EXHIBIT 1.1
XXXXX FARGO ASSET SECURITIES CORPORATION
Home Equity Asset-Backed Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
______ __, 20__
[Underwriter]
Ladies and Gentlemen:
Xxxxx Fargo Asset Securities Corporation, a Delaware corporation
("WFASCOR"), proposes to issue and sell from time to time its Home Equity
Asset-Backed Certificates in various series, each series of which may be divided
into classes and each class of which may be divided into subclasses, in one or
more offerings on terms determined at the time of sale. One or more series of
Home Equity Asset-Backed Certificates may be offered through you, as underwriter
(the "Underwriter"). Whenever WFASCOR determines to make an offering of a series
of its Home Equity Asset-Backed Certificates through the Underwriter, WFASCOR
and Xxxxx Fargo Home Mortgage, Inc., a California Corporation ("Xxxxx Fargo
Mortgage"), will enter into an agreement (the "Terms Agreement") with the
Underwriter, in substantially the form attached hereto as Exhibit A, providing
for the sale of such series of Home Equity Asset-Backed Certificates to the
Underwriter. WFASCOR is a wholly-owned subsidiary of Xxxxx Fargo Mortgage. The
Home Equity Asset-Backed Certificates of the series, classes and subclasses to
be sold in each offering to the Underwriter under this Underwriting Agreement,
as supplemented by the applicable Terms Agreement, are hereinafter referred to
as the "Certificates". The Certificates will have the characteristics set forth
in the applicable Terms Agreement and will evidence the ownership interests in a
trust consisting of mortgage loans acquired by WFASCOR (the "Mortgage Loans")
and related property (collectively, the "Trust Fund"). The Mortgage Loans will
be of the type described in, and will have the characteristics and aggregate
principal balance set forth in, the Prospectus Supplement (as hereinafter
defined).
The Certificates will be issued under a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of the close of
business on the date specified in the applicable Terms Agreement, by and among
WFASCOR, as depositor, Xxxxx Fargo Mortgage, as servicer (in such capacity, the
"Servicer"), Xxxxx Fargo Bank, National Association, as securities administrator
("Xxxxx Fargo Bank") and the trustee identified in the applicable Terms
Agreement, as trustee (the "Trustee"). The Certificates will be issued in
denominations contained in the applicable Terms Agreement and will have the
terms set forth in the Prospectus Supplement. The Certificates will conform in
all material respects to the description thereof contained in the applicable
Terms Agreement and the Prospectus Supplement. The Terms Agreement may take the
form of an exchange of any standard form of written communication among the
Underwriter, WFASCOR and Xxxxx Fargo Mortgage. Each offering of Home Equity
Asset-Backed Certificates under this Underwriting Agreement will be governed by
this Underwriting Agreement, as supplemented by the applicable Terms Agreement.
This Underwriting Agreement, as supplemented by the applicable Terms Agreement,
is referred to herein as this "Agreement."
1. Representations and Warranties. (a) WFASCOR represents and
warrants to, and agrees with, the Underwriter as of the date of the applicable
Terms Agreement that:
(i) A registration statement (File No. 333-[_____]), including
a prospectus, has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective under the
Securities Act of 1933, as amended (the "Act"), and no stop order
suspending the effectiveness of such registration statement has been
issued and no proceedings for that purpose have been initiated or to
WFASCOR's knowledge threatened by the Commission; and the prospectus
in the form in which it will be used in connection with the offering
of the Certificates is proposed to be supplemented by a prospectus
supplement relating to the Certificates and, as so supplemented, to
be filed with the Commission pursuant to Rule 424 under the Act.
(Such registration statement, as amended to the date of the
applicable Terms Agreement, excluding for purposes of this Agreement
any information contained in any Form 8-K filed and incorporated by
reference therein pursuant to Section 9 hereof or pursuant to any
other underwriting agreement entered into by WFASCOR, is hereinafter
referred to as the "Registration Statement"; such prospectus
supplement, as first filed with the Commission, is hereinafter
referred to as the "Prospectus Supplement"; and such prospectus, in
the form in which it will first be filed with the Commission in
connection with the offering of the Certificates, as supplemented by
the Prospectus Supplement, is hereinafter referred to as the
"Prospectus"; all references herein to the Prospectus or to the
Prospectus, as revised, amended, or supplemented, shall be deemed to
exclude any information contained in any Form 8-K filed and
incorporated by reference therein pursuant to Section 9 hereof or
pursuant to any other underwriting agreement entered into by
WFASCOR).
(ii) The Registration Statement and the Prospectus, as of the
date of the Prospectus Supplement, will conform, and the
Registration Statement and the Prospectus, as revised, amended or
supplemented and filed with the Commission prior to the termination
of the offering of the Certificates, as of their respective
effective or issue dates, will conform in all material respects to
the requirements of the Act and the rules and regulations of the
Commission thereunder applicable to such documents as of such
respective dates, and the Registration Statement and the Prospectus,
as revised, amended or supplemented and filed with the Commission as
of the Closing Date, will conform in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder applicable to such documents; and the
Registration Statement and the Prospectus, as of the date of the
Prospectus Supplement, will not include any untrue statement of a
material fact or will not omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and, in the case of the Prospectus, as revised, amended
or supplemented and filed prior to the Closing Date, as of the
Closing Date, will not include any untrue statement of a material
fact or will not omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that WFASCOR makes no representations, warranties
or agreements (i) as to the information contained in or omitted from
the Prospectus or any revision or amendment thereof or supplement
thereto in reliance upon and in conformity with information
furnished in writing to WFASCOR by or on behalf of the Underwriter
specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement
thereto or (ii) based on the failure by the Underwriter to deliver
in a timely manner any information required to be filed by WFASCOR
pursuant to Section 9 or as to any untrue statement or alleged
untrue statement of a material fact contained in such information,
or an omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, when considered in conjunction with the Prospectus, and in
the light of the circumstances under which they were made, not
misleading, except to the extent that such misstatements are the
result of inaccurate information with respect to the Mortgage Loans
supplied by WFASCOR which was not corrected by information
subsequently supplied by WFASCOR to the Underwriter at any time
prior to the earlier of (i) the written confirmation of a sale of
the Certificates, which sale results in the loss, claim, damage or
liability arising out of or based upon such misstatement, and (ii)
the 90th day following the filing of the Prospectus, as amended or
supplemented, with the Commission.
