Exhibit 1.2
Execution Copy
XXXXX FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
Effective as of January 17, 2006
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxx Fargo Asset Securities Corporation, a Delaware corporation ("WFASC"
or the "Seller") proposes to issue and sell from time to time its Mortgage
Pass-Through Certificates in various series, each series of which may be divided
into classes, in one or more offerings on terms determined at the time of sale.
One or more series of Mortgage Pass-Through Certificates may be offered through
you, as underwriter (the "Underwriter"). Whenever WFASC determines to make an
offering of a series of its Mortgage Pass-Through Certificates through the
Underwriter, WFASC and Xxxxx Fargo Bank, N.A., a national banking association
(in such capacity, "Xxxxx Fargo Bank"), 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 Mortgage Pass-Through
Certificates to the Underwriter. WFASC is a wholly-owned subsidiary of Xxxxx
Fargo Bank. The Mortgage Pass-Through Certificates of the series and classes 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 Mortgage Pass-Through Certificates of the same series
that are not being sold in each offering to the Underwriter under this
Underwriting Agreement are hereinafter referred to as the "Other 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 a
pool (the "Mortgage Pool") of mortgage loans acquired by WFASC (the "Mortgage
Loans") and related property but excluding the Fixed Retained Yield, if any,
specified in the Terms Agreement (collectively, the "Trust Estate"). 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 pursuant to 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
WFASC, as depositor, Xxxxx Fargo Bank, as master servicer (in such capacity, the
"Master Servicer"), the trustee identified in the applicable Terms Agreement, as
trustee (the "Trustee") and, if applicable, the trust administrator identified
in the applicable Terms Agreement, as trust administrator (the "Trust
Administrator"). The Certificates will be issued in denominations of $25,000, or
such lesser or greater amounts as may be specified 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, WFASC and Xxxxx Fargo Bank. Each offering
of Mortgage Pass-Through 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) WFASC 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. 333-127031), including a
prospectus (the "Base 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
WFASC's knowledge, threatened by the Commission; and the Base 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, 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 Base 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").
(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" (as hereinafter defined), 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 and 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 WFASC makes no
representations, warranties or agreements 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 WFASC 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.
(iii) Assuming that certain of the Certificates are rated at the time
of issuance in one of the two highest rating categories by a nationally
recognized statistical rating organization, each such Certificate at such
time will be a "mortgage related security" as such term is defined in
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(iv) 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, WFASC 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.
(v) This Agreement has been duly authorized, executed and delivered by
WFASC and, as of the Closing Date, the Pooling and Servicing Agreement
will have been duly authorized, executed and delivered by WFASC and will
conform in all material respects to the description thereof contained in
the Prospectus and, assuming the valid execution thereof by the Trustee,
the Trust Administrator, if applicable, and the Master Servicer, the
Pooling and Servicing Agreement will constitute a valid and binding
agreement of WFASC 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.
(vi) WFASC 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.
(vii) 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 WFASC,
and WFASC 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 WFASC is a party or by which
it or its properties are bound, or (ii) any law, decree, order, rule or
regulation applicable to WFASC of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or arbitrator
having jurisdiction over WFASC, or its properties, the default in or the
breach or violation of which would have a material adverse effect on WFASC
or the ability of WFASC 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.
(viii) 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 WFASC 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 WFASC),
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 or, if applicable, to the Trust
Administrator on behalf of the Trustee, pursuant to the Pooling and
Servicing Agreement that have not yet been completed.
(ix) 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 WFASC is a party, or, to the best of WFASC's
knowledge, threatened against WFASC, 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 WFASC or could reasonably interfere
with or materially and adversely affect the consummation of the
transactions contemplated herein.
(x) On the Closing Date the representations and warranties made by
WFASC in the Pooling and Servicing Agreement will be true and correct in
all material respects as of the date made.
(xi) At the time of execution and delivery of the Pooling and Servicing
Agreement, WFASC will own the mortgage notes (the "Mortgage Notes") being
transferred to the Trust Estate 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 Estate any of its right, title or interest,
exclusive of the Fixed Retained Yield, if any, in the Mortgage Notes.
WFASC will have the power and authority to transfer the Mortgage Notes to
the Trust Estate 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 Estate will own the
Mortgage Notes (exclusive of the Fixed Retained Yield, if any) 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.
