Exhibit 1.1
WaMu ASSET ACCEPTANCE CORP.
WaMu Mortgage Pass-Through Certificates
Series 200[_]-[___]
[FORM OF UNDERWRITING AGREEMENT]
[Underwriter's Name] Dated as of [_____ __, 200[_]
[Underwriter's Address]
Dear Sirs:
1. Introductory. WaMu Asset Acceptance Corp., a Delaware corporation (the
"Company"), proposes to sell, pursuant to the terms of this Underwriting
Agreement (this "Agreement"), and [Underwriter's Name] (the "Underwriter")
proposes to purchase, [$_________________] aggregate principal balance (subject
to an upward or downward variance not to exceed 5.0%) of the Company's Series
[___] WaMu Mortgage Pass-Through Certificates. The Series will consist of the
following classes: [List Classes and Designations]. The Senior Certificates
(other than a 0.01% interest in the Residual Certificates, which shall be
retained by the Company) and the Senior Subordinate Certificates shall
hereinafter be referred to as the "Offered Certificates." The Offered
Certificates and the Junior Subordinate Certificates shall hereinafter be
referred to as the "Certificates." The Company proposes to sell only the Offered
Certificates pursuant to the terms of this Agreement. The Certificates will be
issued in accordance with a Pooling and Servicing Agreement, dated as of
[_________], 200[_] (the "Pooling Agreement"), by and among the Company,
[Servicer's Name] (the "Servicer"), as servicer, [Trustee's Name] (the
"Trustee") and [Delaware Trustee's Name] (the "Delaware Trustee"), as Delaware
trustee, which provides for the sale to the WaMu Mortgage Pass-Through
Certificates Series 200[_]-[___] Trust (the "Trust") of certain mortgage loans
referred to therein (the "Mortgage Loans"), for the pass-through of payments in
respect thereof and for the issuance of the Certificates. The Offered
Certificates, other than the [Class X and Class R Certificates], are offered in
minimum denominations equivalent to not less than [$25,000] initial Certificate
Principal Balance each and multiples of $1 in excess thereof. The [Class X]
Certificates are offered in minimum denominations equivalent to not less than
$100,000 initial Class Notional Amount and multiples of $1 in excess thereof.
[The Class R Certificates will have an initial Class Principal Balance of $100
and will be offered in registered, certificated form in a single denomination of
a 99.99% Percentage Interest. The remaining 0.01% Percentage Interest of the
Class R Certificates will be retained by the Company.]
Capitalized terms not otherwise defined herein shall have the meanings
assigned to them in the Prospectus, as defined below. As used in this Agreement,
an "affiliate" of the Underwriter
shall not include New American Capital, Inc., Washington Mutual, FA or
Washington Mutual Bank or any of their direct or indirect subsidiaries.
2. Description of the Offering.
Principal and interest distributions on, and allocations of losses among,
the Offered Certificates will be made as described in the prospectus supplement,
dated on or about [__________, 200_], prepared in connection with the sale of
the Offered Certificates hereunder.
3. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Underwriter that:
(a) A registration statement on Form S-3 (Reg. No. 333-[_______]),
containing a form of prospectus and a form of prospectus supplement
(together with certain exhibits), has heretofore been delivered to the
Underwriter, has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") under the Act, and has been filed
with and declared effective by the Commission under the Act. Such
registration statement, as of its effective date, and each amendment
thereto to the date of this Agreement, as of its effective date, including
all exhibits thereto, is hereinafter called the "Registration Statement."
The Company proposes to prepare and file with the Commission pursuant to
Rule 424 under the Act ("Rule 424"), a final prospectus (the "Basic
Prospectus") and a prospectus supplement (the "Prospectus Supplement")
relating to the Offered Certificates. The Basic Prospectus and the
Prospectus Supplement relating to the Offered Certificates in the form to
be filed with the Commission pursuant to Rule 424 are hereinafter together
called the "Prospectus." Reference made herein to the Prospectus shall be
deemed to refer to and include any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of
the Prospectus and any reference to any amendment or supplement to the
Prospectus shall be deemed to refer to and include any document filed under
the Securities Exchange Act of 1934 (the "Exchange Act") after the date of
the Prospectus and incorporated by reference in the Prospectus; and any
reference to any amendment to the Registration Statement shall be deemed to
include any report filed with the Commission with respect to the Trust
pursuant to Section 13(a) or Section 15(d) of the Exchange Act after the
date of the Prospectus that is incorporated by reference in the
Registration Statement.
(b) At the time the Registration Statement became effective it
contained all material statements and information required to be included
therein by the Act and the Rules and Regulations and conformed in all
material respects to the requirements of the Act and the Rules and
Regulations, and did not include any untrue statement of any material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. On the date the
Prospectus is filed with the Commission, the Prospectus will conform in all
material respects with the requirements of the Act and the Rules and
Regulations and will not 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;
and as of the
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Closing Date, the Registration Statement, the Prospectus and any amendment
thereof or supplement thereto will contain all material statements and
information required to be included therein by the Act and the Rules and
Regulations and will conform in all material respects to the requirements
of the Act and the Rules and Regulations, and as of the Closing Date, the
Registration Statement will not include any untrue statement of any
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
neither the Prospectus nor any amendment thereof or supplement thereto will
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; provided,
however, that the foregoing representations, warranties and agreements
shall not apply to information (including, without limitation, Evaluation
Models-Materials and ABS Term Sheets, if any (other than Company Provided
Information, as defined herein), each, as defined herein) contained in or
omitted from the Registration Statement or the Prospectus or any such
amendment thereof or supplement thereto in reliance upon, and in conformity
with, written information furnished to the Company by the Underwriter or
any of its affiliates, or information electronically transmitted to the
Company by the Underwriter or any of its affiliates, specifically for use
in the preparation thereof. Notwithstanding the foregoing proviso, the
representations, warranties and agreements made by the Company pursuant to
this Section 3(b) shall apply to the Company Provided Information, as
defined below, included in the Evaluation Models-Materials and ABS Term
Sheets, if any, filed by the Company with the Commission pursuant to
Section 5 hereof but only in so far as such Company Provided Information
included an untrue statement of a material fact or omitted to state a
material fact which in turn caused a material misstatement or omission in
the calculations and computations included by the Underwriter in such
Evaluation Models-Materials and ABS Term Sheets. "Company Provided
Information" is defined as all information regarding the Mortgage Loans
specifically requested by the Underwriter and provided to the Underwriter
by the Company in writing or electronically in connection with the
Underwriter's preparation of Evaluation Models-Materials and ABS Term
Sheets.
(c) The performance of this Agreement and the Pooling Agreement, and
the consummation of the transactions herein and therein contemplated, will
not result in a material breach or violation of any of the terms or
provisions of or constitute a material default under any statute, any
indenture, mortgage, deed of trust, note agreement or other agreement or
instrument to which the Company is a party or by which it is bound, the
Company's Certificate of Incorporation or By-laws, or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its properties.
(d) At the time of issuance and delivery of the Offered Certificates,
the Pooling Agreement (in the form approved by the Underwriter) will have
been duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the other parties
thereto, will constitute a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms except
as the same may be limited by bankruptcy, insolvency,
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reorganization or other laws relating to or affecting the enforcement of
creditors' rights generally or by general equity principles.
(e) With respect to the Mortgage Loans, which will be sold to the
Trust by the Company under the Pooling Agreement, at the time of such sale,
the Trust will have good and marketable title to such Mortgage Loans, free
and clear of all liens and encumbrances.
(f) The direction by the Company to the Trustee to execute, issue and
deliver the Certificates has been duly authorized by the Company, and,
assuming the Trustee has been duly authorized to do so, when executed,
issued and delivered by the Trustee in accordance with the Pooling
Agreement, the Certificates will be validly issued and outstanding and will
be entitled to the benefits provided by the Pooling Agreement, and
immediately prior to the delivery thereof to the Underwriter, the Company
will own the Offered Certificates, and upon such transfer the Underwriter
will receive good and marketable title thereto, free and clear of any lien,
pledge, encumbrance or other security interest.
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Company
of the transactions contemplated by this Agreement, the Pooling Agreement
and the Offered Certificates, except such as may be required under the
securities or blue sky laws of any jurisdiction, and except for such as
will have been obtained prior to the Closing Date (as defined below).
(h) The Offered Certificates and the Pooling Agreement will conform in
all material respects to the descriptions thereof contained in the
Prospectus.
(i) The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Delaware and has the
corporate and legal authority to own its properties and conduct its
business as described in the Prospectus.
(j) This Agreement has been duly authorized, executed and delivered by
the Company.
(k) At the time of their issuance, the Offered Certificates (other
than the Class [_______] Certificates) will constitute "mortgage related
securities" for purposes of the Secondary Mortgage Market Enhancement Act
of 1984 ("SMMEA"), as in effect as of the date of their issuance.
(l) There is no action, suit or proceeding before or by any court or
governmental agency or body now pending, or to the best knowledge of the
Company, threatened, against the Company which separately or in the
aggregate could reasonably be expected to have a material adverse effect on
the ability of the Company to perform its obligations hereunder, or on the
validity or enforceability of this Agreement or the Offered Certificates.
There are no contracts or documents of the Company which are
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required to be filed as exhibits to the Registration Statement pursuant to
the Securities Act or the Rules and Regulations which have not been so
filed or incorporated by reference therein on or prior to the Effective
Date of the Registration Statement. The conditions for use of Form S-3, as
set forth in the General Instructions thereto, have been satisfied.
3.5 Representation, Warranties and Covenants of the Underwriter. The
Underwriter represents and warrants to, and agrees with, the Company that:
(a) No purpose of the Underwriter relating to the purchase of any of
the Residual Certificates by the Underwriter is or will be to enable the
Company to impede the assessment or collection of any tax.
(b) The Underwriter has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of
the Certificates remain outstanding.
(c) The Underwriter has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as
any of the Certificates remain outstanding.