(iii) Each of the Certificates will conform in all material
respects to the description thereof contained in the Prospectus, and
each of the Certificates, when validly authenticated, issued and
delivered in accordance with the Pooling and Servicing Agreement,
will be duly and validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement, and immediately
prior to the delivery of the Certificates to the Underwriter,
WFASCOR will own the Certificates, and upon such delivery the
Underwriter will acquire title thereto, free and clear of any lien,
pledge, encumbrance or other security interest other than one
created or granted by the Underwriter or permitted by the Pooling
and Servicing Agreement.
(iv) This Agreement has been duly authorized, executed and
delivered by WFASCOR and, as of the Closing Date, the Pooling and
Servicing Agreement will have been duly authorized, executed and
delivered by WFASCOR and will conform in all material respects to
the description thereof contained in the Prospectus and, assuming
the valid execution thereof by the Trustee, Xxxxx Fargo Bank and
Xxxxx Fargo Mortgage, the Pooling and Servicing Agreement will
constitute a valid and binding agreement of WFASCOR enforceable in
accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or
affecting the enforcement of creditors' rights and by general equity
principles.
(v) WFASCOR has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own its properties
and conduct its business as described in the Prospectus and to enter
into and perform its obligations under the Pooling and Servicing
Agreement and this Agreement.
(vi) Neither the issuance or delivery of the Certificates, nor
the consummation of any other of the transactions contemplated
herein, nor compliance with the provisions of the Pooling and
Servicing Agreement or this Agreement, will conflict with or result
in the breach of any material term or provision of the certificate
of incorporation or bylaws of WFASCOR, and WFASCOR is not in breach
or violation of or in default (nor has an event occurred which with
notice or lapse of time or both would constitute a default) under
the terms of (i) any indenture, contract, lease, mortgage, deed of
trust, note agreement or other evidence of indebtedness or other
agreement, obligation or instrument to which WFASCOR is a party or
by which it or its properties are bound, or (ii) any law, decree,
order, rule or regulation applicable to WFASCOR of any court or
supervisory, regulatory, administrative or governmental agency, body
or authority, or arbitrator having jurisdiction over WFASCOR, or its
properties, the default in or the breach or violation of which would
have a material adverse effect on WFASCOR or the ability of WFASCOR
to perform its obligations under the Pooling and Servicing
Agreement; and neither the delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein,
nor the compliance with the provisions of the Pooling and Servicing
Agreement or this Agreement will result in such a breach, violation
or default which would have such a material adverse effect.
(vii) No filing or registration with, notice to, or consent,
approval, authorization or order or other action of, any court or
governmental authority or agency is required for the consummation by
WFASCOR of the transactions contemplated by this Agreement or the
Pooling and Servicing Agreement (other than as required under state
securities laws or Blue Sky laws, as to which no representations and
warranties are made by WFASCOR), except such as have been, or will
have been prior to the Closing Date, obtained under the Act, and
such recordations of the assignment of the Mortgage Loans to the
Trustee pursuant to the Pooling and Servicing Agreement that have
not yet been completed.
(viii) There is no action, suit or proceeding before or by any
court, administrative or governmental agency, or other tribunal,
domestic or foreign, now pending to which WFASCOR is a party, or to
the best of WFASCOR's knowledge threatened against WFASCOR, which
could reasonably result individually or in the aggregate in any
material adverse change in the condition (financial or otherwise),
earnings, affairs, regulatory situation or business prospects of
WFASCOR or could reasonably interfere with or materially and
adversely affect the consummation of the transactions contemplated
herein.
(ix) At the Closing Date the representations and warranties
made by WFASCOR in the Pooling and Servicing Agreement will be true
and correct in all material respects as of the date made.
(x) At the time of execution and delivery of the Pooling and
Servicing Agreement, WFASCOR will own the mortgage notes (the
"Mortgage Notes") being transferred to the Trust Fund pursuant
thereto, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively,
"Liens"), except to the extent permitted in the Pooling and
Servicing Agreement, and will not have assigned to any person other
than the Trust Fund any of its right, title or interest in the
Mortgage Notes. WFASCOR will have the power and authority to
transfer the Mortgage Notes to the Trust Fund and to transfer the
Certificates to the Underwriter, and, upon execution and delivery to
the Trustee of the Pooling and Servicing Agreement, payment by the
Underwriter for the Certificates, and delivery to the Underwriter of
the Certificates, the Trust Fund will own the Mortgage Notes and the
Underwriter will acquire title to the Certificates, in each case
free of Liens except to the extent permitted by the Pooling and
Servicing Agreement.
(xi) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this
Agreement, the Pooling and Servicing Agreement and the Certificates
have been or will be paid by WFASCOR at or prior to the Closing
Date, except for fees for recording assignments of mortgage loans to
the Trustee required by the Pooling and Servicing Agreement that
have not yet been completed, which fees will be paid by WFASCOR in
accordance with the Pooling and Servicing Agreement.
(xii) The transfer of the Mortgage Loans and the related
assets to the Trust Fund at the Closing Date will be treated by
WFASCOR for financial accounting and reporting purposes as a sale of
assets and not as a pledge of assets to secure debt.
(b) Xxxxx Fargo Mortgage represents and warrants to, and agrees
with, the Underwriter as of the date of the applicable Terms Agreement that:
(i) Xxxxx Fargo Mortgage has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of California with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement.
(ii) The execution and delivery by Xxxxx Fargo Mortgage of
this Agreement are within the corporate power of Xxxxx Fargo
Mortgage and have been duly authorized by all necessary corporate
action on the part of Xxxxx Fargo Mortgage.