(xii) 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
WFASC on or prior to the Closing Date, except for fees for recording
assignments of mortgage loans to the Trustee or, if applicable, to the
Trust Administrator on behalf of the Trustee, pursuant to the Pooling and
Servicing Agreement that have not yet been completed, which fees will be
paid by WFASC in accordance with the Pooling and Servicing Agreement.
(xiii) The transfer of the Mortgage Loans and the related assets to the
Trust Estate on the Closing Date will be treated by WFASC for financial
accounting and reporting purposes as a sale of assets and not as a pledge
of assets to secure debt.
(xiv) WFASC is not, and on the date on which the first bona fide offer
of the Certificates is made will not be, an "ineligible issuer," as
defined in Rule 405 under the Act.
(b) Xxxxx Fargo Bank represents and warrants to, and agrees with, the
Underwriter as of the date of the applicable Terms Agreement that:
(i) Xxxxx Fargo Bank is a national banking association duly chartered
and validly existing in good standing under the laws of the United States
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 Bank of this Agreement
are within the corporate power of Xxxxx Fargo Bank and have been duly
authorized by all necessary corporate action on the part of Xxxxx Fargo
Bank.
(iii) Neither the execution and delivery of this Agreement, nor the
consummation by Xxxxx Fargo Bank 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 corporate charter or bylaws of Xxxxx Fargo Bank.
(iv) This Agreement has been duly authorized, executed and delivered by
Xxxxx Fargo Bank.
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 WFASC (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 WFASC 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 business days prior to the
Closing Date. WFASC 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 WFASC with information related to the offer and
sale of the Certificates that is reasonably requested by WFASC, from time to
time (but not in excess of three years from the Closing Date), and necessary for
complying with its tax reporting obligations, including, without limitation, the
issue price of the Certificates.
The Underwriter 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 Prospectus Supplement.
The Underwriter further agrees that (i) if it delivers to an investor the
Prospectus in portable document format ("PDF"), upon the Underwriter's receipt
of a request from the investor within the period for which delivery of the
Prospectus is required, the Underwriter will promptly deliver or cause to be
delivered to the investor, without charge, a paper copy of the Prospectus and
(ii) it will provide to WFASC any Underwriter Free Writing Prospectuses (as
defined in Section 9(b)), or portions thereof, which WFASC is required to file
with the Commission in electronic format and will use reasonable efforts to
provide to WFASC such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF, except to the
extent that WFASC, in its sole discretion, waives such requirements.
5. Agreements. WFASC agrees with the Underwriter that:
(a) WFASC 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, 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 with
respect to the Certificates or the institution or, to the knowledge of WFASC,
the threatening of any proceeding for that purpose. WFASC 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, WFASC 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 (without regard to reliance on Rule 174
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, WFASC
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) WFASC 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 WFASC
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) WFASC 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, reproducing and filing
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 (a) securities rating services for rating the Certificates and (b)
WFASC's independent accountants in connection with the agreed-upon procedures
letter to be delivered pursuant to Section 6(g) hereof, (iv) the fees and
expenses of the Trustee, the Trust Administrator, if applicable, and any agent
of the Trustee or the Trust Administrator, if applicable, and the fees and
disbursements of counsel for the Trustee and the Trust Administrator, if
applicable, in connection with the Pooling and Servicing Agreement and the
Certificates, and (v) all other costs and expenses incidental to the performance
by WFASC of WFASC'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 and delivery of any Underwriter Free
Writing Prospectus and the filing of such Free Writing Prospectus, if required
to be filed by Underwriter with the Commission.
(e) So long as any Certificates are outstanding, upon the request of the
Underwriter, WFASC will, or will cause the Master Servicer to, furnish to the
Underwriter, as soon as available, a copy of (i) the annual statement of
compliance delivered by the Master Servicer 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 WFASC 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 WFASC or the Master Servicer without undue expense and without
violation of applicable law.
(f) The effective date of the Registration Statement was within three
years of the Closing Date of the Certificates. If the third anniversary of the
effective date occurs within six months after the Closing Date, the Company will
use reasonable efforts to take such action as may be necessary or appropriate to
permit the public offering and sale of the Certificates as contemplated herein.