(d) No purpose of the Underwriter relating to any sale of any of the
Residual Certificates by the Underwriter will be to enable it to impede the
assessment or collection of tax. In this regard, the Underwriter hereby
represents to and for the benefit of the Company that the Underwriter
intends to pay taxes associated with its holding of the Residual
Certificates, as they become due, fully understanding that it may incur tax
liabilities in excess of any cash flows generated by the Residual
Certificates (other than with respect to the portion of the Residual
Certificates retained by the Company).
(e) The Underwriter covenants and agrees that on or prior to the fifth
day after the Closing Date, it shall provide the Company with a
certificate, setting forth (i) in the case of each class of Certificates,
(A) if less than 10% of the aggregate principal balance of such class of
Certificates has been sold to the public as of such date, the value
calculated pursuant to clause (b)(iii) of Exhibit VI hereto, or, (B) if 10%
or more of such class of Certificates has been sold to the public as of
such date but no single price is paid for at least 10% of the aggregate
principal balance of such class of Certificates, then the weighted average
price at which the Certificates of such class were sold expressed as a
percentage of the principal balance of such class of Certificates sold, or
(C) the first single price at which at least 10% of the aggregate principal
balance of such class of Certificates was sold to the public, (ii) the
prepayment assumption used in pricing each class of Certificates, and (iii)
such other information as to matters of fact as the Company may reasonably
request to enable it to comply with its reporting requirements with respect
to each class of Certificates to the extent such information can in the
good faith judgment of the Underwriter be determined by it.
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The Underwriter covenants and agrees to pay directly, or reimburse the
Company upon demand for (i) any and all taxes (including penalties and interest)
owed or asserted to be owed by the Company as a result of a claim by the
Internal Revenue Service that the transfer of any of the Residual Certificates
may be disregarded for federal tax purposes, whether to the Underwriter
hereunder or any transfer thereof by the Underwriter and (ii) any and all
losses, claims, damages and liabilities, including attorney's fees and expenses,
arising out of any failure of the Underwriter to make payment or reimbursement
in connection with any such assertion as required in (i) above. In addition, the
Underwriter acknowledges that on the Closing Date immediately after the
transactions described herein it will be the owner of the Residual Certificates
for federal tax purposes, and the Underwriter covenants that it will not assert
in any proceeding that the transfer of the Residual Certificates from the
Company to the Underwriter should be disregarded for any purpose.]
4. Purchase By, Sale and Delivery To, and Offering By, Underwriter -
Closing Date.
(a) The Company agrees to sell to the Underwriter, and on the basis of
the representations, warranties, covenants and agreements herein contained,
but subject to the terms and conditions herein set forth, the Underwriter
agrees to purchase, the Offered Certificates at a purchase price determined
in the manner set forth in Schedule 1 hereto. In addition to the purchase
price, the Underwriter also agrees to pay the Company accrued interest
determined in the manner set forth in Schedule 1 hereto. The purchase price
for the Certificates was agreed to by the Company in reliance upon the
transfer from the Company to the Underwriter of the tax liabilities
associated with the ownership of the Residual Certificates.
(b) The Company will deliver the Offered Certificates to the
Underwriter in a manner mutually agreeable to all parties in such names and
authorized denominations as the Underwriter may direct by notice in writing
to the Company given at or prior to 12:00 noon New York time on the
Business Day (as such term is defined in the Pooling Agreement) preceding
the Closing Date or, if no such direction is received, in the name of the
Underwriter, against payment of the purchase price therefor by wire
transfer in immediately available funds, payable to the order of the
Company. The Class [______] Certificates will be delivered in book-entry
form through the facilities of The Depository Trust Company. The Company
shall make the global certificates for the book-entry certificates and
certificates for the Residual Certificates available for inspection by the
Underwriter on the Business Day preceding the Closing Date. The time and
date of delivery and closing shall be at 1:00 p.m., New York time on
[______, 200_]; provided, however, that such date and/or time may be
accelerated or extended by mutual agreement by the Company and the
Underwriter. The time and date of such payment and delivery are herein
referred to as the "Closing Date."
(c) After the execution and delivery of this Agreement, the
Underwriter proposes to make a public offering of the Offered Certificates
as set forth in the Prospectus. The Underwriter covenants and agrees not to
offer, sell or otherwise distribute the Offered Certificates (except for
the sale thereof in exempt transactions) in any state or country in which
the Offered Certificates are not exempt from registration under the
securities laws
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or blue sky laws of such state or country, except where the Offered
Certificates will have been qualified for offering and sale by the Company
at the written direction of the Underwriter under such securities laws or
blue sky laws. Notwithstanding anything herein to the contrary, the
Underwriter shall not permit the sale of any Class B-3 Certificate to
anyone other than an institutional investor who is either a "qualified
institutional buyer" within the meaning of Rule 144A under the Act or an
"accredited investor" within the meaning of Section 501 of Regulation D.
5. Offering Materials.
(a) The Underwriter agrees to provide to the Company, not less than
two (2) Business Days prior to the date on which the Company is to file the
Prospectus Supplement with the Commission pursuant to Section 6(b) of this
Agreement, all information (in such written or electronic format as
required by the Company) with respect to the Offered Certificates which
constitutes Computational Materials or Structural Term Sheets, which
information:
(i) is generated based on assumptions regarding the payment
priorities and characteristics of a Class of Offered Certificates to
be purchased by the Underwriter; and
(ii) is made available to prospective investors under the
following conditions prior to the time of filing of the Prospectus
pursuant to Rule 424(b) under the Act:
(A) in the case of each prospective investor that has orally
indicated to the Underwriter that it will purchase all or a
portion of a Class of Offered Certificates to which such
Computational Materials or Structural Term Sheets relate, the
Computational Materials or Structural Term Sheets, as applicable,
relating to such Class that are made available to such
prospective investor; and
(B) for any prospective investor, all Computational
Materials and Structural Term Sheets that are made available to
such prospective investor after the structure for the entire
Series of Certificates is finalized.
With respect to Collateral Term Sheets, the Underwriter agrees to provide
the Company, not more than one (1) Business Day after first use, all information
(in such written or electronic format as required by the Company) with respect
to the Offered Certificates which constitutes Collateral Term Sheets.
The Underwriter agrees to provide the Company, not less than two (2)
Business Days prior to the date on which the Company is to file the Prospectus
Supplement with the Commission pursuant to Section 6(b) of this Agreement, (a)
the source code (in such written or electronic format as required by the
Company) for each Intex Model that is made available to
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any prospective investor and (b) the Bloomberg Materials related to each
Bloomberg Model that is made available to any prospective investor.
The term "Intex Model" means a computer model consisting of a computer
source code, made directly available to prospective investors, that allows
prospective investors to generate hypothetical performance data with respect to
the Offered Certificates based on assumptions chosen by them regarding certain
characteristics of the related mortgage loans; provided, that in the event that
the computer source code of such computer model is modified, the modified
computer model shall constitute a separate "Intex Model."
The term "Bloomberg Model" means a computer model created by Bloomberg L.P.
("Bloomberg"), based on written information provided to Bloomberg (the
"Bloomberg Materials"), that allows prospective investors who have received an
access code (the "Bloomberg Access Code") to use the Bloomberg Model to generate
hypothetical performance data with respect to the Offered Certificates based on
assumptions chosen by them regarding certain characteristics of the related
mortgage loans; provided, that in the event that such computer model is
modified, the modified computer model shall constitute a separate "Bloomberg
Model."
The terms "ABS Term Sheets," "Collateral Term Sheets," "Computational
Materials" and "Structural Term Sheets" shall have the meanings ascribed to them
in the Commission's No-Action Letter, dated May 20, 1994, addressed to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx
Structured Asset Corporation (as made generally applicable to registrants,
issuers and underwriters by the Commission's response to the request of the
Public Securities Association (the "Association") dated May 24, 1994) as such
letter is supplemented by the Commission's No-Action Letter, dated February 17,
1995, addressed to the Association (collectively, the "Xxxxxx/PSA Letter"). As
used herein, the term "Evaluation Models-Materials" shall mean Computational
Materials, Intex Models and Bloomberg Materials.
In addition to any prior delivery by the Underwriter to the Company of the
foregoing materials in electronic format, the foregoing materials will be
delivered by the Underwriter to the Company via express mail under cover of a
letter of an officer of the Underwriter to the effect, with respect to
Computational Materials, in the form set forth in Exhibit I-A hereto, with
respect to ABS Term Sheets, in the form set forth in Exhibit I-B hereto, with
respect to Intex Models, in the form set forth in Exhibit I-C hereto and with
respect to Bloomberg Models, in the form set forth in Exhibit I-D hereto. With
respect to Computational Materials, nothing in this Section 5 will be construed
to require the Underwriter to furnish the Company with any Computational
Materials that relate to abandoned structures.
(b) On or prior to the date of the Prospectus, the Underwriter shall
provide to the Company a letter or letters dated as of the date on which
the Evaluation Models-Materials are filed with the Commission, in form and
substance acceptable to the Company, of independent certified public
accountants acceptable to the Company, stating in effect that such
independent certified public accountants have performed certain specified
procedures, all of which have been agreed to by the Company, and that (i)
with
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respect to Computational Materials, they have verified or confirmed, as
appropriate, the financial, numerical or statistical information to be
filed by the Company as part of the Computational Materials and have found
such information to be accurate without exception, subject to rounding and
exceptions, if any, approved by the Company in writing; (ii) with respect
to each Intex Model, they have compared sample yield data output from such
Intex Model with respect to each Class of Offered Certificates with respect
to which such Intex Model allows prospective investors to generate
hypothetical performance data, using the same prepayment assumptions as
used in the Prospectus Supplement for the Offered Certificates (or such
other prepayment assumptions as the Company shall have agreed to), to the
yield data output produced by the accountant's model developed for the
Offered Certificates using the same set of prepayment assumptions and have
found such data output to be in agreement; (iii) with respect to each Intex
Model, in the event such Intex Model allows prospective investors to
generate hypothetical performance data with respect to the Senior
Subordinate Certificates (unless the yield tables with respect to the
Senior Subordinate Certificates included in the Prospectus Supplement were
generated using such Intex Model), they have compared sample yield and loss
data output from such Intex Model with respect to such Certificates using
the same prepayment and loss assumptions as used in the Prospectus
Supplement for the Offered Certificates (or such other prepayment and loss
assumptions as the Company shall have agreed to) to the yield and loss data
output produced by the accountant's model developed for the Offered
Certificates using the same set of prepayment and loss assumptions and have
found such data output to be in agreement; and (iv) with respect to each
Bloomberg Model, they have compared sample yield data output from such
Bloomberg Model with respect to each Class of Offered Certificates with
respect to which such Bloomberg Model allows prospective investors to
generate hypothetical performance data, using the same prepayment
assumptions as used in the Prospectus Supplement for the Offered
Certificates (or such other prepayment assumptions as the Company shall
have agreed to), to the yield data output produced by the accountant's
model developed for the Offered Certificates using the same set of
prepayment assumptions and have found such data output to be in agreement.