(iii) Neither the execution and delivery of this Agreement,
nor the consummation by Xxxxx Fargo Mortgage of any other of the
transactions contemplated herein, nor compliance with the provisions
of this Agreement, will conflict with or result in the breach of any
material term or provision of the certificate of incorporation or
bylaws of Xxxxx Fargo Mortgage.
(iv) This Agreement has been duly authorized, executed and
delivered by Xxxxx Fargo Mortgage.
2. Purchase Price. The purchase price at which the Underwriter will
purchase the Certificates shall be the aggregate purchase price set forth in the
applicable Terms Agreement.
3. Delivery and Payment. The Certificates shall be delivered at the
office, on the date and at the time specified in the applicable Terms Agreement,
which place, date and time may be changed by agreement between the Underwriter
and WFASCOR (such date and time of delivery of and payment for the Certificates
being hereinafter referred to as the "Closing Date"). Delivery of the
Certificates shall be made to the Underwriter against payment by the Underwriter
of the purchase price therefor to or upon the order of WFASCOR in same-day
funds. The Certificates shall be registered in such names and in such
denominations as the Underwriter may have requested not less than two full
business days prior to the Closing Date. WFASCOR agrees to have the Certificates
available for inspection, checking and packaging in New York, New York, on the
business day prior to the Closing Date.
4. Offering by Underwriter. It is understood that the Underwriter
proposes to offer the Certificates for sale as set forth in the Prospectus and
that the Underwriter will not offer, sell or otherwise distribute the
Certificates (except for the sale thereof in exempt transactions) in any state
in which the Certificates are not exempt from registration under state
securities laws or Blue Sky laws (except where the Certificates will have been
qualified for offering and sale at the direction of the Underwriter under such
state securities laws or Blue Sky laws). In connection with such offering(s),
the Underwriter agrees to provide WFASCOR with information related to the offer
and sale of the Certificates that is reasonably requested by WFASCOR, from time
to time (but not in excess of one year from the Closing Date), and necessary for
complying with its tax reporting obligations, including, without limitation, the
issue price of the Certificates.
The Underwriter further agrees that it will not sell or transfer any
Certificate or interest therein in the initial sale or transfer of such
Certificate by the Underwriter in an amount less than the minimum denomination
for such Certificate to be set forth in the applicable Terms Agreement.
5. Agreements. WFASCOR agrees with the Underwriter that:
(a) WFASCOR will cause the Prospectus to be filed with the
Commission pursuant to Rule 424 under the Act and, if necessary, within 15 days
of the Closing Date, will file a report on Form 8-K setting forth specific
information concerning the Certificates (but will not include any information
required to be filed under Section 9), and will promptly advise the Underwriter
when the Prospectus has been so filed, and, prior to the termination of the
offering of the Certificates, will also promptly advise the Underwriter (i) when
any amendment to the Registration Statement has become effective or any revision
of or supplement to the Prospectus has been so filed (unless such amendment,
revision or supplement does not relate to the Certificates), (ii) of any request
by the Commission for any amendment of the Registration Statement or the
Prospectus or for any additional information (unless such request does not
relate to the Certificates), and (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
institution or, to the knowledge of WFASCOR, the threatening of any proceeding
for that purpose (unless such stop order or proceeding does not relate to the
Certificates). WFASCOR will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof. Except as otherwise provided in Section 5(b) hereof, WFASCOR will not
file prior to the termination of such offering any amendment to the Registration
Statement or any revision of or supplement to the Prospectus (other than any
such amendment, revision or supplement which does not relate to the
Certificates) which shall be disapproved by the Underwriter after reasonable
notice and review of such filing.
(b) If, at any time when a prospectus relating to the Certificates
is required to be delivered under the Act (i) any event occurs as a result of
which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein in the light of the circumstances under which they were
made not misleading, or (ii) it shall be necessary to revise, amend or
supplement the Prospectus to comply with the Act or the rules and regulations of
the Commission thereunder, WFASCOR promptly will notify the Underwriter and
will, upon request of the Underwriter, or may, after consultation with the
Underwriter, prepare and file with the Commission a revision, amendment or
supplement which will correct such statement or omission or effect such
compliance, and furnish without charge to the Underwriter as many copies as the
Underwriter may from time to time reasonably request of an amended Prospectus or
a supplement to the Prospectus which will correct such statement or omission or
effect such compliance.
(c) WFASCOR will (i) furnish to the Underwriter and counsel for the
Underwriter, without charge, conformed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus relating
to the Certificates is required under the Act, as many copies of the Prospectus
and any revisions or amendments thereof or supplements thereto as may be
reasonably requested, and (ii) file promptly all reports and any definitive
proxy or information statements required to be filed by WFASCOR with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (as
such requirements may be modified pursuant to Section 12(h) of the Exchange Act)
subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale of the
Certificates.
(d) WFASCOR will, as between itself and the Underwriter, pay all
expenses incidental to the performance of its obligations under this Agreement
including, without limitation, (i) expenses of preparing, printing and
reproducing the Registration Statement, the Prospectus, the Pooling and
Servicing Agreement and the Certificates, (ii) the cost of delivering the
Certificates to the Underwriter, insured to the satisfaction of the Underwriter,
(iii) the fees charged by securities rating services for rating the
Certificates, (iv) the fees and expenses of the Trustee and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee in connection
with the Pooling and Servicing Agreement and the Certificates, and (v) all other
costs and expenses incidental to the performance by WFASCOR of WFASCOR's
obligations hereunder which are not otherwise specifically provided for in this
subsection. It is understood that, except as provided in this paragraph (d) and
in Sections 7 and 12 hereof, the Underwriter will pay all of its own expenses,
including (i) the fees of any counsel to the Underwriter, (ii) any transfer
taxes on resale of any of the Certificates by it, (iii) any advertising expenses
connected with any offers that the Underwriter may make, (iv) any expenses for
the qualification of the Certificates under state securities laws or Blue Sky
laws, including filing fees and the fees and disbursements of counsel for the
Underwriter in connection therewith and in connection with the preparation of
any Blue Sky survey and (v) any expenses incurred in connection with the
preparation of any Computational Materials, Structural Term Sheets and
Collateral Term Sheets (each as defined in Section 9) and the filing of such
materials with the Commission.