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 WFASC and
Xxxxx Fargo Bank contained herein as of the date of the applicable Terms
Agreement and as of the Closing Date, to the accuracy of the statements of WFASC
and Xxxxx Fargo Bank made in any officer's certificate pursuant to the
provisions hereof, to the performance in all material respects by WFASC 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) WFASC shall have furnished to the Underwriter a certificate, dated the
Closing Date, of WFASC, signed by a vice president or an assistant vice
president of WFASC, 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 WFASC 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 WFASC has complied with
all agreements and satisfied all the conditions on its part to be
performed or satisfied on 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 or her 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) WFASC shall have caused Xxxxx Fargo Bank to furnish to the Underwriter
a certificate, dated the Closing Date, of Xxxxx Fargo Bank, signed by a vice
president or an assistant vice president of Xxxxx Fargo Bank, to the effect that
the representations and warranties of Xxxxx Fargo Bank 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 Bank 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) WFASC shall have furnished to the Underwriter an opinion, dated the
Closing Date, of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to WFASC, to the
effect that:
(i) WFASC is a corporation validly existing and in good standing under
the laws of the State of Delaware, with corporate power to enter into and
perform its obligations under this Agreement, the applicable Terms
Agreement and the Pooling and Servicing Agreement;
(ii) The execution and delivery of this Agreement and the applicable
Terms Agreement have been duly authorized by WFASC and this Agreement and
the applicable Terms Agreement have been duly executed and delivered by
WFASC;
(iii) The execution and delivery of the Pooling and Servicing Agreement
has been duly authorized by WFASC, and the Pooling and Servicing Agreement
has been duly executed and delivered by WFASC and constitutes a legal,
valid and binding agreement of WFASC, enforceable against WFASC in
accordance with its terms subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, receivership or other
laws relating to or affecting creditors' rights generally or the rights of
creditors of banks, and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity), and
except that the enforcement of rights with respect to indemnification and
contribution obligations and provisions (a) purporting to waive or limit
rights to trial by jury, oral amendments to written agreements or rights
of set off or (b) relating to submission to jurisdiction, venue or service
of process, may be limited by applicable law or considerations of public
policy;
(iv) The Certificates have been duly authorized and executed by WFASC
and, when the Certificates have been duly executed, authenticated and
delivered in the manner contemplated in the Pooling and Servicing
Agreement and paid for by the Underwriter pursuant to this Agreement and
the applicable Terms Agreement, the Certificates will be validly issued
and outstanding and entitled to the benefits provided by the Pooling and
Servicing Agreement;
(v) The issuance and sale by WFASC of the Certificates to the
Underwriter pursuant to this Agreement and the applicable Terms Agreement,
the compliance by WFASC with the provisions of this Agreement, the
applicable Terms Agreement and the Pooling and Servicing Agreement, and
the consummation by WFASC of the transactions therein contemplated (a) do
not require the consent, approval, authorization, order, or qualification
of or registration with any New York State or federal governmental
authority or, to the knowledge of such counsel, any New York State or
federal court, except such as may be required under state securities or
blue sky laws, recordations of the assignment of the Mortgage Loans to the
Trustee pursuant to the Pooling and Servicing Agreement that have not yet
been completed, and such other approvals as have been obtained or
effected, (b) do not conflict with or result in a violation of any
provision of the certificate of incorporation and bylaws of WFASC or any
New York State or federal law, and (c) to the knowledge of such counsel,
do not conflict with or result in a breach or violation of any material
indenture, agreement or instrument to which WFASC is a party or by which
it or any of its property is bound, or any judgment, decree or order
applicable to WFASC, of any New York State or federal court, regulatory
body, administrative agency or other governmental authority;
(vi) To the knowledge of such counsel, there is no legal or
governmental action, investigation or proceeding pending or threatened
against WFASC (a) asserting the invalidity of this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement or the
Certificates, (b) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this Agreement
and the applicable Terms Agreement, (c) which would materially and
adversely affect the performance by WFASC of its obligations under, or the
validity or enforceability (with respect to WFASC) of, this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement or the
Certificates or (d) seeking to affect adversely the federal income tax
attributes of the Certificates as described in the Prospectus and the
Prospectus Supplement under the headings "Certain Federal Income Tax
Consequences" and "Federal Income Tax Considerations," respectively. For
purposes of the opinion set forth in this paragraph, such counsel has not