Such letter or letters will be obtained at the sole expense of the
Underwriter. If the Underwriter does not provide any Computational
Materials to the Company pursuant to Section 5(a) of this Agreement, the
Underwriter shall deliver to the Company on the Closing Date a certificate
to the effect that no Computational Materials required to be filed with the
Commission were made available to any prospective investor in written or
electronic form in connection with the offering of the Certificates. If the
Underwriter does not provide ABS Term Sheets to the Company pursuant to
Section 5(a) of this Agreement, the Underwriter shall deliver to the
Company on the Closing Date a certificate to the effect that no ABS Term
Sheets required to be filed with the Commission were made available to any
prospective investor in written or electronic form in connection with the
offering of the Certificates. If the Underwriter does not provide Intex
Models to the Company pursuant to Section 5(a) of this Agreement, the
Underwriter shall deliver to the Company on the Closing Date a certificate
to the effect that no Intex Models were made available to any prospective
investor in connection with the offering of the Certificates. If the
Underwriter does not provide Bloomberg Materials to the Company pursuant to
Section 5(a) of this Agreement, the Underwriter shall deliver to the
Company on the
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Closing Date a certificate to the effect that no Bloomberg Models were made
available to any prospective investor in connection with the offering of
the Certificates.
(c) (i) The Underwriter represents and warrants to, and covenants
with, the Company that:
(A) all information provided to the Company by the
Underwriter pursuant to this Section 5, as of the date such
information is so provided and as of the date such information is
filed by the Company with the Commission, will not include any
untrue statement of a material fact and, when considered together
with the Prospectus, will not omit to state any material facts
required to be stated therein or necessary to make the statements
contained therein not misleading; provided, however, that the
foregoing representation and warranty shall not apply to such
untrue statement or omission resulting from any material
inaccuracy or omission in the Company Provided Information on
which such information is based;
(B) the Computational Materials and ABS Term Sheets, if any,
provided to the Company pursuant to this Section 5 constitute a
complete set of all Computational Materials and ABS Term Sheets
required to be filed with the Commission, and the Intex Models
and Bloomberg Materials, if any, provided to the Company pursuant
to this Section 5 constitute a complete set of all Intex Models
and Bloomberg Materials required to be provided to the Company
pursuant to this Section 5;
(C) the Underwriter will comply with the Xxxxxx/PSA letter
in connection with the use of the Computational Materials and ABS
Term Sheets, if any, and all applicable laws and regulations,
except for those portions of the Xxxxxx/PSA Letter and all
applicable laws and regulations which the Company has expressly
agreed to be the sole party to satisfy pursuant to the terms of
this Agreement;
(D) the Underwriter will not send any confirmation to any
prospective investor in the Offered Certificates unless and until
all Evaluation Models-Materials and ABS Term Sheets, if any,
referred to in Section 5(a) of this Agreement have been filed
with the Commission;
(E) all material assumptions that are used to generate the
information in the Computational Materials made available to any
prospective investor will be included, as appropriate, in such
Computational Materials;
(F) if any Computational Materials or ABS Term Sheets that
are required to be filed with the Commission or any Intex Models
or Bloomberg Materials were based on assumptions with respect to
a mortgage pool's composition or Offered Certificate structuring
terms that
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were revised, in any material respect, prior to the printing of
the Prospectus, the Underwriter will prepare revised
Computational Materials, ABS Term Sheets, Intex Models or
Bloomberg Materials, as applicable, based on the final
assumptions and will provide such revised Computational
Materials, ABS Term Sheets, Intex Models or Bloomberg Materials
marked "as revised" to the Company within the time periods set
forth in Section 5(a) hereof;
(G) the Underwriter will not make available to potential
investors written material of any kind relating to the Offered
Certificates other than the Prospectus and information permitted
to be distributed pursuant to the Xxxxxx/PSA Letter;
(H) the Underwriter has not directed or caused any third
party to distribute to prospective investors or provided to any
third party for the purpose of distribution to prospective
investors, any Computational Materials or ABS Term Sheets
required to be filed with the Commission or any Intex Models
(except for such Computational Materials, ABS Term Sheets and
Intex Models that the Underwriter is required to provide to the
Company pursuant to this Section 5);
(I) the Underwriter has not directed or caused any third
party to distribute to prospective investors, or provided to any
third party for the purpose of distribution to prospective
investors, a Bloomberg Access Code (except for such Bloomberg
Access Code with respect to which the Underwriter is required to
provide the related Bloomberg Materials to the Company pursuant
to this Section 5);
(J) the Underwriter will not provide to any investor or
prospective investor in the Offered Certificates (x) any
Computational Materials, ABS Term Sheets or Intex Models or (y)
any Bloomberg Access Code, on or after the day on which the
Computational Materials, ABS Term Sheets, Intex Models and
Bloomberg Materials are required to be provided to the Company
pursuant to Section 5(a) (other than copies of Computational
Materials, ABS Term Sheets or Intex Models previously submitted
to the Company in accordance with Section 5(a) for filing
pursuant to Section 6(b), or copies of the Bloomberg Access Code
for which the related Bloomberg Materials have been previously
submitted to the Company in accordance with Section 5(a) for
filing pursuant to Section 6(b)), unless such Computational
Materials, ABS Term Sheets or Intex Models, or such Bloomberg
Access Code, are preceded or accompanied by the delivery of a
Prospectus to such investor or prospective investor; and
(K) in the event that the Underwriter makes available to any
investor or prospective investor in the Offered Certificates any
Intex
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Model or Bloomberg Access Code, the Underwriter shall notify all
investors and prospective investors (as such term is used in the
Xxxxxx/PSA Letter) in the Offered Certificates that such Intex
Model or Bloomberg Access Code is available to such investors
and, upon request, provide such Intex Model or such Bloomberg
Access Code, as applicable, to such investors.
(ii) The Underwriter further covenants with the Company that if
any Computational Materials, ABS Term Sheets, Intex Models or
Bloomberg Materials required to be provided to the Company pursuant to
Section 5(a) of this Agreement are determined to contain any
information which includes any untrue statement of a material fact or,
when considered together with the Prospectus, omits to state any fact
required to be stated therein or necessary to make the statements
contained therein not misleading, the Underwriter shall, at its
expense, (x) promptly prepare and deliver to the Company, and make
available to each prospective investor to whom such Computational
Materials or ABS Term Sheets were made available, corrected
Computational Materials or ABS Term Sheets, or (y) promptly prepare
and deliver to the Company corrected Intex Models or Bloomberg
Materials and notify each prospective investor to whom the related
Intex Models or Bloomberg Models were made available that the Intex
Models or Bloomberg Models have been corrected, as applicable;
provided, that the costs arising out of such preparation and delivery
of the corrected Computational Materials, ABS Term Sheets, Intex
Models or Bloomberg Materials shall be borne by the Company if the
untrue statement of a material fact or the omission of any fact
required to be stated therein or necessary to make the statements
contained therein not misleading arose out of any material
misstatement or omission in the Company Provided Information. All
information provided to the Company pursuant to this Section 5(c)(ii)
shall be provided within the time periods set forth in Section 5(a)
hereof.
(iii) The Underwriter covenants with the Company that:
(A) all Computational Materials made available to
prospective investors shall contain the following legend or a
legend that is similar to the following legend in all material
respects:
"COMPUTATIONAL MATERIALS DISCLAIMER"
The attached tables and other statistical analyses (the "Computational
Materials") are privileged and intended for use by the addressee only. These
Computational Materials are furnished to you solely by [name of underwriter] and
not by the issuer of the securities. They may not be provided to any third party
other than the addressee's legal, tax, financial and/or accounting advisors for
the purposes of evaluating said material.
Numerous assumptions were used in preparing the Computational Materials, which
may or may not be reflected therein. As such, no assurance can be given as to
the Computational Materials' accuracy, appropriateness or completeness in any
particular context; nor as to whether the
12
Computational Materials and/or the assumptions upon which they are based reflect
present market conditions or future market performance. These Computational
Materials should not be construed as either projections or predictions or as
legal, tax, financial or accounting advice.
Any weighted average lives, yields and principal payment periods shown in the
Computational Materials are based on prepayments assumptions, and changes in
such prepayment assumptions may dramatically affect such weighted average lives,
yields and principal payment periods. In addition, it is possible that
prepayments on the underlying assets will occur at rates slower or faster than
the rates shown in the attached Computational Materials. Furthermore, unless
otherwise provided, the Computational Materials assume no losses on the
underlying assets and no interest shortfall. The specific characteristics of the
securities may differ from those shown in the Computational Materials due to
differences between the actual underlying assets and the hypothetical underlying
assets used in preparing the Computational Materials. The principal amount and
designation of any security described in the Computational Materials are subject
to change prior to issuance. Neither [name of underwriter] nor any of its
affiliates makes any representation or warranty as to the actual rate or timing
of payments on any of the underlying assets or the payments or yield on the
securities.
Although a registration statement (including the Prospectus) relating to the
securities discussed in this communication has been filed with Securities and
Exchange Commission and is effective, the final prospectus supplement relating
to the securities discussed in this communication has not been filed with
Securities and Exchange Commission. This communication shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall there be any sale
of the securities, discussed in this communication in any state in which such
offer, solicitation or sale would be unlawful prior to registration or
qualification of such securities under the securities laws of any such state.