(e) So long as any Certificates are outstanding, upon the request of
the Underwriter, WFASCOR will, or will cause Xxxxx Fargo Bank to, furnish to the
Underwriter, as soon as available, a copy of (i) the annual statement of
compliance delivered by Xxxxx Fargo Mortgage to the Trustee under the Pooling
and Servicing Agreement, (ii) the annual independent public accountants'
servicing report furnished to the Trustee pursuant to the Pooling and Servicing
Agreement, (iii) each report of WFASCOR regarding the Certificates filed with
the Commission under the Exchange Act or mailed to the holders of the
Certificates, and (iv) from time to time, such other information concerning the
Certificates which may be furnished by WFASCOR or Xxxxx Fargo Bank without undue
expense and without violation of applicable law.
6. Conditions to the Obligation of the Underwriter. The obligation
of the Underwriter to purchase the Certificates shall be subject to the accuracy
in all material respects of the representations and warranties on the part of
WFASCOR and Xxxxx Fargo Mortgage contained herein as of the date of the
applicable Terms Agreement and as of the Closing Date, to the accuracy of the
statements of WFASCOR and Xxxxx Fargo Mortgage made in any officer's certificate
pursuant to the provisions hereof, to the performance in all material respects
by WFASCOR of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement with respect to the Certificates shall have been issued and no
proceedings for that purpose shall have been instituted and be pending or shall
have been threatened, and the Prospectus shall have been filed or mailed for
filing with the Commission not later than required pursuant to the rules and
regulations of the Commission.
(b) WFASCOR shall have furnished to the Underwriter a certificate,
dated the Closing Date, of WFASCOR, signed by a vice president of WFASCOR, to
the effect that the signer of such certificate has carefully examined the
Registration Statement, the Prospectus and this Agreement and that:
(i) The representations and warranties of WFASCOR herein are
true and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date, and
WFASCOR has complied with all agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement with respect to the Certificates has been
issued, and no proceedings for that purpose have been instituted and
are pending or, to his knowledge, have been threatened as of the
Closing Date; and
(iii) Nothing has come to the attention of such person that
would lead him or her to believe that the Prospectus contains any
untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(c) WFASCOR shall have caused Xxxxx Fargo Mortgage to furnish to the
Underwriter a certificate, dated the Closing Date, of Xxxxx Fargo Mortgage,
signed by a vice president or an assistant vice president of Xxxxx Fargo
Mortgage, to the effect that the representations and warranties of Xxxxx Fargo
Mortgage herein are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date, and Xxxxx
Fargo Mortgage has in all material respects complied with all agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date.
(d) WFASCOR shall have furnished to the Underwriter an opinion,
dated the Closing Date, of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to
WFASCOR, in form and substance reasonably satisfactory to the Underwriter and
its counsel.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the Pooling and
Servicing Agreement. Such opinion may assume the due authorization, execution
and delivery of the instruments and documents referred to therein by the parties
thereto other than WFASCOR. Such opinion may be qualified as an opinion only on
the laws of the State of New York, the laws of each state in which the writer of
the opinion is admitted to practice law and the federal law of the United
States.
(e) Xxxxx Fargo Bank shall have furnished to the Underwriter an
opinion, dated the Closing Date, of counsel to Xxxxx Fargo Bank (who may be an
employee of Xxxxx Fargo Bank), in form and substance reasonably satisfactory to
the Underwriter and its counsel.
(f) The Underwriter shall have received from counsel for the
Underwriter such opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Certificates, the Registration Statement and the
Prospectus, and such other related matters as the Underwriter may reasonably
require.
(g) WFASCOR's independent accountants, _________________, shall have
furnished to the Underwriter a letter dated as of or prior to the date of first
use of the Prospectus Supplement in the form and reflecting the performance of
the procedures previously agreed to by WFASCOR and the Underwriter.
(h) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of WFASCOR which the Underwriter concludes, in the
reasonable judgment of the Underwriter, materially impairs the investment
quality of the Certificates so as to make it impractical or inadvisable to
proceed with the public offering or the delivery of the Certificates as
contemplated by the Prospectus.
(i) The Certificates shall be rated not lower than the required
ratings set forth in the applicable Terms Agreement, such ratings shall not have
been rescinded and no public announcement shall have been made that either
rating of the Certificates has been placed under review (otherwise than for
possible upgrading).
(j) You shall have received copies of any opinions of counsel to
WFASCOR supplied to the rating organizations relating to certain matters with
respect to the Certificates. Any such opinions shall be dated the Closing Date
and addressed to you or accompanied by reliance letters to you or shall state
that you may rely upon them.
(k) WFASCOR shall have furnished to the Underwriter such further
information, certificates and documents as the Underwriter may reasonably have
requested, and all proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be in all material
respects reasonably satisfactory in form and substance to the Underwriter and
its counsel.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
this Agreement and all obligations of the Underwriter hereunder may be canceled
at, or at any time prior to, the Closing Date by the Underwriter. Notice of such
cancellation shall be given to WFASCOR in writing, or by telephone or telegraph
confirmed in writing.