regarded any legal or governmental actions, investigations or proceedings
to be "threatened" unless the potential litigant or governmental authority
has manifested to WFASC a present intention to initiate such proceedings;
(vii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended;
(viii) The Trust Estate (as defined in the Pooling and Servicing
Agreement) is not required to be registered under the Investment Company
Act of 1940, as amended;
(ix) The Registration Statement has been declared effective under the
Act, and, to the knowledge of such counsel, no stop order with respect
thereto has been issued by the Commission;
(x) The Registration Statement, as of its effective date, and the
Prospectus and the Prospectus Supplement, as of the dates thereof (in each
case, with the exception of any information incorporated by reference
therein and any numerical, financial, statistical and quantitative data
included therein, as to which such counsel expresses no view), appeared on
their respective faces to be appropriately responsive in all material
respects to the requirements of the Act and the rules and regulations
thereunder applicable to such documents as of the relevant date;
(xi) The statements in the Prospectus Supplement under the headings
"Federal Income Tax Considerations" and "ERISA Considerations," insofar as
such statements purport to summarize matters of federal law or legal
conclusions with respect thereto have been reviewed by such counsel and
are correct in all material respects; and
(xii) Assuming that the Certificates are rated at the time of issuance
in one of the two highest rating categories by a nationally recognized
statistical rating organization, each such Certificate at such time will
be a "mortgage related security" as such term is defined in Section
3(a)(41) of the Exchange Act.
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 WFASC. 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. To the extent that such firm relies upon the opinion of other counsel in
rendering any portion of its opinion, the opinion of such other counsel shall be
attached to and delivered with the opinion of such firm that is delivered to the
Underwriter.
(e) The Master Servicer shall have furnished to the Underwriter an
opinion, dated the Closing Date, of counsel to the Master Servicer (who may be
an employee of the Master Servicer), to the effect that:
(i) The Master Servicer has been duly incorporated and is validly
existing as a national banking association and has the power and authority
to enter into, and to take all action required of it under, the Pooling
and Servicing Agreement and the Servicing Agreement (as defined in the
Pooling and Servicing Agreement);
(ii) The Pooling and Servicing Agreement and the Servicing Agreement
have been duly authorized, executed and delivered by the Master Servicer
and, assuming valid execution and delivery thereof by the other parties
thereto, the Pooling and Servicing Agreement and the Servicing Agreement
constitute a valid and legally binding agreements of the Master Servicer,
enforceable against the Master Servicer in accordance with their terms,
subject to bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting creditors' rights generally and to
general equity principles regardless of whether such enforcement is
considered in a proceeding at law or in equity;
(iii) No consent, approval, authorization or order of any federal court
or governmental agency or body is required for the consummation by the
Master Servicer of the transactions contemplated by the terms of the
Pooling and Servicing Agreement and the Servicing Agreement except any
such as may be required under the blue sky laws of any jurisdiction in
connection with the offering, sale or acquisition of the Certificates, any
recordations of the assignments of the mortgage loans evidenced by the
Certificates pursuant to the Pooling and Servicing Agreement that have not
yet been completed and any approvals as have been obtained;
(iv) The consummation by the Master Servicer of the transactions
contemplated by the terms of the Pooling and Servicing Agreement and the
Servicing Agreement do not, to the knowledge of such counsel, conflict
with or result in a breach or violation of any material term or provision
of, or constitute a default under, the charter or bylaws of the Master
Servicer, any indenture or other agreement or instrument to which the
Master Servicer is a party or by which it is bound, any federal statute or
regulation applicable to the Master Servicer or, to the knowledge of such
counsel, any order of any federal court, regulatory body, administrative
agency or governmental body having jurisdiction over the Master Servicer;
and
(v) To the best knowledge of such counsel after due inquiry, there are no
legal or governmental actions, investigations or proceedings pending to
which the Master Servicer is a party, or threatened against the Master
Servicer, (A) asserting the invalidity of the Pooling and Servicing
Agreement or the Servicing Agreement or (B) which might materially and
adversely affect the performance by the Master Servicer of its
obligations under, or the validity or enforceability of, the Pooling
and Servicing Agreement or the Servicing Agreement. For purposes of the
foregoing, such counsel may state that it has not regarded any legal or
governmental actions, investigations or proceedings to be "threatened"
unless the potential litigant or governmental authority has manifested
to a member of the law division of Xxxxx Fargo & Company having
responsibility for litigation matters involving the master servicing
activities of the Master Servicer a present intention to initiate such
proceedings.
