Additional Written Communications The Company (including its agents and representatives, other than the Initial Purchasers in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Written Communication”) other than (i) the Preliminary Offering Memorandum, (ii) the Offering Memorandum, (iii) the documents listed on Annex A hereto, including a term sheet substantially in the form of Annex B hereto, which constitute part of the Time of Sale Information, and (iv) any electronic road show or other written communications, in each case used in accordance with Section 4(c). Each such Issuer Written Communication, when taken together with the Time of Sale Information, did not at the Time of Sale, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in each such Issuer Written Communication in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Company in writing by such Initial Purchaser through the Representative expressly for use in any Issuer Written Communication.
Offering Communications (a) Other than the Preliminary Prospectus, the Prospectus and the Ratings Issuer Free Writing Prospectus, each Underwriter severally represents, warrants and agrees with the Company, the Issuer and the Seller that it has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, including, but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Company, the Issuer and the Seller; provided, however, each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus or the Prospectus, (ii) information relating to the CUSIPs, yield, benchmark, and trade date of the Notes and (iii) a column or other entry showing the status of the subscriptions for the Notes and/or expected pricing parameters of the Notes (each such written communication, an “Underwriter Free Writing Prospectus”); provided, that no such Underwriter Free Writing Prospectus would be required to be filed with the Commission.
(b) Each Underwriter severally represents, warrants and agrees with the Company, the Issuer and the Seller that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Notes, include any untrue statement of a material fact or omit any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were (i) made in reliance upon and in conformity with any written information furnished to the related Underwriter by the Company, the Issuer or the Seller expressly for use therein or (ii) as a result of any inaccurate information (including as a result of any omission therein) in the Preliminary Prospectus, the Prospectus or the Ratings Issuer Free Writing Prospectus (solely when taken together with the Preliminary Prospectus or the Prospectus, as applicable), which information was not corrected by information subsequently provided by the Company, the Issuer or the Seller to the related Underwriter prior to the time of use of such Underwriter Free Writing Prospectus;
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with Rule 433(c)(2)(i) of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act; and
(iii) each Underwriter Free Writing Prospectus prepared by it shall be delivered to the Company, the Issuer and the Seller no later than the Business Day prior to the required filing date.
(c) Each Underwriter severally represents and agrees that (a) it has not entered, and will not enter, into any contract of sale for the Notes (subject to the proviso to clause (ii) below) until at least the later of (i) three business days after the original Preliminary Prospectus for the Notes has been initially filed by the Company with the Commission (as determined by reference to the “Filing Date” according to the “Filing Detail” webpage for the Company related to such filing, as made available on the Commission’s website) and (ii) 48 hours after any supplement to the Preliminary Prospectus that reflects a material change from the information contained in the Preliminary Prospectus has been filed by the Company with the Commission (as determined by reference to the time such filing was “Accepted” according to the “Filing Detail” webpage for the Company related to such filing, as made available on the Commission’s website); provided, however, that in the case of any such contract of sale entered into before the filing of a supplement as referred to in this clause (ii), it will not consummate such transaction without entering into a new contract of sale in accordance with this clause (ii); (b) that it did not enter into any contract of sale for any Notes prior to the Time of Sale; and (c) that it will, at any time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Notes, (A) convey to each investor to whom Notes are sold by it during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Company), at or prior to the applicable time of any such contract of sale with respect to such investor, the Preliminary Prospectus and (B) comply with Rule 173 of the Act, including, but not limited to (I) by delivering to each investor to whom Notes are sold by it no later than two Business Days following the completion of such sale (i.e., the date of settlement), a copy of the final Prospectus or a notice to the effect that such sale was made pursuant to the Registration Statement and (II) if only a notice has been sent pursuant to the foregoing clause (I), by delivering to any investor to whom Notes are sold by it, upon request of such investor, a copy of the final Prospectus.