7. Indemnification and Contribution. (a) WFASCOR agrees to indemnify
and hold harmless the Underwriter and each person who controls the Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Act, the Exchange Act, or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or in the Prospectus, or in any
revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it or him in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that
WFASCOR will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon (A) any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
WFASCOR by or on behalf of the Underwriter specifically for use in connection
with the preparation thereof or (B) any untrue statement or alleged untrue
statement of a material fact contained in any information delivered by the
Underwriter to WFASCOR pursuant to Section 9(e), or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, when
considered in conjunction with the Prospectus, and in the light of the
circumstances under which they were made, not misleading, except to the extent
that such misstatements are the result of inaccurate information with respect to
the Mortgage Loans supplied by WFASCOR which was not corrected by information
subsequently supplied by WFASCOR to the Underwriter at any time prior to the
earlier of (i) the written confirmation of a sale of the Certificates, which
sale results in the loss, claim, damage or liability arising out of or based
upon such misstatement, and (ii) the 90th day following the filing of the
Prospectus, as amended or supplemented, with the Commission; provided, further,
that WFASCOR shall not be liable to the Underwriter and each person who controls
the Underwriter with respect to any Prospectus or any Prospectus Supplement to
the extent that any loss, claim, damage or liability results from the fact that
the Certificates were offered or sold to a person to whom there was not
delivered, at or prior to the written confirmation of such sale, a copy of the
Prospectus or of the Prospectus as then revised, amended or supplemented in any
case where such delivery is required by the Act or the Exchange Act, if WFASCOR
has previously furnished copies thereof to the Underwriter. This indemnity
agreement will be in addition to any liability which WFASCOR may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless WFASCOR,
its officers who signed the Registration Statement or any amendment thereof, its
directors, and each person who controls WFASCOR within the meaning of either the
Act or the Exchange Act, and Xxxxx Fargo Mortgage, and each person who controls
Xxxxx Fargo Mortgage within the meaning of either the Act or the Exchange Act,
(i) to the same extent as the foregoing indemnities from WFASCOR to the
Underwriter, but only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to WFASCOR by or on behalf of the
Underwriter specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto or (ii)
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) are based on, result from or arise out of any untrue statement or
alleged untrue statement of a material fact contained in any information
delivered by the Underwriter to WFASCOR pursuant to Section 9(e), or arise out
of or are based upon the omission or alleged omission to state in such
information a material fact required to be stated therein or necessary to make
the statements therein, when considered in conjunction with the Prospectus, and
in the light of the circumstances under which they were made, not misleading;
except to the extent that such misstatements are the result of inaccurate
information with respect to the Mortgage Loans supplied by WFASCOR to the
Underwriter which was not corrected by information subsequently supplied by
WFASCOR to the Underwriter at any time prior to the earlier of (A) the written
confirmation of a sale of the Certificates, which sale results in the loss,
claim, damage or liability arising out of or based upon such misstatement, and
(B) the 90th day following the filing of the Prospectus, as amended or
supplemented, with the Commission. This indemnity agreement will be in addition
to any liability which the Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case any such action
is brought against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation by the indemnified
party undertaken with notice to and approval by the indemnifying party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to (A) in subsection (a) or (b)(i) above
in such proportion as is appropriate to reflect both (i) the relative benefits
received by WFASCOR on the one hand and the Underwriter on the other from the
offering of the Certificates and (ii) the relative fault of WFASCOR on the one
hand and the Underwriter on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations and (B) in subsection (b)(ii)
above, in such proportion as is appropriate to reflect the relative fault of the
Underwriter on the one hand and WFASCOR on the other in connection with the
actions, statements or omissions that resulted in such losses, claims, damages
or liabilities. The relative benefits received by WFASCOR on the one hand and
the Underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by
WFASCOR bear to the difference between (i) the total price at which the
Certificates underwritten by the Underwriter and distributed to the public were
offered to the public, and (ii) the portion of the total net proceeds from the
offering (before deducting expenses) received by WFASCOR attributable to the
Certificates. The relative fault for the purposes of clauses (A) and (B) above
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact related to information supplied by WFASCOR or the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission.
WFASCOR, Xxxxx Fargo Mortgage and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this subsection (d) 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 in this
subsection (d). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), and with respect to losses, claims,
damages or liabilities referred to in subsection (a) or (b) above, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Certificates underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which the Underwriter has 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.
(e) The obligations of WFASCOR under this Section 7 shall be in
addition to any liability which WFASCOR may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Underwriter within the meaning of the Act; and the obligations of the
Underwriter under this Section 7 shall be in addition to any liability which the
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to (i) the officers of WFASCOR who signed the Registration Statement
or any amendment thereof, to its directors, and to each person who controls
WFASCOR within the meaning of either the Act or the Exchange Act and (ii) each
person who controls Xxxxx Fargo Mortgage within the meaning of either the Act or
the Exchange Act.
8. Obligations of Xxxxx Fargo Mortgage. Xxxxx Fargo Mortgage agrees
with the Underwriter, for the sole and exclusive benefit of the Underwriter and
each person who controls the Underwriter within the meaning of either the Act or
the Exchange Act and not for the benefit of any assignee thereof or any other
person or persons dealing with the Underwriter, in consideration of and as an
inducement to its agreement to purchase the Certificates from WFASCOR, to
indemnify and hold harmless the Underwriter against any failure by WFASCOR to
perform its obligations to the Underwriter pursuant to Section 7 hereof;
provided, however, that the aggregate liability of Xxxxx Fargo Mortgage for the
foregoing indemnity shall not exceed an amount equal to the aggregate principal
amount of the Certificates.
9. Filing of Investor Information. (a) WFASCOR agrees to file with
the Commission current reports on Form 8-K under the Exchange Act in accordance
with paragraph (c) below, containing the Computational Materials, Structural
Term Sheets and Collateral Term Sheets described in paragraph (b) below,
provided by the Underwriter to WFASCOR in accordance with paragraph (e) below
and subject, in the case of Computational Materials and Structural Term Sheets,
to the conditions precedent set forth in paragraph (d) below for the purpose of
permitting the Underwriter to comply as to the Certificates with the No-Action
Letter of May 20, 1994 issued by the Commission to Xxxxxx, Peabody Acceptance
Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset
Corporation and the No-Action Letter of May 27, 1994 issued by the Commission to
the Public Securities Association (collectively, the "Xxxxxx/PSA Letter") and
the No-Action Letter of February 17, 1995 issued by the Commission to the Public
Securities Association (the "PSA Letter").