Prospective purchasers are referred to the final prospectus supplement relating
to the securities discussed in this communication which supersede these
Computational Materials and any matter discussed in this communication. Once
available, a final prospectus and prospectus supplement may be obtained by
contacting the [name of underwriter] Trading Desk at [telephone number of
underwriter].
(B) all Collateral Term Sheets made available to prospective
investors shall contain the following legend or a legend that is
similar to the following legend in all material respects:
"THE INFORMATION CONTAINED HEREIN HAS BEEN PREPARED SOLELY FOR
THE USE OF THE ADDRESSEE AND HAS NOT BEEN INDEPENDENTLY VERIFIED
BY [NAME OF UNDERWRITER]. ACCORDINGLY, [NAME OF UNDERWRITER]
MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY
KIND AND EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY USE OR MISUSE
OF THE CONTENTS HEREOF. [NAME OF UNDERWRITER] ASSUMES NO
RESPONSIBILITY FOR THE ACCURACY OF ANY MATERIAL CONTAINED HEREIN.
THE INFORMATION CONTAINED HEREIN
13
WILL BE SUPERSEDED BY THE DESCRIPTION OF THE MORTGAGE LOANS
CONTAINED IN THE PROSPECTUS SUPPLEMENT. SUCH INFORMATION
SUPERSEDES THE INFORMATION IN ALL PRIOR COLLATERAL TERM SHEETS,
IF ANY."
(C) all Structural Term Sheets made available to prospective
investors shall contain the following legend or a legend that is
similar to the following legend in all material respects:
"THIS INFORMATION IS FURNISHED TO YOU SOLELY BY [NAME OF
UNDERWRITER] AND NOT BY THE ISSUER OF THE SECURITIES OR ANY OF
ITS AFFILIATES. [NAME OF UNDERWRITER] IS ACTING AS UNDERWRITER
AND NOT ACTING AS AGENT FOR THE ISSUER OR ITS AFFILIATES IN
CONNECTION WITH THE PROPOSED TRANSACTION.
THIS PRELIMINARY TERM SHEET IS PROVIDED FOR INFORMATION PURPOSES
ONLY, AND DOES NOT CONSTITUTE AN OFFER TO SELL, NOR A
SOLICITATION OF ANY OFFER TO BUY, THE REFERENCED SECURITIES. IT
DOES NOT PURPORT TO BE ALL-INCLUSIVE OR TO CONTAIN ALL OF THE
INFORMATION THAT A PROSPECTIVE INVESTOR MAY REQUIRE TO MAKE A
FULL ANALYSIS OF THE TRANSACTION. ALL AMOUNTS ARE APPROXIMATE AND
SUBJECT TO CHANGE. THE INFORMATION CONTAINED HEREIN SUPERSEDES
INFORMATION CONTAINED IN ANY PRIOR TERM SHEET FOR THIS
TRANSACTION. IN ADDITION, THE INFORMATION CONTAINED HEREIN WILL
BE SUPERSEDED BY INFORMATION CONTAINED IN TERM SHEETS CIRCULATED
AFTER THE DATE HEREOF AND BY INFORMATION CONTAINED IN THE
PROSPECTUS AND PROSPECTUS SUPPLEMENT FOR THIS TRANSACTION. AN
OFFERING MAY BE MADE ONLY THROUGH THE DELIVERY OF THE PROSPECTUS
AND PROSPECTUS SUPPLEMENT."
(D) any communication to a prospective investor containing
(i) an access code to permit such investor to use Intex Models or
(ii) any other information allowing such investor to generate
performance data using Intex shall be in writing and shall
contain the following legend or a legend that is similar to the
following legend in all material respects:
"INTEX MODELS DISCLAIMER"
The tables and other statistical analyses (the "Hypothetical Performance Data")
that you will produce using Intex with the attached information are privileged
and intended solely for use by
14
you (the party to whom [name of underwriter] provided the computer model used to
generate them). The Hypothetical Performance Data will be generated by you using
a computer model prepared by [name of underwriter] in reliance upon information
furnished by the issuer of the securities and its affiliates, the accuracy and
completeness of which has not been verified by [name of underwriter] or any
other person. The computer model that you will use to prepare the Hypothetical
Performance Data was furnished to you solely by [name of underwriter] and not by
the issuer of the securities. It may not be (a) used for any purpose other than
to make a preliminary evaluation of the referenced securities or (b) provided by
you to any third party other than your legal, tax, financial and/or accounting
advisors for the purposes of evaluating the Hypothetical Performance Data. You
agree that the Hypothetical Performance Data will be generated by or on behalf
of you, and that neither [name of underwriter] nor anyone acting on its behalf
has generated or is in any way responsible for any Hypothetical Performance
Data.
Numerous assumptions were used in preparing the computer model you will use to
generate the Hypothetical Performance Data. Those assumptions may or may not be
reflected in the Hypothetical Performance Data. As such, no assurance can be
given as to the Hypothetical Performance Data's accuracy, appropriateness or
completeness in any particular context; nor as to whether the Hypothetical
Performance Data and/or the assumptions upon which it is based reflect present
market conditions or future market performance. The Hypothetical Performance
Data should not be construed as either projections or predictions or as legal,
tax, financial or accounting advice.
Any weighted average lives, yields and principal payment periods shown in the
Hypothetical Performance Data will be based on prepayment assumptions, and
changes in such prepayment assumptions may dramatically affect such weighted
average lives, yields and principal payment periods. In addition, it is possible
that prepayments on the underlying assets will occur at rates slower or faster
than the rates shown in the Hypothetical Performance Data. Furthermore, unless
otherwise provided, the Hypothetical Performance Data assumes no losses on the
underlying assets and no interest shortfall. The specific characteristics of the
securities may differ from those shown in the Hypothetical Performance Data due
to, among other things, differences between (a) the actual underlying assets and
the hypothetical underlying assets used in preparing the Hypothetical
Performance Data and (b) the assumptions used by you in producing the
Hypothetical Performance Data and the actual assumptions used in pricing the
actual securities. The principal amount, designation and terms of any security
described in the Hypothetical Performance Data are subject to change prior to
issuance. You should contact the [name of underwriter] Trading Desk at
[telephone number of underwriter] to confirm the final principal amount,
designation and terms of any security described in this communication prior to
committing to purchase that security. Neither [name of underwriter] nor any of
its affiliates makes any representation or warranty as to the actual rate or
timing of payments on any of the underlying assets or the payments or yield on
the securities.
Although a registration statement (including a prospectus) relating to the
securities discussed in this communication has been filed with the Securities
and Exchange Commission and is effective, the final prospectus supplement
relating to the securities discussed in this communication has not yet been
filed with the Securities and Exchange Commission. This communication shall not
constitute an offer to sell or the solicitation of an offer to buy nor shall
15
there be any sale of the securities discussed in this communication in any state
in which such offer, solicitation or sale would be unlawful prior to
registration or qualification of such securities under the securities laws of
any such state. The principal amount, designation and terms of any security
described in the computer model and Hypothetical Performance Data are
preliminary and subject to change prior to issuance.
Prospective purchasers are referred to the final prospectus supplement relating
to the securities discussed in this communication for definitive yield and
maturity information regarding those securities, based on the final principal
amounts, designations and terms of those securities. Once available, a final
prospectus and prospectus supplement may be obtained by contacting the [name of
underwriter] Trading Desk at [telephone number of underwriter].
The computer model referenced herein supersedes all computer models related to
the subject securities that have been made available to you previously. In
addition, this computer model will be superseded in its entirety by the final
prospectus supplement relating to the actual securities preliminarily described
by this computer model.
Please be advised that the securities described herein may not be appropriate
for all investors. Potential investors must be willing to assume, among other
things, market price volatility, prepayment, yield curve and interest rate
risks. Investors should make every effort to consider the risks of these
securities.
If you have received this communication in error, please notify the sending
party immediately by telephone and return the original to such party by mail."
(E) any communication to a prospective investor
containing an access code or other information permitting
such investor to use Bloomberg Models shall be in writing
and shall contain the following legend or a legend that is
similar to the following legend in all material respects:
"BLOOMBERG MODELS DISCLAIMER"
The tables and other statistical analyses (the "Hypothetical Performance Data")
that you will produce using a computer model that you will access with the
attached access code or other information are privileged and intended solely for
use by you (the party to whom [name of underwriter] provided the access code or
other information allowing access to the computer model used to generate them).
The Hypothetical Performance Data will be generated by you using a computer
model prepared by Bloomberg L.P. ("Bloomberg") in reliance upon information
furnished by [name of underwriter], the accuracy and completeness of which has
not been verified by [name of underwriter] or any other person. The access code
or other information allowing access to the computer model that you will use to
prepare the Hypothetical Performance Data was furnished to you solely by [name
of underwriter] and not by the issuer of the securities. It may not be (a) used
for any purpose other than to make a preliminary evaluation of the referenced
securities or (b) provided by you to any third party other than your legal, tax,
financial and/or accounting advisors for the purposes of evaluating the
Hypothetical
16
Performance Data. You agree that the Hypothetical Performance Data will be
generated by or on behalf of you, and that neither [name of underwriter] nor
anyone acting on its behalf has generated or is in any way responsible for any
Hypothetical Performance Data.
Numerous assumptions were used in preparing the computer model you will use to
generate the Hypothetical Performance Data. Those assumptions may or may not be
reflected in the Hypothetical Performance Data. As such, no assurance can be
given as to the Hypothetical Performance Data's accuracy, appropriateness or
completeness in any particular context; nor as to whether the Hypothetical
Performance Data and/or the assumptions upon which it is based reflect present
market conditions or future market performance. The Hypothetical Performance
Data should not be construed as either projections or predictions or as legal,
tax, financial or accounting advice.