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 the Pooling and Servicing Agreement or
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 the Master Servicer. Such opinion may be qualified as an
opinion only on the federal law of the United States and, with respect to the
opinions set forth in paragraph (e)(ii) above, the laws of the State of New
York. To the extent that such counsel relies upon the opinion of other counsel
in rendering any portion of its opinion, the opinion of such other counsel shall
be attached to and delivered with the opinion of such counsel that is delivered
to the Underwriter.
(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) WFASC shall have delivered to the Underwriter (i) a letter from
WFASC's independent accountants, as identified in the applicable Terms Agreement
(the "Independent Accountants"), 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 WFASC and the Underwriter with respect to
numerical and statistical information included in the Prospectus Supplement
(other than static pool information, if any, provided pursuant to Item 1105 of
Regulation AB under the Act), (ii) a copy of a letter from WFASC's Independent
Accountants, addressed to WFASC, dated as of a date not more than 135 days prior
to the date of first use of the Prospectus Supplement, reflecting the
performance of the procedures previously agreed to by WFASC and the Independent
Accountants with respect to any static pool information contained on WFASC's
static pool website for securitized mortgage pools issued on or after January 1,
2006 and/or vintage origination years commencing on or after January 1, 2006
which is incorporated into the Prospectus Supplement and (iii) a bring down
letter, dated the date of the Prospectus Supplement, from the Independent
Accountants with respect to the letter described in (ii), which shall be
addressed to the Underwriter provided that the Underwriter shall have complied
with any reasonable requests of the Independent Accountants as a condition
thereto.
(h) Subsequent to the date on which WFASC notifies the Underwriter that
WFASC has selected it to underwrite the offering of the Certificates (the "Bid
Date"), there shall not have occurred any change, or any development involving a
prospective change, in or affecting the business or properties of WFASC 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) The Underwriter shall have received an opinion of special counsel to
WFASC, dated the Closing Date, in form and substance satisfactory to the
Underwriter, with respect to certain state tax consequences under the tax laws
of the jurisdiction in which the Trustee is located relating to the Trust Estate
and the holders of the Certificates.
(k) The Underwriter shall have received copies of any opinions of counsel
to WFASC 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 the Underwriter or accompanied by reliance letters to the
Underwriter or shall state that the Underwriter may rely upon them.
(l) The Underwriter shall have received a letter from counsel to WFASC,
dated the Closing Date, to the effect that in the course of such counsel's
review of the Prospectus and discussion of the same with certain officers of
WFASC, its accountants and the Underwriter, no facts came to the attention of
such counsel that caused such counsel to believe that the Prospectus, as of the
date of the Prospectus Supplement, or any revision or amendment thereof or
supplement thereto, contained any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in the light
of circumstances under which they were made, not misleading; it being understood
that such counsel need express no view as to any financial, numerical,
statistical, or quantitative data contained in the Prospectus, or any material
incorporated by reference in the Prospectus.
(m) WFASC 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.
(n) The issuance on the Closing Date of the Other Certificates.
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 WFASC in writing, or by telephone or telegraph
confirmed in writing.