(b)(i) For purposes of Section 9(a), Computational Materials shall
mean any information with respect to the Certificates which constitutes
"Computational Materials," as defined in the Xxxxxx/PSA Letter, excluding (i)
complex multi-scenario vector analyses, (ii) option-adjusted spreads and (iii)
option-adjusted durations, prepared by the Underwriter and delivered to
investors, which information may be aggregated and filed in consolidated form to
the extent described in the Xxxxxx/PSA Letter, and that meets the criteria set
forth in Section 9(b)(ii).
For purposes of Section 9(a), Structural Term Sheets and Collateral
Term Sheets shall mean any information with respect to the Certificates which
constitutes "Structural Term Sheets" and "Collateral Term Sheets" as defined in
the PSA Letter and that, with respect to Structural Term Sheets meets the
criteria set forth in Section 9(b)(ii).
(ii) For purposes of Section 9(a), Computational Materials and
Structural Term Sheets are those that:
(A) are generated based on assumptions regarding the payment
priorities and characteristics of a class or subclass of Certificates that will
be actually issued and purchased by the Underwriter; and
(B) are provided to prospective investors under the following
conditions prior to the time of filing of the Prospectus pursuant to Rule 424(b)
under the Act:
(x) 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
or subclass of Certificates to which such Computational Materials or Structural
Term Sheets, as the case may be, relate, the Computational Materials or
Structural Term Sheets, as the case may be, relating to such class or subclass
that are sent to such prospective investor; and
(y) for any prospective investor, all Computational Materials or
Structural Term Sheets, as the case may be, that are sent to such prospective
investor after the structure for the entire issue of Certificates is finalized.
Computational Materials and Structural Term Sheets required to be
filed with the Commission will not include materials relating to abandoned
structures or materials that are furnished to prospective investors prior to the
time that the structure of the entire issue of Certificates is finalized where
such investors have not indicated to the Underwriter their intention to purchase
the Certificates described in such materials.
(c)(i) Subject to the timely receipt pursuant to Section 9(e)(i) of
the Computational Materials and Structural Term Sheets to be filed and the
satisfaction of the condition precedent set forth in paragraph (d), WFASCOR
agrees and covenants to file the Computational Materials and Structural Term
Sheets delivered to it by the Underwriter not later than the filing of the
Prospectus pursuant to Rule 424 under the Act.
(ii) Subject to the timely receipt pursuant to Section 9(e)(ii) of
the Collateral Term Sheets to be filed, WFASCOR agrees and covenants to file the
Collateral Term Sheets delivered to it by the Underwriter within two business
days of delivery.
(iii) WFASCOR agrees to file any information delivered to WFASCOR
for filing pursuant to Section (9)(e)(v) (A) or (C) on the business day
following the receipt of the accountant's letter pursuant to Section 9(d) with
respect to such information.
(iv) WFASCOR agrees to file any Collateral Term Sheet delivered to
WFASCOR for filing pursuant to Section 9(e)(v)(B) within two business days
following the receipt of such Collateral Term Sheet.
(d)(i) It shall be a condition precedent to WFASCOR's obligation to
file Computational Materials and Structural Term Sheets pursuant to this Section
9, that WFASCOR shall have received a letter not later than 5:00 P.M. on the
business day prior to such filing from WFASCOR's independent accountants,
_______________, reflecting the performance of procedures previously agreed to
by WFASCOR and otherwise in form and substance satisfactory to WFASCOR with
respect to the structural, financial, numerical or statistical information to be
filed. WFASCOR agrees to cooperate with the accountants to facilitate the
obtaining of such letter but nothing contained herein shall be construed as a
representation by WFASCOR that it will cause the accountants to provide such
letter or shall require WFASCOR to accept a letter in substance unsatisfactory
to it. Such letter will be obtained at the sole expense of the Underwriter. The
Underwriter acknowledges and agrees that WFASCOR is not able to obtain such
letter with respect to (i) complex multi-scenario vector analyses, (ii)
option-adjusted spreads and (iii) option-adjusted durations, and accordingly,
the Underwriter agrees it will not disseminate any such information in written
form to an investor prior to its delivery of a final Prospectus to such
investor.
(ii) The Underwriter agrees to cooperate with the accountants and
agrees to furnish revised Computational Materials or Structural Term Sheets, if
necessary, in order for the accountants to provide such letter.
(iii) WFASCOR intends, but is not obligated, to obtain a letter from
______________ regarding the information set forth in any Collateral Term Sheets
filed or to be filed pursuant to Section 9(a). Any such letter will be at the
expense of the Underwriter. If the accountants are unable to deliver such letter
because of inaccuracies in the Collateral Term Sheets, the provisions of Section
9(e)(v)(B) shall apply.
(e) (i) The Underwriter agrees and covenants to deliver to WFASCOR
no later than four business days before the delivery of the final Prospectus to
the Underwriter copies of all Computational Materials and Structural Term Sheets
that are required under the Xxxxxx/PSA Letter or the PSA Letter, as the case may
be, to be filed with the Commission.
(ii) The Underwriter agrees and covenants to deliver to WFASCOR any
Collateral Term Sheets that are required under the PSA Letter to be filed with
the Commission simultaneously with the delivery of such Collateral Term Sheets
to an investor.
(iii) The Underwriter represents and warrants to WFASCOR that the
Computational Materials, Structural Term Sheets and Collateral Term Sheets to be
furnished to WFASCOR by the Underwriter for filing with the Commission pursuant
to Section 9(c)(i) or (ii) will constitute all Computational Materials (either
in original, aggregated or consolidated form), Structural Term Sheets and
Collateral Term Sheets with respect to the Certificates that (i) were furnished
to prospective investors by the Underwriter in connection with its offer and
sale of the Certificates and (ii) are required to be filed with the Commission
in order to secure the relief granted under the Xxxxxx/PSA Letter or the PSA
Letter, as the case may be.