Any weighted average lives, yields and principal payment periods shown in the
Hypothetical Performance Data will be based on prepayment assumptions, and
changes in such prepayment assumptions may dramatically affect such weighted
average lives, yields and principal payment periods. In addition, it is possible
that prepayments on the underlying assets will occur at rates slower or faster
than the rates shown in the Hypothetical Performance Data. Furthermore, unless
otherwise provided, the Hypothetical Performance Data assumes no losses on the
underlying assets and no interest shortfall. The specific characteristics of the
securities may differ from those shown in the Hypothetical Performance Data due
to, among other things, differences between (a) the actual underlying assets and
the hypothetical underlying assets used in preparing the Hypothetical
Performance Data and (b) the assumptions used by you in producing the
Hypothetical Performance Data and the actual assumptions used in pricing the
actual securities. The principal amount, designation and terms of any security
described in the Hypothetical Performance Data are subject to change prior to
issuance. You should contact the [name of underwriter] Trading Desk at
[telephone number of underwriter] to confirm the final principal amount,
designation and terms of any security described in this communication prior to
committing to purchase that security. Neither [name of underwriter] nor any of
its affiliates makes any representation or warranty as to the actual rate or
timing of payments on any of the underlying assets or the payments or yield on
the securities.
Although a registration statement (including a prospectus) relating to the
securities discussed in this communication has been filed with the Securities
and Exchange Commission and is effective, the final prospectus supplement
relating to the securities discussed in this communication has not yet been
filed with the Securities and Exchange Commission. This communication shall not
constitute an offer to sell or the solicitation of an offer to buy nor shall
there be any sale of the securities discussed in this communication in any state
in which such offer, solicitation or sale would be unlawful prior to
registration or qualification of such securities under the securities laws of
any such state. The principal amount, designation and terms of any security
described in the computer model and Hypothetical Performance Data are
preliminary and subject to change prior to issuance.
Prospective purchasers are referred to the final prospectus supplement relating
to the securities discussed in this communication for definitive yield and
maturity information regarding those securities, based on the final principal
amounts, designations and terms of those securities. Once
17
available, a final prospectus and prospectus supplement may be obtained by
contacting the [name of underwriter] Trading Desk at [telephone number of
underwriter].
The computer model accessed with the attached access code or other information
supersedes all computer models related to the subject securities that have been
made available to you previously. In addition, this computer model will be
superseded in its entirety by the final prospectus supplement relating to the
actual securities preliminarily described by this computer model.
Please be advised that the securities described herein may not be appropriate
for all investors. Potential investors must be willing to assume, among other
things, market price volatility, prepayment, yield curve and interest rate
risks. Investors should make every effort to consider the risks of these
securities.
If you have received this communication in error, please notify the sending
party immediately by telephone and return the original to such party by mail."
(d) Notwithstanding any other provision herein, the Underwriter agrees
to pay all costs and expenses of the Company incurred in connection with
any action by the Company against the Underwriter to enforce any of its
rights set forth in this Section 5, including, without limitation, legal
fees and expenses.
6. Covenants and Agreements of the Company. The Company covenants and
agrees with the Underwriter that:
(a) The Company will advise the Underwriter promptly of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the institution of any proceedings for that
purpose, and will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible the lifting thereof, if
issued. With respect to the sale of the Offered Certificates, the Company
will advise the Underwriter promptly of any request by the Commission for
any amendment of or supplement to the Registration Statement or the
Prospectus or for additional information, and will not at any time file any
amendment to the Registration Statement or amendment of or supplement to
the Prospectus which shall not previously have been submitted to the
Underwriter a reasonable time prior to the proposed filing thereof or to
which the Underwriter shall reasonably object in writing or which is not in
compliance with the Act and the Rules and Regulations.
(b) The Company will prepare and file the Prospectus with the
Commission pursuant to and in accordance with Rule 424. Subject to the
Underwriter's compliance with its obligations pursuant to Section 5 of this
Agreement, the Company shall file with the Commission under cover of Form
8-K (i) Evaluation Models-Materials and Structural Term Sheets concurrently
with the filing of the Prospectus pursuant to Rule 424(b) under the Act or
on such earlier date as the Underwriter may reasonably request and (ii)
Collateral Term Sheets within two (2) Business Days after such Collateral
Term Sheets are made available to prospective investors. Notwithstanding
the foregoing, the
18
Company shall not be obligated to file any such Evaluation Models-Materials
or ABS Term Sheets that it has determined contain any material error or
omission. The Company will notify the Underwriter prior to the Company's
election not to file Evaluation Models-Materials or ABS Term Sheets due to
the Company's determination that such Evaluation Models-Materials or ABS
Term Sheets contain a material error or omission. In the event of any delay
in the delivery by the Underwriter to the Company of the Evaluation
Models-Materials or ABS Term Sheets required by Section 5(a) of this
Agreement or the independent certified public accountants' letter or
letters required to be delivered in accordance with Section 5(b) of this
Agreement, the Company shall have the right to delay the Closing Date and
to take other appropriate actions.
(c) The Company will prepare and file with the Commission, promptly
upon the request of the Underwriter, any amendment of or supplement to the
Registration Statement or the Prospectus which in the opinion of the
Underwriter may be necessary to enable the Underwriter to continue the
distribution of the Offered Certificates and will use its best efforts to
cause the same to become effective (if applicable) as promptly as possible.
(d) If at any time after the effective date of the Registration
Statement, a prospectus relating to the Offered Certificates is required to
be delivered under the Act, and any event occurs as a result of which the
Prospectus or any other prospectus as then in effect 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 is necessary at any
time to amend or supplement the Prospectus to comply with the Act, the
Company will promptly notify the Underwriter thereof and will prepare an
amended or supplemented prospectus which will correct such statement or
omission or effect such compliance; and, in case the Underwriter is
required to deliver a prospectus relating to the Offered Certificates nine
months or more after the date of the Prospectus, the Company, upon the
request of the Underwriter and at the expense of the Underwriter, will
prepare promptly such prospectus or prospectuses as may be necessary to
permit compliance with the requirements of Section 10(a)(3) of the Act.
(e) If the Underwriter so requests, the Company will deliver to the
Underwriter, at or before the Closing Date, a conformed copy of the
Registration Statement and all amendments thereof and all exhibits thereto,
and a copy of all related prospectuses and prospectus supplements and will
deliver to the Underwriter such additional number of copies of the
Registration Statement, and all amendments thereof, and all exhibits
thereto, as the Underwriter may reasonably request. The Company will
deliver or mail to or upon the order of the Underwriter on the date of the
initial public offering, and thereafter from time to time during the period
when delivery of a prospectus relating to the Offered Certificates is
required under the Act, as many copies of the Prospectus, in final form or
as thereafter amended or supplemented, as the Underwriter may reasonably
request; provided, however, that the expense of the preparation and
delivery of any Prospectus required for use nine months or more after the
date of the Prospectus shall be borne by the Underwriter.
19
(f) The Company will cooperate with the Underwriter to enable the
Offered Certificates to be qualified for sale under the securities laws of
such jurisdictions as the Underwriter may designate and at the request of
the Underwriter, will make such applications and furnish such information
as may be required of it as the issuer of the Offered Certificates for that
purpose; provided, however, that the Company shall not be required to
qualify to do business or to file a general consent to service of process
in any such jurisdiction. The Company will, from time to time, prepare and
file such statements and reports as are or may be required of it as the
issuer of the Offered Certificates to continue such qualifications in
effect for so long a period as the Underwriter may reasonably require for
the distribution of the Offered Certificates.
7. Payment of Expenses. Except as otherwise provided herein, the Company
will pay or cause to be paid (directly or by reimbursement) all expenses
incident to the performance of its obligations under this Agreement (except as
specifically excluded below), including but not limited to all expenses and
taxes incident to delivery of the Offered Certificates to the Underwriter, all
expenses incident to the registration of the Offered Certificates under the Act
and the printing or preparation of copies of the Registration Statement, the
Prospectus, any amendment thereof or supplement thereto, the Pooling Agreement,
and this Agreement and furnishing the same to the Underwriter and dealers,
expenses related to the preparation of the letter of independent accountants (a
form of which is attached to this Agreement as Exhibit V-A), fees paid to any
rating agencies to rate the Offered Certificates, the costs of preparing
certificates representing the Offered Certificates, the Trustee's and Delaware
Trustee's fees and expenses, and all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section.
Notwithstanding the foregoing, the Underwriter will pay all legal fees and
expenses of counsel for the Underwriter incurred in performance of its "due
diligence" responsibilities, review of all offering documents and preparation of
other documentation and expenses related to the preparation of the letter of
independent accountants referred to in Section 5(b) of this Agreement.
The Company shall not be obligated to qualify the Offered Certificates for
sale under the laws of any state in which it has not already determined their
eligibility for investment under the laws of such state.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Underwriter
and its officers and directors, and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act (a "Controlling
Person"), against any losses, claims, damages, liabilities or expenses
(including the reasonable cost of investigating and defending against any
claims therefor and counsel fees incurred in connection therewith, except
as otherwise provided herein), joint or several (each, a "Claim"), which
may be based upon the Act, or any other statute or at common law, on the
ground or alleged
20
ground that the Registration Statement, as from time to time amended or
supplemented (including, without limitation, any information incorporated
by reference therein), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the
Prospectus, as from time to time amended or supplemented (including,
without limitation, any information incorporated by reference therein),
included any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, unless such statement or omission was made in
reliance upon, and in conformity with, written information furnished to the
Company by the Underwriter or any affiliate of the Underwriter, or
information electronically transmitted to the Company by the Underwriter or
any affiliate of the Underwriter, specifically for use in the preparation
thereof (including, without limitation, any information in any Evaluation
Models-Materials or ABS Term Sheets, but excluding Company Provided
Information and any untrue statement of material fact in any Evaluation
Models-Materials or ABS Term Sheets resulting from an untrue statement in
the Company Provided Information, required to be provided by the
Underwriter pursuant to Section 5(a) hereof); provided that in no case is
the Company to be liable with respect to any Claims made against the
Underwriter or any Controlling Person unless the Underwriter or Controlling
Person shall have notified the Company in writing, giving notice of the
nature of the Claim, within a reasonable time after service of a summons or
other first legal process that shall have been served upon the Underwriter
or Controlling Person, but failure to notify the Company of any such Claim
shall not relieve the Company from any liability which it may have to the
Underwriter or Controlling Person, except to the extent that it has been
materially prejudiced by such failure and provided further that the failure
to notify the Company of such Claim shall not relieve it from any liability
which it may have to the Underwriter or Controlling Person otherwise than
on account of the indemnity agreement contained in this paragraph. The
Company will be entitled to participate at its own expense in the defense,
or, if the Company so elects, to assume the defense of any suit brought to
enforce any such liability, but, if the Company elects to assume the
defense, such defense shall be conducted by counsel chosen by it. In the
event the Company elects to assume the defense of any such suit and retain
such counsel, the Underwriter or Controlling Person or persons, defendant
or defendants in the suit, may retain additional counsel but shall bear the
fees and expenses of such counsel unless (i) the Company and the
Underwriter or Controlling Person shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the Company and the
Underwriter or Controlling Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Company shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one counsel
for the Underwriter and Controlling Persons requesting indemnification and
that all such fees and expenses shall be reimbursed as they are incurred.