Offering Communications; Free Writing Prospectuses (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Act, the Underwriter shall not convey or deliver any written communication, as defined in Rule 405 under the Act (a "Written Communication"), to any person in connection with the initial offering of the Certificates, unless such Written Communication (i) is made in reliance on and in conformity with Rule 134 under the Act, (ii) constitutes a prospectus satisfying the requirements of Rule 430B under the Act or (iii) constitutes a "free writing prospectus," as defined in Rule 405 under the Act (a "Free Writing Prospectus"). Notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of WFASC, which may be withheld in its sole discretion, the Underwriter shall not convey or deliver in connection with the initial offering of the Certificates, any Free Writing Prospectus unless such Free Writing Prospectus contains only ABS Informational and Computational Material, as defined in Item 1101(a) of Regulation AB under the Act ("ABS Informational and Computational Material"); provided however, that any such Free Writing Prospectus may also contain a column showing the status of subscriptions for and allotments of the Certificates. The Underwriter shall not convey or deliver any ABS Informational and Computational Material in reliance on Rules 167 and 426 under the Act. Any Free Writing Prospectus prepared by or on behalf of the Underwriter is referred to as an "Underwriter Free Writing Prospectus."
(i) WFASC shall deliver to the Underwriter, not later than two business days following the Bid Date, a Free Writing Prospectus which contains general information about the offering, including the basic senior/subordinate structure of the Certificates (excluding the subdivision of the senior classes into tranches), the subordination percentage for the senior Certificates and the publicly offered subordinated Certificates, to the extent known by WFASC, the expected parameters of the Mortgage Pool, risk factors applicable to Mortgage Loans of the type included in the Mortgage Pool, the identity of and material information about transaction parties known to WFASC, the material tax and ERISA treatment of the Certificates and whether the Certificates will be "mortgage related securities" as defined in Section 3(a)(41) of the Exchange Act, and which contains a hyperlink to the Base Prospectus most recently filed by WFASC with the Commission and a hyperlink to the portion of WFASC's static pool website containing static pool information (such information, the "Applicable Static Pool Information") with respect to the series of Certificates (as determined by WFASC) (the "Issuer Free Writing Prospectus").
(ii) WFASC will endeavor to file the Issuer Free Writing Prospectus with the Commission not later than two business days following the Bid Date, and the Underwriter shall not convey or deliver the Issuer Free Writing Prospectus to any person or entity until WFASC has notified the Underwriter that it has completed such filing. Thereafter, the Issuer Free Writing Prospectus may be used by the Underwriter solely in connection with the marketing of the Certificates to institutional investors; provided however, the Underwriter shall not enter into any "contract of sale" with any investor, within the meaning of Rule 159 under the Act (a "Contract of Sale"), with respect to any Certificates, unless prior to the Time of Sale to each investor in the Certificates, the Underwriter shall have (A) delivered to such investor the Issuer Free Writing Prospectus, together with any amendment or supplement thereto supplied by WFASC to the Underwriter sufficiently prior to the Time of Sale to such investor to reasonably permit delivery thereof by the Underwriter to such investor and (B) provided to such investor such of the Supplemental Information described in Exhibit B hereto that is then known or available to the Underwriter as the Underwriter, in the exercise of its judgment, shall have concluded is required to make the Issuer Free Writing Prospectus, when considered in conjunction with the Time of Sale Information, not misleading.
(i) The Underwriter shall deliver to WFASC each Underwriter Free Writing Prospectus that contains any "issuer information," as defined in Rule 433(h) under the Act and footnote 271 of Securities Act Release No. 33-8591 ("Issuer Information") if such Underwriter Free Writing Prospectus or the portion thereof consisting of Issuer Information is required to be filed by WFASC with the Commission pursuant to Rule 433 under the Act ("Rule 433").
(ii) Any Underwriter Free Writing Prospectus that is required to be delivered pursuant to Section 9(c)(i) shall be delivered by the Underwriter to WFASC no later than two business days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Act; provided however, that if such Underwriter Free Writing Prospectus contains any information other than ABS Informational and Computational Material, it shall instead be delivered by the Underwriter to WFASC not later than two business days prior to the date of first use of such Free Writing Prospectus.