(iv) The Underwriter represents and warrants to, and covenants with,
WFASCOR that any information filed by WFASCOR with the Commission pursuant to
this Section 9 as of the date of filing will not include any untrue statements
of a material fact and, when considered in conjunction with the Prospectus, will
not omit to state any material facts required to be stated therein or necessary
to make the statements contained therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the Underwriter
makes no representation with respect to the accuracy of the Prospectus exclusive
of any information filed with the Commission pursuant to this Section 9 and any
other written information furnished to WFASCOR by or on behalf of the
Underwriter specifically for use in connection with the Prospectus and, provided
further, that the Underwriter makes no representation to the extent such
misstatements are the result of inaccurate information with respect to the
Mortgage Loans supplied by WFASCOR which was not corrected by information
subsequently supplied by WFASCOR to the Underwriter prior to the earlier of (A)
the written confirmation of a sale of the Certificates which sale results in a
loss, claim, damage or liability arising out of or based upon such misstatement,
and (B) the 90th day following the filing of the Prospectus, as amended or
supplemented, with the Commission.
(v) The Underwriter covenants with WFASCOR that:
(A) if a filing was made with the Commission with respect to a
structure which was considered final with respect to any class or subclass of
Certificates, and such structure is subsequently revised, the Underwriter shall
prepare and deliver to WFASCOR for filing with the Commission, pursuant to
Section 9(c)(ii), revised Computational Materials and Structural Term Sheets
based on such revised structure; and
(B) in the event that WFASCOR determines that any information
contained in a Collateral Term Sheet is inaccurate, the Underwriter shall
prepare and deliver to any investor that received the inaccurate Collateral Term
Sheet and to WFASCOR for filing with the Commission pursuant to Section
9(c)(iv), a revised Collateral Term Sheet.
(C) if any Computational Materials or Structural Term Sheets filed
with the Commission are determined by the Underwriter or WFASCOR, at any time
prior to the 90th day following the filing of the Prospectus, as amended or
supplemented, with the Commission, to contain any information that is inaccurate
or misleading, and WFASCOR determines that as a result such Computational
Materials or Structural Term Sheets include an untrue statement of a material
fact or, when considered in conjunction with the Prospectus, will omit to state
any material fact required to be stated therein or necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading, the Underwriter shall prepare and deliver to WFASCOR
for filing with the Commission pursuant to Section 9(c)(iii), corrected
Computational Materials or Structural Term Sheets, as the case may be; provided,
however, that if such information is inaccurate or misleading solely because it
is based on inaccurate information with respect to the Mortgage Loans supplied
by WFASCOR to the Underwriter, the Underwriter shall be under no obligation to
prepare and deliver to WFASCOR corrected Computational Materials or Structural
Term Sheets, as the case may be, unless and until corrected information is
supplied by WFASCOR to the Underwriter and such corrected information is
supplied by WFASCOR to the Underwriter at any time prior to the 90th day
following the filing of the Prospectus, as amended or supplemented, with the
Commission.
(vi) The Underwriter covenants with WFASCOR that any Computational
Materials, Structural Term Sheets or Collateral Term Sheets delivered to
prospective investors shall contain the following legend:
"THIS INFORMATION IS FURNISHED TO YOU SOLELY BY [UNDERWRITER] AND
NOT BY THE ISSUER OF THE SECURITIES OR ANY OF ITS AFFILIATES.
[UNDERWRITER] IS ACTING AS UNDERWRITER AND NOT ACTING AS AGENT FOR
THE ISSUER OR ITS AFFILIATES IN CONNECTION WITH THE PROPOSED
TRANSACTION."
or shall contain the legend mutually agreed upon between the Underwriter and
WFASCOR as set forth in Exhibit A hereto.
In addition, the Underwriter covenants with WFASCOR that any
Collateral Term Sheets delivered to prospective investors shall contain the
additional legend:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE MORTGAGE LOANS CONTAINED IN THE PROSPECTUS
SUPPLEMENT."
and, except for the initial Collateral Term Sheet sent to an investor,
"SUCH INFORMATION SUPERSEDES THE INFORMATION IN ALL
PRIOR COLLATERAL TERM SHEETS."
(f) Notwithstanding any other provision herein, the Underwriter and
WFASCOR each agree to pay all costs and expenses of the other party including,
without limitation, legal fees and expenses, incurred in connection with any
successful action by the Underwriter or WFASCOR against the other party to
enforce any of its rights set forth in this Section 9.
(g) The Underwriter covenants with WFASCOR that it will make
available to WFASCOR 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 materials concerning the Certificates to prospective investors prior to
the delivery of the final Prospectus to such investors.
(h) The Underwriter covenants with WFASCOR that after the final
Prospectus is available the Underwriter shall not distribute any written
information concerning the Certificates to a prospective investor unless such
information is preceded or accompanied by the final Prospectus.
10. Termination. Subsequent to the execution of the applicable Terms
Agreement, this Agreement shall be subject to termination in the absolute
discretion of the Underwriter, by notice given to WFASCOR prior to delivery of
and payment for the Certificates, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
materially limited or any setting of minimum prices for trading on such exchange
shall have been instituted, (ii) a general moratorium on commercial banking
activities in the State of New York shall have been declared by either federal
or New York State authorities, or (iii) there shall have occurred any material
outbreak or escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the reasonable judgment of the Underwriter, impracticable or inadvisable to
market the Certificates on the terms and in the manner contemplated by the
Prospectus as amended or supplemented. In addition, following receipt of notice
from WFASCOR that the Mortgage Loans will not conform to the specifications set
forth in the applicable Terms Agreement, if, in the reasonable judgment of the
Underwriter, such disparity would have a material adverse effect on the
marketing and sale of the Certificates, the Underwriter may terminate this
Agreement not later than the close of business on the first Business Day after
receipt of such notice or, if earlier, the Closing Date.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
WFASCOR, Xxxxx Fargo Mortgage and their respective officers and of the
Underwriter set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of the
Underwriter, WFASCOR, Xxxxx Fargo Mortgage or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Certificates. The provisions of Section 5(d), Section 7,
Section 8 and Section 11 hereof shall survive the termination or cancellation of
this Agreement.