The Company shall not be liable to indemnify any person for any settlement
of any Claim effected without the Company's consent, which consent shall
not be unreasonably withheld. The Company shall not, without the prior
written consent of the Underwriter or Controlling
21
Person, which consent will not be unreasonably withheld, effect any
settlement of any pending or threatened proceeding in respect of which the
Underwriter or Controlling Person is or could have been a party and
indemnity is or could have been sought hereunder by the Underwriter or
Controlling Person unless such settlement includes an unconditional release
of the Underwriter or Controlling Person from all liability on Claims that
are the subject matter of such proceeding. This indemnity agreement will be
in addition to any liability which the Company might otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act ("Company
Controlling Person") against any Claim which may be based upon the Act, or
any other statute or at common law, on the ground or alleged ground that
the Registration Statement, as from time to time amended or supplemented
(including, without limitation, any information incorporated by reference
therein), contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the Prospectus, as
from time to time amended or supplemented (including, without limitation,
any information incorporated by reference therein), included any untrue
statement of a material fact or omitted to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, but only insofar as any such
statement or omission was made in reliance upon, and in conformity with,
written information furnished to the Company by the Underwriter or any
affiliate of the Underwriter, or information electronically transmitted to
the Company by the Underwriter or any affiliate of the Underwriter,
specifically for use in the preparation thereof (including, without
limitation, any Evaluation Models-Materials or ABS Term Sheets, but
excluding Company Provided Information and any untrue statement of a
material fact in any Evaluation Models-Materials or ABS Term Sheets
resulting from an untrue statement in the Company Provided Information,
required to be provided by the Underwriter pursuant to Section 5(a)
hereof); provided, however, that in no case is the Underwriter to be liable
with respect to any Claims made against the Company or any other person
against whom the action is brought unless the Company or such person shall
have notified the Underwriter in writing, giving notice of the nature of
the Claim, within a reasonable time after service of a summons or other
first legal process that shall have been served upon the Company or any
such person, but failure to notify the Underwriter of such Claim shall not
relieve it from any liability which it may have to the Company or any such
person except to the extent that it has been materially prejudiced by such
failure and provided further that the failure to notify the Underwriter of
such Claim shall not relieve it from any liability which it may have to the
Company or such person otherwise than on account of their indemnity
agreement contained in this paragraph. The Underwriter shall be entitled to
participate at its own expense in the defense, or, if they so elect, to
assume the defense of any suit brought to enforce any such liability, but,
if the Underwriter elects to assume the defense, such defense shall be
conducted by counsel chosen by the Underwriter. In the event that the
Underwriter elects to assume the defense of any such suit and retain such
counsel, the Company, said officers and directors or any Company
Controlling Person or persons, defendant or defendants in the suit, shall
bear the fees and
22
expenses of any additional counsel retained by them, respectively unless
(i) the Company, said officers and directors or any Company Controlling
Person or persons and the Underwriter or Controlling Person shall have
mutually agreed to the retention of such counsel or (ii) the named parties
to any such proceeding (including any impleaded parties) include both the
Company, said officers and directors or any Company Controlling Person or
persons and the Underwriter or Controlling Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Underwriter or Controlling Person shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one counsel for the Company, said
officers and directors or any Company Controlling Person or persons
requesting indemnification and that all such fees and expenses shall be
reimbursed as they are incurred. The Underwriter shall not be liable to
indemnify any person for any settlement of any such Claim effected without
the Underwriter's consent, which consent shall not be unreasonably
withheld. The Underwriter shall not, without the prior written consent of
the Company, said officers and directors or any Company Controlling Person
or persons, effect any settlement of any pending or threatened proceeding
in respect of which the Company, said officers and directors or any Company
Controlling Person or persons is or could have been a party and indemnity
is or could have been sought hereunder by the Company, said officers and
directors or any Company Controlling Person or persons unless such
settlement includes an unconditional release of the Company, said officers
and directors or any Company Controlling Person or persons from all
liability on Claims that are the subject matter of such proceeding. This
indemnity agreement will be in addition to any liability which the
Underwriter might otherwise have. In the event that the Underwriter
modifies any of the Company Provided Information, the Underwriter will
indemnify the Company for any untrue statement of a material fact therein
to the extent such information was modified by the Underwriter or any of
its affiliates without the express written consent of the Company and such
modification resulted in such material misstatement or material omission.
(c) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any Claims (or actions in respect
thereof) referred to herein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
Claims (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand
and the Underwriter on the other from the offering of the Offered
Certificates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the
one hand and the Underwriter on the other in connection with the statements
or omissions which resulted in such Claims (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the
23
Underwriter and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriter agree that it would not be just
and equitable if contribution were determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable
considerations referred to above. The amount paid or payable by an
indemnified party as a result of the Claims (or actions in respect thereof)
referred to above shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim. Notwithstanding the provisions
of this subsection (c), the Underwriter shall not be required to contribute
any amount in excess of the amount by which the total amount of
underwriting discounts and commissions received by the Underwriter exceeds
the amount of damages which the Underwriter would have otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(d) Notwithstanding any other provision of this Agreement, Section
3(b) and this Section 8 shall not apply to the assumptions set forth in the
section of the Prospectus Supplement captioned ["Yield and Prepayment
Considerations--Prepayment Assumptions," [the tables and percentages in the
section of the Prospectus Supplement captioned "Yield and Prepayment
Considerations--______] and the decrement tables attached to the Prospectus
Supplement as Appendix A.]
(e) The only information furnished to the Company either in writing or
by electronic transmission by the Underwriter or any affiliate for use in
the Prospectus Supplement, Prospectus or Registration Statement is the
information contained in the fifth sentence of the first paragraph under
the caption "Method of Distribution" in the Prospectus Supplement and
information provided for use in the preparation of any Evaluation
Models-Materials or ABS Term Sheets (excluding Company Provided
Information).
9. Survival of Indemnities, Representations, Warranties, etc. The
respective indemnities, representations, warranties, covenants, agreements and
other statements of the Company and the Underwriter, as set forth in this
Agreement or made by them respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation made by or on behalf
of the Underwriter, the Company or any of its officers or directors, any
Controlling Person or any Company Controlling Person, and shall survive delivery
of and payment for the Certificates.
10. Conditions of Underwriter's and the Company's Obligations.
A. Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder shall be subject to the accuracy, at and (except as
otherwise stated herein) as of the Closing Date, of the representations and
warranties made herein by the Company, to compliance
24
at and as of the Closing Date by the Company with its covenants and agreements
herein contained and other provisions hereof to be satisfied at or prior to the
Closing Date, and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been initiated or, to the knowledge of the Company or the Underwriter,
threatened by the Commission, and any request for additional information on
the part of the Commission (to be included in the Registration Statement or
the Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Underwriter.
(b) No fact shall have come to the attention of the Underwriter prior
to the Closing Date which causes the Underwriter to believe, as set forth
in writing to the Company prior to the Closing Date, that the Prospectus,
or any amendment thereof or supplement thereto, at the time it was required
to be delivered to a purchaser of the Offered Certificates, contained an
untrue statement of a material fact or omitted to state any material fact
which is required to be stated therein or is necessary to make the
statements therein, in the light of the circumstances existing at such
time, not misleading.
(c) The Underwriter shall have received from Xxxxxx, Xxxxxxxxxx &
Sutcliffe LLP, special counsel for the Company, and from [_________],
special counsel for the Company, opinions dated the Closing Date, to the
effect as set forth in Exhibits II and III hereto, respectively, and as
requested by the rating agencies specified in Section 10(B) hereof.
(d) The Underwriter shall have received a certificate, dated the
Closing Date, of an officer of the Company to the effect that:
(i) No stop order suspending the effectiveness of the
Registration Statement has been issued, and, to the best of the
knowledge of such officer, no proceedings for that purpose have been
instituted or are pending or contemplated under the Act; and
(ii) To the best of the knowledge of such officer, the
representations and warranties of the Company in this Agreement are
true and correct at and as of the Closing Date, and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date.
(e) The Company shall have furnished to the Underwriter such
additional certificates as the Underwriter may have reasonably requested as
to the accuracy, at and as of the Closing Date, of the representations and
warranties made herein by it, as to compliance at and as of the Closing
Date with the covenants and agreements made by it herein contained and
other provisions hereof to be satisfied at or prior to the Closing Date,
and as to other conditions to the obligations of the Underwriter hereunder.
25
(f) The Underwriter shall have received from [______], counsel for the
Underwriter, an opinion dated the Closing Date, with respect to the
incorporation of the Company, the validity of the Offered Certificates, the
Registration Statement and the Prospectus and such other related matters as
the Underwriter may reasonably request, and the Company shall have
furnished to such counsel such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters.
(g) The Underwriter shall have received from counsel to the Trustee,
an opinion dated the Closing Date, to the effect as set forth in Exhibit IV
hereto.