7. Indemnification and Contribution. (a) WFASC 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 (i) 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 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, or (ii) any untrue statement or
alleged untrue statement of a material fact contained in any preliminary or
final quantitive data about the Mortgage Loans ("Mortgage Loan Data") supplied
by WFASC to the Underwriter or the omission or alleged omission to include
material data therein necessary to make the data therein not misleading, at the
Time of Sale, when considered in conjunction with the Prospectus, and provided
that such misstatement or omission was not corrected by information subsequently
supplied by WFASC to the Underwriter sufficiently prior to the Time of Sale to
such investor to reasonably permit the delivery thereof by the Underwriter to
such investor, and WFASC 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 WFASC 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
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 WFASC by or on behalf of the Underwriter specifically
for use in connection with the preparation thereof This indemnity agreement will
be in addition to any liability which WFASC may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless WFASC, its
officers who signed the Registration Statement or any amendment thereof, its
directors, and each person who controls WFASC within the meaning of either the
Act or the Exchange Act, and Xxxxx Fargo Bank, and each person who controls
Xxxxx Fargo Bank within the meaning of either the Act or the Exchange Act, (i)
to the same extent as the foregoing indemnities from WFASC 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 WFASC 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 (A) any untrue statement or alleged untrue
statement of a material fact contained in any Underwriter Free Writing
Prospectus as defined in Section 9(b), or any omission or alleged omission to
state in such Underwriter Free Writing Prospectus a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading at the Time of Sale to the applicable investor, when
considered in conjunction with the Prospectus; except to the extent that such
untrue statements or alleged untrue statements or omissions or alleged omissions
are the result of untrue statements in or omissions from any Mortgage Loan Data
supplied by WFASC to the Underwriter which 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 (B) any failure by the Underwriter to comply
with the provisions of Section 9(a)(i). 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 selected by such indemnified party
and satisfactory to the indemnifying party (or if the indemnified party fails to
promptly select counsel following the receipt of the aforesaid notice, with
counsel selected by the indemnifying party and satisfactory to such indemnified
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 WFASC on
the one hand and the Underwriter on the other from the offering of the
Certificates and (ii) the relative fault of WFASC 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 WFASC 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 WFASC 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 WFASC 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 WFASC 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 WFASC or the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. WFASC, Xxxxx Fargo Bank 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 WFASC under this Section 7 shall be in addition to
any liability which WFASC 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 WFASC who signed the Registration Statement or any amendment
thereof, to its directors, and to each person who controls WFASC within the
meaning of either the Act or the Exchange Act and (ii) each person who controls
Xxxxx Fargo Bank within the meaning of either the Act or the Exchange Act.
(f) As used in this Agreement, "Time of Sale" means, as to any investor in
the Certificates, the time at which such investor enters into a "contract of
sale" within the meaning of Rule 159 under the Act (a "Contract of Sale") for
the Certificates, or if such Contract of Sale is subsequently terminated and a
new Contract of Sale is entered into by mutual agreement between such investor
and the applicable Underwriter in a manner sufficient to constitute a
reformation of the contract within the contemplation of Section IV.2.c of
Securities Act Release 33-8591, such time at which the new Contract of Sale is
entered into.
8. Obligations of Xxxxx Fargo Bank. Xxxxx Fargo Bank 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 WFASC, to
indemnify and hold harmless the Underwriter against any failure by WFASC to
perform its obligations to the Underwriter pursuant to Section 7 hereof;
provided, however, that the aggregate liability of Xxxxx Fargo Bank for the
foregoing indemnity shall not exceed an amount equal to the aggregate principal
amount of the Certificates.
9. Offering Communications; Free Writing Prospectuses. (a) (i) The
Underwriter will not enter into any Contract of Sale with respect to the
Certificates with any investor unless the Underwriter has delivered to such
investor a copy of the final Prospectus and (ii) The Underwriter shall not enter
into any Contract of Sale with respect to the Certificates with any investor
unless the Underwriter complies with the prospectus delivery and notice
requirements of Rules 172 and 173 under the Act.
(b) 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."
(c) (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) 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 Prospectus; provided however,
that the Underwriter makes no representation 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.
(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, 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.
(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 XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the
prospectus if you request it by calling toll-free 1-8[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.
(j) (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 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).
(k) (i) 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 Prospectus (such Free
Writing Prospectus, a "Defective Underwriter Free Writing Prospectus"), the
Underwriter shall notify WFASC thereof within one business day after discovery.
(ii) 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");
(B) deliver the Corrected Underwriter Free Writing Prospectus to
each investor which received the Defective Underwriter 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.
(l) 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.
(m) 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.
(n) 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.
(o) The Underwriter agrees to cause any credit enhancement provider,
derivative counterparty, special servicer or credit risk manager arranged by the
Underwriter in connection with the Certificates to provide to WFASC such
narrative disclosure, financial information, including required accountants'
consents, and other information as 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) Notwithstanding any other provision herein, the Underwriter and WFASC
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 WFASC against the other party to enforce any of its
rights set forth in this Section 9.