12. Reimbursement of Expenses. If for any reason, other than default
by the Underwriter in its obligation to purchase the Certificates, the material
breach by the Underwriter of any of its covenants in Section 9 hereof (without
the fault of WFASCOR) or termination by the Underwriter pursuant to Section 10
hereof, the Certificates are not delivered by or on behalf of WFASCOR as
provided herein, WFASCOR will reimburse the Underwriter for all out-of-pocket
expenses of the Underwriter, including reasonable fees and disbursements of its
counsel, reasonably incurred by the Underwriter in making preparations for the
purchase, sale and delivery of the Certificates, but WFASCOR and Xxxxx Fargo
Mortgage shall then be under no further liability to the Underwriter with
respect to the Certificates except as provided in Section 5(d), Section 7 and
Section 8 hereof. If the Certificates are not delivered by or on behalf of
WFASCOR as provided herein because of the default by the Underwriter in its
obligation to purchase the Certificates or the material breach by the
Underwriter of any of its covenants in Section 9 hereof (without the fault of
WFASCOR), the Underwriter will reimburse WFASCOR for all out-of-pocket expenses
of WFASCOR, including reasonable fees and disbursements of its counsel,
reasonably incurred by WFASCOR in making preparations for the issuance and
delivery of the Certificates, but the Underwriter shall then be under no further
liability to WFASCOR with respect to the Certificates except as provided in
Sections 5(d) and 7 hereof.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 hereof and
their respective successors and assigns, and no other person will have any right
or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
15. Final Structure Due Date. The Underwriter agrees to submit to
WFASCOR not later than 9:00 a.m. New York City Time on the Final Structure Due
Date specified in the applicable Terms Agreement its determination of the final
structure relating to, among other items, the class designations, approximate
principal amounts and payment priorities of the Certificates. Changes to such
final structure may be made by the Underwriter after the Final Structure Due
Date if the changes are of a non-material nature. The determination as to
whether such changes are non-material shall be in the sole discretion of
WFASCOR. In addition, on or before the Final Structure Due Date the Underwriter
may elect an extension thereof for an additional one or two business days beyond
the original Final Structure Due Date if the Underwriter notifies WFASCOR of its
election not later than 9:00 a.m. New York City Time on such original Final
Structure Due Date and the Underwriter pays to WFASCOR, on or prior to the
Closing Date, an extension fee of $10,000 for each day the Final Structure Due
Date is extended as reimbursement for WFASCOR's costs and expenses arising from
such extension.
16. Miscellaneous. Time shall be of the essence of this Agreement.
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought. This Agreement may be signed in any number
of counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
17. Notices. All communications hereunder will be in writing and
effective only on receipt and, if sent to the Underwriter, will be delivered to
[Underwriter], [Street, City, State, Zip], Attn: ___________________, or if sent
to WFASCOR, will be delivered to WFASCOR at 0000 Xxx Xxxxxxx Xxx, Xxxxxxxxx,
Xxxxxxxx 00000; or if sent to Xxxxx Fargo Mortgage, will be delivered to Xxxxx
Fargo Mortgage at 000 Xxxxxxxxx 0xx Xxxxxx, Xxx Xxxxxx, Xxxx 00000.
* * *
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement by
and among WFASCOR, Xxxxx Fargo Mortgage and the Underwriter.
Very truly yours,
XXXXX FARGO ASSET SECURITIES CORPORATION
By: ______________________________
Name:
Title:
XXXXX FARGO HOME MORTGAGE, INC.
By: ______________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
[UNDERWRITER]
By: ___________________________
Name:
Title:
Exhibit A
XXXXX FARGO ASSET SECURITIES CORPORATION.
Home Equity Asset-Backed Certificates
Terms Agreement
[Underwriter] __________, 20__
[Address]
Underwriting Agreement dated _______, 20__.
Title of Certificates: Home Equity Asset-Backed Certificates,
Series 20__-_, [Classes] (the "Offered
Certificates").
Subclasses of Certificates Each of the Class A Certificates and
the Class B Certificates will consist
of one or more Subclasses with the
prior consent of WFASCOR, which
consent shall not be reasonably
withheld.
Aggregate Principal Amount of the:
Offered Certificates $__________ (Approximate)
Certificates Not Offered Hereby: [Classes]
Minimum Denominations of Offered
Certificates: $[_____] initial principal balance and
integral multiples of $1,000 in excess
thereof.
Description of the Mortgage Loans: Fixed and adjustable rate,
conventional, monthly pay, fully
amortizing, one- to four-family,
residential first and second mortgage
loans having original stated terms to
maturity of approximately [ ] years.
REMIC Election: Yes.
Cut-Off Date: _______ 1, 20__
Final Structure Due Date: _______ __, 20__
Distributions: Distributions will be made monthly on
the 25th day of each month or the next
succeeding Business Day (the
"Distribution Date").
Servicing Fee:
(Monthly fee payable to the Servicer): [ ]% to [ ] % per annum.
Trustee:
Book-Entry Registration: Settlement in "same-day" funds, to the
extent practicable. Any REMIC
residual, inverse floating rate and
stripped Certificates will not be
issued in book-entry form, unless
authorized by WFASCOR.
Optional Termination: [ ].
Required Ratings: [Ratings]
Closing Date, Location and Time: _______ __, 20__; offices of
Cadwalader, Xxxxxxxxxx & Xxxx LLP, New
York, New York; 10:00 a.m. New York
City Time.
Purchase Price for the Certificates: [ ]% of the initial aggregate
principal amount of the Offered
Certificates plus accrued interest
thereon.
Date of Pooling and Servicing
Agreement: The Closing Date.