(h) The Underwriter shall have received from [______], independent
public accountants, a letter, dated the date of the Prospectus and a letter
dated the date of any Current Report on Form 8-K (the "Form 8-K") required
to be available to purchasers of the Offered Certificates on or before the
Closing Date, the scope of which is consistent with Exhibit V-A and Exhibit
V-B hereto.
B. Mutual Condition of the Company's and the Underwriter's Obligations. The
obligations of each of the Underwriter and the Company hereunder shall be
subject to the condition that the Offered Certificates shall have received
ratings of not less than the ratings set forth in the table below from
[___________] and [_____________________]:
--------------------------------------------------------------------------------
Rating Agency Rating Agency
------------------------------- ------------------------------
Class Class
--------------------------------------------------------------------------------
C. Conditions of the Company's Obligations. The obligations of the Company
hereunder shall be subject to the condition that in the event that the
Underwriter is required to deliver Evaluation Models-Materials or ABS Term
Sheets pursuant to Section 5 hereof:
(i) the Company shall have received the letter from independent
certified public accountants as provided in Section 5(b) hereof; and
(ii) the Company shall have received from the Underwriter, on or
before the required dates, the information required to be provided to the
Company pursuant to Section 5(a) or Section 5(c)(ii) hereof.
D. Notice of Failure of Conditions. If any of the conditions provided for
in this Section 10 shall not have been satisfied when and as required by this
Agreement, this Agreement may be terminated: (i) with respect to the conditions
set forth in Section 10A hereof, by the Underwriter by notifying the Company of
such termination in writing or by telegram at or prior to the Closing Date, but
the Underwriter shall be entitled to waive any of such conditions; (ii) with
respect to the conditions set forth in Section 10B hereof, by either party by
notifying the other of such termination in writing or by telegram at or prior to
the Closing Date; and (iii) with
26
respect to the conditions set forth in Section 10C hereof, by the Company by
notifying the Underwriter of such termination in writing or by telegram at or
prior to the Closing Date.
If any of the conditions provided for in this Section 10 shall not have
been satisfied on or before the Closing Date and the sale of the Offered
Certificates is nevertheless consummated as contemplated hereunder (except for
the performance of the condition), the party (or parties) hereto entitled to
terminate this Agreement pursuant to this Section 10D shall be deemed to have
waived its (or their) rights under this Section 10D.
11. Effective Date. This Agreement shall become effective as of the date
hereof upon the execution hereof by both the Company and the Underwriter.
12. Termination. In the event of any termination of this Agreement after it
becomes effective in accordance with Section 11 of this Agreement, pursuant to
the second paragraph of this Section 12 or pursuant to Section 10 hereof, there
shall be no liability of any party to this Agreement to any other party, other
than as provided in Sections 7, 8 and 13.
This Agreement may be terminated by the Underwriter after it becomes
effective by notice to the Company: (i) if at or prior to the Closing Date,
trading in securities on the New York Stock Exchange shall have been suspended
or minimum or maximum prices shall have been established on such exchange, or a
banking moratorium shall have been declared by New York or United States
authorities; (ii) if at or prior to the Closing Date, there shall have been an
outbreak of hostilities or other calamity or crisis which, in the judgment of
the Underwriter, makes it impracticable or inadvisable to offer or deliver the
Offered Certificates on the terms contemplated by the Prospectus; or (iii) if
there shall be any litigation, pending or threatened, which, in the judgment of
the Underwriter makes it impracticable or inadvisable to offer to deliver the
Offered Certificates on the terms contemplated by the Prospectus.
13. Reimbursement.
(a) Notwithstanding any other provisions hereof, if this Agreement is
terminated by the Underwriter under Section 10A of this Agreement, the
Company will bear and pay the expenses specified in Section 7 hereof and,
in addition to its obligations pursuant to Section 8 hereof, the Company
will reimburse the reasonable out-of-pocket expenses of the Underwriter
(including any fees and disbursements of counsel for the Underwriter)
incurred in connection with this Agreement and the proposed purchase of the
Certificates, and upon demand the Company will pay such amounts to the
Underwriter.
(b) Notwithstanding any other provision hereof, if this Agreement is
terminated by the Company or the Underwriter pursuant to Section 10B of
this Agreement, a mutual termination of this Agreement will be declared
and, other than the obligations set forth in Section 8 hereof, neither
party will have any further obligation to the other with respect to this
Agreement, including any responsibility for any expenses incurred by the
other party.
27
(c) If the Offered Certificates do not receive the ratings set forth
in Section 10B of this Agreement and neither party elects to terminate this
Agreement under Section 10D hereof, the Underwriter will pay all printing
costs and all other fees, costs and expenses related to a "sticker" to the
Prospectus disclosing the actual ratings of the Offered Certificates.
(d) Notwithstanding any other provisions hereof, if this Agreement is
terminated by the Company under Section 10C of this Agreement, the
Underwriter will reimburse the Company for its reasonable out-of-pocket
expenses (including, without limitation, any fees and disbursements of
counsel and all costs, fees and expenses which otherwise would have been
payable by the Company under Section 7 hereof) incurred in connection with
this Agreement and the proposed sale of the Certificates, and upon demand
the Underwriter will pay such amounts to the Company.
14. Notices. All communications hereunder shall be in writing and, if sent
to the Underwriter, shall be mailed, delivered or telegraphed and confirmed to
it at [_______], or, if sent to the Company, shall be mailed, delivered or
telegraphed and confirmed to it at Washington Mutual Legal Department, 0000
Xxxxx Xxxxxx, XXX 0000, Xxxxxxx, XX 00000.
15. Successors. This Agreement shall inure to the benefit of and be binding
upon the Underwriter, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person other than the persons mentioned in the preceding sentence any
legal or equitable right, remedy or claim under or in respect of this Agreement,
or any provision herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person; except that the
representations, warranties, covenants, agreements and indemnities of the
Company contained in this Agreement shall also be for the benefit of the
Controlling Person or persons, if any, and the indemnities of the Underwriter
shall also be for the benefit of each director of the Company, each of its
officers who has signed the Registration Statement and any Company Controlling
Person or persons.
16. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to its
conflict of laws principles.
This Agreement may be signed in various counterparts, which together shall
constitute one and the same Agreement.
28
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
[WaMu ASSET ACCEPTANCE CORP.]
----------------------------------------
By:
------------------------------------
Its:
-----------------------------------
Accepted and delivered as of
the above-mentioned date
[UNDERWRITER'S NAME]
----------------------------------------
By:
------------------------------------
Its:
-----------------------------------
Schedule 1
The purchase price for the Offered Certificates shall be the product of (i)
[__________]% (the "Purchase Price Percentage") and (ii) the aggregate of the
initial Class Principal Balances of the Offered Certificates. In addition to the
purchase price, the Underwriter shall remit interest to the Company on the
aggregate of the initial Class Principal Balances of the Offered Certificates at
the weighted average of the Pass-Through Rates for the Mortgage Loans from the
Cut-Off Date to, but not including, the Closing Date.
EXHIBIT I-A
LETTER REGARDING
COMPUTATIONAL MATERIALS
[The attached computational materials are delivered to WaMu Asset Acceptance
Corp. ("WaMu") by [underwriter] (the "Underwriter") pursuant to Section 5 of
the Underwriting Agreement (the "Underwriting Agreement") dated as of [________,
200_], between WaMu and the Underwriter. The Underwriter hereby represents that
the attached tables, schedules and information are a complete set of the final
Computational Materials (as defined in Section 5(a) of the Underwriting
Agreement), and are to be filed with the Securities and Exchange Commission in
connection with the offering of the WaMu Mortgage Pass-Through Certificates,
Series [_____].]
or
[[underwriter] (the "Underwriter") hereby represents that there are no
Computational Materials (as defined in Section 5(a) of the Underwriting
Agreement dated as of [________, 200_], between WaMu Asset Acceptance Corp.. and
the Underwriter) to be filed with the Securities and Exchange Commission in
connection with the offering of the WaMu Mortgage Pass-Through Certificates,
Series [_____].]
EXHIBIT I-B
LETTER REGARDING
ABS TERM SHEETS
[The attached ABS Term Sheets are delivered to WaMu Asset Acceptance Corp..
("WaMu") by [underwriter] (the "Underwriter") pursuant to Section 5 of the
Underwriting Agreement (the "Underwriting Agreement") dated as of [________,
200_], between WaMu and the Underwriter. The Underwriter hereby represents that
the attached ABS Term Sheets (as defined in Section 5(a) of the Underwriting
Agreement) are delivered in a timely manner pursuant to the Underwriting
Agreement, and are to be filed with the Securities and Exchange Commission in
connection with the offering of the WaMu Mortgage Pass-Through Certificates,
Series [____]]
or
[[underwriter] (the "Underwriter") hereby represents that no ABS Term Sheets (as
defined in Section 5(a) of the Underwriting Agreement dated as of [________,
200_], between WaMu Asset Acceptance Corp.. and the Underwriter) required to be
filed with the Commission were made available to any prospective investor in
written or electronic form in connection with the offering of the WaMu Mortgage
Pass-Through Certificates, Series [____]]
EXHIBIT I-C
LETTER REGARDING
INTEX MODELS
[The attached Intex Model source code is delivered to WaMu Asset Acceptance
Corp.. ("WaMu") by [underwriter] (the "Underwriter") pursuant to Section 5 of
the Underwriting Agreement (the "Underwriting Agreement") dated as of [________,
200_], between WaMu and the Underwriter. The Underwriter hereby represents that
the attached source code represents the source code for each Intex Model (as
defined in Section 5(a) of the Underwriting Agreement) that was made available
to any prospective investors with respect to the Offered Certificates, and is to
be filed with the Securities and Exchange Commission in connection with the
offering of the WaMu Mortgage Pass-Through Certificates, Series [_____].]
or
[[underwriter] (the "Underwriter") hereby represents that no Intex Models (as
defined in Section 5(a) of the Underwriting Agreement dated as of [________,
200_], between WaMu Asset Acceptance Corp.. and the Underwriter) were made
available to any prospective investor in connection with the offering of the
WaMu Mortgage Pass-Through Certificates, Series [_____].]