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 WFASC 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 there shall have occurred a material disruption in
securities settlement or clearance services in the United States, 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 WFASC 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 WFASC, Xxxxx
Fargo Bank 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, WFASC, Xxxxx Fargo
Bank 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 12 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 WFASC) or termination by the Underwriter pursuant to Section 10
hereof, the Certificates are not delivered by or on behalf of WFASC as provided
herein, WFASC 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 WFASC and Xxxxx Fargo Bank 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 WFASC 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 WFASC), the Underwriter will
reimburse WFASC for all out-of-pocket expenses of WFASC, including reasonable
fees and disbursements of its counsel, reasonably incurred by WFASC in making
preparations for the issuance and delivery of the Certificates, but the
Underwriter shall then be under no further liability to WFASC 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 WFASC
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 WFASC.
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 WFASC 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 WFASC, 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 WFASC'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 Xxxxxxx,
Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or if sent to WFASC,
will be delivered to WFASC at 0000 Xxx Xxxxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxx
00000; or if sent to Xxxxx Fargo Bank, will be delivered to Xxxxx Xxxxx Xxxx xx
0 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000.
* * *
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 WFASC, Xxxxx Fargo Bank and the Underwriter, effective as of the date
first above written and executed as of the date or dates indicated below.
Very truly yours,
XXXXX FARGO ASSET SECURITIES
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Date: February 22, 2006
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Date: February 22, 2006
The foregoing Underwriting
Agreement is hereby confirmed and
accepted as of the date first above
written.
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxxxxx Xxxx
----------------------------------
(Xxxxxxx, Xxxxx & Co.)
Date: February 22, 2006
Exhibit A
XXXXX FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
Form of Terms Agreement
____________, 20__
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Underwriting Agreement dated January 17, 2006
Title of Certificates: Mortgage Pass-Through Certificates,
Series 20__, (Classes) (the "Offered
Certificates").
Classes of Certificates: Each of the Class A and Class B
Certificates will consist of one or
more classes with the prior consent of
Xxxxx Fargo Asset Securities
Corporation (the "Seller"), which
consent shall not be unreasonably
withheld.
Aggregate Principal Amount $ ___________(Approximate)
of the Offered Certificates:
Certificates Not Offered Hereby: The Class A, Class B-4, Class B-5 and
Class B-6 Certificates (the "Other
Certificates").
Subordination: "Shifting interest" structure.
Minimum Denominations of
Offered Certificates:
Class Minimum Denomination Incremental Denomination
Classes B-1, B-2 and B-3 $ 100,000 $1,000
Description of the Mortgage Loans: Fixed interest
rate, conventional, monthly pay, fully
amortizing, one- to four-family,
residential first 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 [ ] % per annum (or as described in
the Servicer): the prospectus supplement).
Master Servicing Fee (Monthly fee [ ]% per annum.
payable to the Master Servicer):
Fixed Retained Yield: [Yes][No].
Trustee:
[Trust Administrator: [______________]
Independent Accountants:
Book-Entry Registration: Settlement in "same-day"
funds, to the extent practicable. REMIC
residual certificates will not be
issued in book-entry form, unless
authorized by the Seller.
Optional Termination: The Seller will have the right to
repurchase all remaining Mortgage
Loans, and effect an early retirement
of the Certificates, when the
aggregate scheduled principal balance
of the Mortgage Loans is less than 10%
of the aggregate principal balance of
the Mortgage Loans as of the Cut-Off
Date.
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 Offered
Certificates:
Class Percent of Initial Aggregate
Principal Balance
Classes B-1, B-2 and B-3 %
In each case, as offered and sold pursuant to this Terms Agreement, plus
accrued interest, if applicable, thereon.
Notwithstanding any other provision of the above-referenced Underwriting
Agreement, all references to the Registration Statement in the Underwriting
Agreement shall be with reference to File No. _________.
Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in the above-referenced Underwriting
Agreement (which is incorporated herein in its entirety and made a part hereof)
as supplemented by this Terms Agreement, the Seller agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Seller, the Offered
Certificates.