(iii) Not later than one business day after the Underwriter has determined the final structure of all classes of Certificates, and in no event later than the fourth business day preceding the due date for filing the final Prospectus pursuant to Rule 424(b) under the Act, the Underwriter shall prepare and deliver to WFASC an Underwriter Free Writing Prospectus (which may consist of a term sheet) containing a description of the final structure of the Certificates, irrespective of whether such Underwriter Free Writing Prospectus has been or will be conveyed or delivered by the Underwriter to any investor in the Certificates.
(iv) To facilitate the filing thereof by WFASC, the Underwriter shall provide the Issuer Information contained in any Underwriter Free Writing Prospectus that is required to be delivered to WFASC pursuant to this Section 9(c) in a separate document from the portion of such Free Writing Prospectus which contains information other than Issuer Information.
(d) The Underwriter represents and warrants to WFASC that the Underwriter Free Writing Prospectuses required to be furnished to WFASC by the Underwriter pursuant to Section 9(c) will constitute all Underwriter Free Writing Prospectuses of the type described therein that were furnished to prospective investors by the Underwriter in connection with its offer and sale of the Certificates.
(e) The Underwriter represents and warrants to WFASC that each Underwriter Free Writing Prospectus provided by it to an investor in the Certificates did not, as of the Time of Sale to any prospective investor to which such Underwriter Free Writing Prospectus was conveyed, include any untrue statement of a material fact or omit any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading when considered in conjunction with the Time of Sale Information; provided however, that the Underwriter makes no representation or warranty to the extent such misstatements or omissions were the result of any misstatements in or omissions from the Mortgage Loan Data supplied by WFASC to the Underwriter which misstatements or omissions were not corrected by information subsequently supplied by WFASC to the Underwriter sufficiently prior to the Time of Sale to the applicable investor to reasonably permit the delivery thereof by the Underwriter to such investor or, to the extent that such misstatements are a substantial restatement in all material respects of a misstatement made in the Issuer Free Writing Prospectus or such omissions are the result of omission from the Issuer Free Writing Prospectus (other than omissions which are the subject of Section 7(b)(B)) which misstatements or omissions were not corrected by information subsequently supplied by WFASC sufficiently prior to the Time of Sale to the applicable investor to reasonably permit delivery thereof by the Underwriter to such investor.
(f) Unless WFASC determines that such filing is not required under Rule 433, WFASC agrees to file with the Commission, within the applicable time periods specified in Rule 433, the following:
(i) Any Issuer Free Writing Prospectus; and
(ii) Any Underwriter Free Writing Prospectus delivered by the Underwriter to WFASC pursuant to Section 9(c) or, at the election of WFASC, the portion of such Underwriter Free Writing Prospectus which consists of Issuer Information.
(g) The Underwriter shall file with the Commission, within the applicable time period specified in Rule 433, any Free Writing Prospectus that is distributed by or on behalf of the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination. Any access codes or passwords needed by the Underwriter to complete the filing shall be provided by WFASC.
(h) WFASC and the Underwriter each agrees that any Free Writing Prospectuses prepared by it shall contain substantially the following legend: The depositor has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the depositor and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, ▇▇▇ ▇ssuer, any underwriter o▇ ▇▇▇ ▇▇▇▇▇r participating in the offering will arrange to send you the prospectus if you request it by calling toll-free 1-8[xx-xxx-xxxx]
(i) The Underwriter agrees to comply with the requirements of Rule 433 under the Act applicable to the Underwriter including, without limitation, the record retention requirements therein.
(i) Consistent with the manner in which written records are maintained for its own purposes, the Underwriter agrees to keep and maintain, for a period of not less than three years following the date of initial issuance of the Certificates, written records documenting, as to each investor in Certificates, the Time of Sale and the date on which each Issuer Free Writing Prospectus and each Underwriter Free Writing Prospectus was conveyed to such investor.
(ii) In the event of any litigation or written notice of potential litigation against WFASC or any of its affiliates with respect to the Certificates, the Underwriter shall, upon the request of WFASC, make available to WFASC copies of all records required to be maintained by it pursuant to Section 9(j)(i) and any Free Writing Prospectus required to be retained by it pursuant to Section 9(i).