EXHIBIT I-D
LETTER REGARDING
BLOOMBERG MODELS
[The attached Bloomberg Materials are delivered to WaMu Asset Acceptance Corp.
("WaMu") by [underwriter] (the "Underwriter") pursuant to Section 5 of the
Underwriting Agreement (the "Underwriting Agreement") dated as of [________,
200_], between WaMu and the Underwriter. The Underwriter hereby represents that
the attached Bloomberg Materials represent the Bloomberg Materials related to
each Bloomberg Model (as defined in Section 5(a) of the Underwriting Agreement)
that was made available to any prospective investors with respect to the Offered
Certificates, and is to be filed with the Securities and Exchange Commission in
connection with the offering of the WaMu Mortgage Pass-Through Certificates,
Series [_____].]
or
[[underwriter] (the "Underwriter") hereby represents that no Bloomberg Models
(as defined in Section 5(a) of the Underwriting Agreement dated as of [________,
200_], between WaMu Asset Acceptance Corp.. and the Underwriter) were made
available to any prospective investor in connection with the offering of the
WaMu Mortgage Pass-Through Certificates, Series [_____].]
EXHIBIT II
OPINION OF SPECIAL COUNSEL
(XXXXXX, XXXXXXXXXX & XXXXXXXXX LLP)
(i) The Certificates and the Pooling Agreement conform, in all material
respects, to the descriptions thereof contained in the Prospectus;
(ii) The Pooling Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended, and the trust created by the Pooling
Agreement is not required to be registered under the Investment Company Act of
1940, as amended;
(iii) The Registration Statement has become effective under the 1933 Act
and, to our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose is
pending or threatened by the Commission;
(iv) At the time the Registration Statement became effective it complied as
to form in all material respects with the requirements of the 1933 Act and the
rules and regulations thereunder (it being understood that we have not been
requested to and do not give any opinion or make any comment with respect to the
financial statements, schedules and other financial and statistical information
contained therein);
(v) The Prospectus and each amendment thereof or supplement thereto, as of
its respective date, complied as to form in all material respects with the
requirements of the 1933 Act and the rules and regulations thereunder (it being
understood that we have not been requested to and do not give any opinion or
make any comment with respect to the financial statements, schedules and other
financial and statistical information contained therein);
(vi) The statements in the Prospectus under the headings "Certain Legal
Investment Aspects," "ERISA Considerations" and "Certain Federal Income Tax
Consequences," to the extent that they constitute matters of law or legal
conclusions, are correct in all material respects;
(vii) Assuming that the Offered Certificates (other than the Class [_____]
Certificates) are rated at the time of issuance in one of the two highest rating
categories by a nationally-recognized statistical rating organization, the
Offered Certificates (other than the Class [_____] Certificates) constitute
"mortgage related securities" for purposes of the Secondary Mortgage Market
Enhancement Act of 1984;
(viii) [Under existing laws and assuming compliance with all of the
provisions of the Pooling Agreement, REMIC I and REMIC II (each, as defined in
the Pooling Agreement) will each be treated as a real estate mortgage investment
conduit (a "REMIC") as defined by Section 860D of the Internal Revenue Code of
1986, as amended (the "Code"), and the Certificates (other than the Class R
Certificates) will represent ownership of "regular interests" in REMIC II,
as the term "regular interests" is defined in the Code. The Class R Certificates
will represent ownership of the sole "class of residual interests" in each of
REMIC I and REMIC II, within the meaning of Section 860D of the Code. However,
continuation of status as a REMIC may entail compliance with statutory changes
in the future and regulations not yet issued];
(ix) WaMu Asset Acceptance Corp. ("WaMu") has been duly incorporated and is
validly existing and in good standing under the laws of the State of Delaware
and its Certificate of Incorporation is in full force and effect. WaMu has all
requisite corporate power and corporate authority to enter into and perform its
obligations under the Underwriting Agreement and the Pooling Agreement;
(x) Each of the Underwriting Agreement and the Pooling Agreement has been
duly authorized, executed and delivered by XxXx and, assuming the due
authorization, execution and delivery thereof by the other parties thereto, the
Underwriting Agreement constitutes a valid and legally binding obligation of
WaMu, enforceable against WaMu in accordance with its terms;
(xi) Neither the performance by WaMu of its obligations under the
Underwriting Agreement or the Pooling Agreement nor the issuance and sale by
WaMu of the Offered Certificates will (a) result in a breach or violation of, or
constitute a default under, WaMu's Certificate of Incorporation or By-laws or
any term of any agreement or instrument to which WaMu is a party or by which it
is bound that is identified in the Officer's Certificate, (b) to our knowledge,
violate any order that specifically names WaMu and is issued by any court,
regulatory body, administrative agency or governmental body having jurisdiction
over WaMu or any of its properties or (c) to our knowledge, violate any statute,
rule or regulation applicable to WaMu; and
(xii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by WaMu of the
transactions contemplated by the Underwriting Agreement or the Pooling
Agreement, except such as have been obtained and such as may be required under
the blue sky laws of any jurisdiction.
In addition, we have participated in conferences with your representatives
and with representatives of WaMu concerning the Registration Statement and the
Prospectus and have considered the matters required to be stated therein and the
statements contained therein, although we have not independently verified the
accuracy, completeness or fairness of such statements (except as described in
paragraphs (i) and (vi) above). Based upon and subject to the foregoing, nothing
has come to our attention to cause us to believe that the Registration
Statement, as of the date of its effectiveness, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus as of its date and as of the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a 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 (it being understood that we have not been requested to and do not
make any comment in this paragraph with respect to the financial statements,
schedules and other financial and statistical information contained in the
Registration Statement or the Prospectus).
This opinion letter is solely for your benefit and may not be relied upon
or used by, circulated, quoted or referred to, nor may copies hereof be
delivered to, any other person without our prior written approval. We disclaim
any obligation to update this opinion letter for events occurring or coming to
our attention after the date hereof.
EXHIBIT III
OPINION OF SPECIAL COUNSEL
(i) The Trust has been duly formed and is validly existing as a statutory
trust under Delaware Statutory Trust Act, 12 Del. C. Sec. 3801, et seq. (the
"Act"), and has the power and authority under the Pooling Agreement and the Act
to issue the Certificates;
(ii) The Certificates have been duly authorized by the Trust and, when duly
executed and authenticated by the Trustee and delivered to and paid for by the
purchasers thereof in accordance with the Pooling Agreement, will be validly
issued by the Trust and entitled to the benefits of the Pooling Agreement; and
(iii) The Pooling Agreement is a legal, valid and binding obligation of
WaMu, the Trustee and the Delaware Trustee, enforceable against WaMu, the
Trustee and the Delaware Trustee in accordance with its terms.
The foregoing opinions regarding enforceability are subject to (i)
applicable bankruptcy, insolvency, moratorium, receivership, reorganization,
fraudulent transfer and similar laws relating to and affecting the rights and
remedies of creditors generally, (ii) principles of equity, including applicable
law relating to fiduciary duties (regardless of whether considered and applied
in a proceeding in equity or at law), and (iii) applicable public policy with
respect to the enforceability of provisions relating to indemnification or
contribution.
EXHIBIT IV
OPINION OF TRUSTEE COUNSEL
(1) The Trustee has been legally organized under the laws of the United
States and, based upon a certificate of good standing issued by the Comptroller
of the Currency, is validly existing as a national banking association in good
standing under the laws of the United States, and has the requisite entity power
and authority to execute and deliver each Agreement and to perform its
obligations thereunder.
(2) With respect to the Trustee, the performance of its obligations under
each of the Agreements to which it is a party and the consummation of the
transactions contemplated thereby do not require any consent, approval,
authorization or order of, filing with or notice to any United States federal or
State of New York court, agency or other governmental body under any United
States federal or New York statute or regulation applicable to the Agreements,
except such as may be required under the securities laws of any State of the
United States or such as have been obtained, effected or given.
(3) With respect to the Trustee, the performance of its obligations under
each of the Agreements to which it is a party and the consummation of the
transactions contemplated thereby will not result in: (i) any breach or
violation of its certificate of incorporation or bylaws or (ii) to our
knowledge, any breach, violation or acceleration of or default under any
indenture or other material agreement or instrument to which it is a party or by
which it is bound or any breach or violation of any United States federal or
State of New York statute or regulation or, to our knowledge, any order of any
United States federal or State of New York court, agency or other governmental
body.
(4) With respect to the Trustee, to our knowledge, there is no legal
action, suit, proceeding or investigation before any court, agency or other
governmental body pending or threatened against it which, either in one instance
or in the aggregate, draws into question the validity of, seeks to prevent the
consummation of any of the transactions contemplated by or would impair
materially its ability to perform its obligations under any of the Agreements to
which it is a party.
(5) Each of the Agreements has been duly authorized, executed and delivered
by the Trustee
(6) Each of the Agreements to which the Trustee is a party (to the extent
that the laws of the State of New York are designated therein as the governing
law thereof), assuming the necessary authorization, execution and delivery
thereof by the other parties thereto (other than the Trustee), is a valid and
legally binding agreement under the laws of the State of New York, enforceable
thereunder in accordance in accordance with its terms against the Trustee.
(7) The Certificates have been duly authenticated and delivered by the
Trustee in accordance with the Pooling Agreement.
(8) Assuming that each REMIC qualifies as a REMIC for federal income tax
purposes and assuming compliance with the provisions of the Pooling and
Servicing Agreement, for City and State of New York income and corporation
franchise tax purposes, each REMIC will be classified as a REMIC and not as a
corporation, partnership or trust, in conformity with the federal income tax
treatment of a REMIC. Accordingly, each REMIC will be exempt from all City and
State of New York taxation imposed on its income, franchise or capital stock,
and its assets will not be included in the calculation of any franchise tax
liability.
This opinion is rendered for the sole benefit of each addressee hereof with
respect to the matters specifically addressed herein, and no other person or
entity is entitled to rely herein.
EXHIBIT V-A
LETTER OF INDEPENDENT PUBLIC ACCOUNTANTS
EXHIBIT V-B
LETTER OF INDEPENDENT PUBLIC ACCOUNTANTS
