the Company
pursuant to Section 11 to be filed with the
Commission on a Current Report on Form 8-K (the "Current
Report") pursuant to
Rule
13a-11
under
the
Exchange
Act
not
later
than
the
business
day
immediately
following
the
day
on
which
such
Computational
Materials,
Collateral
Term
Sheets or ABS Term Sheets are
delivered
to counsel for the
Company by the
Underwriters
as
provided
in Section
11, and will
promptly
advise the
Underwriters
when such
Current
Report
has been so filed.
Such
Current
Report shall be
incorporated
by reference in the Prospectus and the
Registration
Statement.
Notwithstanding
the two
preceding
sentences,
the
Company
shall
have
no
obligation
to
file
materials
provided
by
the
Underwriters pursuant to Section 11 which, in the reasonable
determination of
the Company after making reasonable
efforts to consult with the Underwriters,
are not required to be filed pursuant to the No-Action
Letters (as defined in
Section 11 below),
or which
contain
erroneous
information
or contain
any
untrue
statement of a material fact or which,
when read in conjunction
with
the
Prospectus,
omit to state a material fact required to be stated
therein
or
necessary
to
make
the
statements
therein
not
misleading;
it
being
understood,
however,
that the Company
shall have no obligation to review or
pass upon the
accuracy
or
adequacy
of, or to
correct,
any
Computational
Materials,
Collateral
Term
Sheets
or
ABS
Term
Sheets
provided
by
the
Underwriters to the Company pursuant to Section 11 hereof.
(c)
If, at any time
when a
prospectus
relating
to the
Offered
Notes is
required to be delivered
under the 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 light of the circumstances
under which they
were made, not misleading,
or if it shall be necessary to amend or supplement
the
Prospectus
to comply with the Act or the Exchange Act or the
respective
rules
thereunder,
the
Company
promptly
will
prepare
and
file
with the
Commission,
subject to the first sentence of paragraph (a) of this Section 5,
an amendment or
supplement
which will correct such
statement or omission or
an amendment
which will effect such
compliance and will use its best efforts
to cause any required
post-effective
amendment to the Registration Statement
containing such amendment to be made effective as soon as possible;
provided,
however,
that the Company will not be required to file any such
amendment or
supplement
with
respect
to
any
Computational
Materials
incorporated
by
reference in the
Prospectus
other than any amendments or supplements of such
Computational
Materials that are furnished to the Company pursuant to Section
11(d) hereof which the Company determines to file in accordance
therewith.
(d)
The
Company
will
furnish
to the
Underwriters
and
counsel
for the
Underwriters,
without charge,
executed copies of the Registration
Statement
(including
exhibits
thereto) and each
amendment
thereto which shall become
effective
on or prior to the
Closing
Date
and,
so long as
delivery
of a
prospectus by the
Underwriters
or dealer may be required by the Act, as many
copies of the Prospectus and any amendments
thereof and
supplements
thereto
(other than exhibits to the related
Current Report) as the
Underwriters
may
reasonably
request.
The
Company
will
pay the
expenses
of
printing
all
documents
relating to the initial
offering[,
provided
that any
additional
expenses
incurred
in
connection
with
the
requirement
of
delivery
of a
market-making prospectus will be borne by the Underwriters].
12
(e)
The
Company
will
furnish
such
information
as may