(i) The Underwriter will not enter into, and the Underwriter will obligate in writing each dealer to whom it sells any Certificates (which obligation may be in the form of a trade stipulation and which, in any event, shall name WFASC as an intended third party beneficiary) not to enter into, any Contract of Sale with respect to the Certificates with any investor other than an institutional investor, unless the Underwriter or such dealer has delivered to such investor a copy of the final Prospectus.
(ii) The Underwriter shall not enter into any Contract of Sale with respect to the Certificates with any institutional investor unless the Underwriter complies with the prospectus delivery and notice requirements of Rules 172 and 173 under the Act.
(i) In the event that WFASC becomes aware that the Issuer Free Writing Prospectus contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading (other than as the result of the exclusion from the Issuer Free Writing Prospectus of information of the type specified in Exhibit B hereto as Supplemental Information) (such Free Writing Prospectus, a "Defective Issuer Free Writing Prospectus"), WFASC shall notify the Underwriter thereof within one business day after discovery and WFASC shall prepare and deliver to the Underwriter a Free Writing Prospectus which corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a "Corrected Issuer Free Writing Prospectus").
(ii) In the event that the Underwriter becomes aware that, as of the applicable Time of Sale to an investor in the Certificates, any Underwriter Free Writing Prospectus prepared by or on behalf of the Underwriter and delivered to such investor contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading, when considered in conjunction with the Time of Sale Information (such Free Writing Prospectus, a "Defective Underwriter Free Writing Prospectus and, together with a Defective Issuer Free Writing Prospectus, a "Defective Free Writing Prospectus"), the Underwriter shall notify WFASC thereof within one business day after discovery.
(iii) The Underwriter shall, if requested by WFASC:
(A) prepare a Free Writing Prospectus which corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a "Corrected Underwriter Free Writing Prospectus" and, together with a Corrected Issuer Free Writing Prospectus, a "Corrected Free Writing Prospectus");
(B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a Contract of Sale;
(C) provide such investor with the following:
(1) adequate disclosure of the contractual arrangement;
(2) adequate disclosure of the investor's rights under the existing Contract of Sale at the time termination is sought;
(3) adequate disclosure of the new information that is necessary to correct the misstatements or omissions in the information given at the time of the original Contract of Sale; and
(4) a meaningful ability to elect to terminate or not terminate the prior Contract of Sale and to elect to enter into or not enter into a new Contract of Sale; and
(D) comply with any other requirements for reformation of the original Contract of Sale described in Section IV.2.c of Securities Act Release Act 33-8591.
(iv) In the event that the Defective Free Writing Prospectus was an Issuer Free Writing Prospectus, and the Underwriter shall in good faith incur any reasonable costs in connection with the reformation or termination of the Contract of Sale, WFASC agrees to reimburse the Underwriter for such costs promptly following presentation of reasonably detailed documentation of such costs to WFASC. The Underwriter agrees to use best efforts to mitigate such costs.
(m) The Underwriter covenants with WFASC that it will make available to WFASC, upon reasonable prior notice and at reasonable times during normal business hours, such personnel as are familiar with the Underwriter's compliance procedures for the purpose of answering questions concerning the Underwriter's practices and procedures for the preparation and dissemination of Written Communications concerning the Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(n) The Underwriter covenants with WFASC that after the final Prospectus is available, the Underwriter shall not distribute any Written Communication concerning the Certificates to a prospective investor unless such communication is preceded or accompanied by the final Prospectus. The foregoing covenant shall not apply to any secondary market offers or sales of the Certificates by the Underwriter.
(o) The Underwriter agrees, upon request of WFASC, to provide to WFASC any information within the control of the Underwriter which WFASC may reasonably request to enable WFASC to timely and accurately meet its disclosure and reporting obligations under the Act and the Exchange Act.
(p) The Underwriter agrees to cause any credit enhancement provider, derivative counterparty, special servicer or credit risk manager