The Underwriter has been retained solely to act as underwriter in
connection with the sale of the Offered Certificates to investors (including the
establishment of the price of the Offered Certificates to investors), and no
fiduciary, advisory or agency relationship between Seller and the Underwriter
has been created in respect of any of the transactions contemplated by this
Terms Agreement, irrespective of whether the Underwriter has advised or is
advising Seller on other matters.
* * *
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 the Seller, Xxxxx Fargo Bank, N.A. and the Underwriter.
Very truly yours,
XXXXX FARGO ASSET SECURITIES
CORPORATION
By:
----------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A.
By:
----------------------------------
Name:
Title:
The foregoing Terms Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXXXXX, XXXXX & CO.
By:
-----------------------------------
(Xxxxxxx, Sachs & Co.)
Execution Copy
XXXXX FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
TERMS AGREEMENT
January 17, 2006
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Underwriting Agreement dated January 17, 2006
Title of Certificates: Mortgage Pass-Through Certificates,
Series 2006-AR1, Class B-1, Class B-2
and Class B-3 (the "Offered
Certificates").
Classes of Certificates: Each of the Class A and Class B
Certificates will consist of one or
more classes with the prior consent of
Xxxxx Fargo Asset Securities
Corporation (the "Depositor"), which
consent shall not be unreasonably
withheld.
Aggregate Principal Amount $26,356,000 (Approximate)
of the Offered Certificates:
Certificates Not Offered Hereby: The Class A, Class B-4, Class B-5 and
Class B-6 Certificates (the "Other
Certificates").
Subordination: "Shifting interest" structure.
Minimum Denominations of
Offered Certificates:
Class Minimum Denomination Incremental Denomination
Classes B-1, B-2 and B-3 $ 100,000 $1,000
Description of the Mortgage Loans: Two loan groups of fully amortizing,
one- to four-family, adjustable
interest rate, residential first
mortgage loans, substantially all of
which have original terms to stated
maturity of approximately 30 years.
Certain of the mortgage loans will
require only payments of interest for
a term specified in the related
mortgage note.
REMIC Election: Yes.
Cut-Off Date: February 1, 2006
Final Structure Due Date: February 3, 2006
Delivery of Final Prospectus (if the
final structure is not delivered to
the Depositor by the Final Structure
Due Date):
Final Structure Delivered the Depositor Delivery of Final Prospectus to
Underwriter
By February 9, 2006: One Business Day before Closing Date.
By February 14, 2006: Closing Date.
By February 15, 2006: As determined by the Depositor,
possible change of Closing Date.
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 0.250% per annum (or as described in
the Servicer): the prospectus supplement).
Master Servicing Fee (Monthly fee 0.010% per annum.
payable to the Master Servicer):
Fixed Retained Yield: No.
Trustee: U.S. Bank National Association.
Independent Accountants: Deloitte & Touche LLP
Book-Entry Registration: Settlement in "same-day" funds, to the
extent practicable. REMIC residual
certificates will not be issued in
book-entry form, unless authorized by
the Depositor.
Optional Termination: The Depositor will have the right to
repurchase all remaining Mortgage
Loans, and effect an early retirement
of the Certificates, when the
aggregate scheduled principal balance
of the Mortgage Loans is less than 10%
of the aggregate principal balance of
the Mortgage Loans as of the Cut-Off
Date.
Required Ratings:
The following ratings by Standard &
Poor's, a division of the XxXxxx-Xxxx
Companies, Inc. ("S&P") and Xxxxx'x
Investors Service, Inc. ("Moody's"):
Class S&P Moody's
----- ---- --------
Class B-1 AA Aa2
Class B-2 A A2
Class B-3 BBB Baa1
Closing Date, Location and Time: February 23, 2006; offices of
Cadwalader, Xxxxxxxxxx & Xxxx, LLP,
New York, New York; 10:00 a.m. New
York City time.
Purchase Price for the Offered
Certificates:
Class Percent of Initial Aggregate
Principal Balance
Classes B-1, B-2 and B-3 [ ]%
In each case, as offered and sold pursuant to this Terms Agreement, plus
accrued interest, if applicable, thereon.
Notwithstanding any other provision of the above-referenced Underwriting
Agreement, all references to the Registration Statement in the Underwriting
Agreement shall be with reference to File No. 333-129159.
Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in the above-referenced Underwriting
Agreement (which is incorporated herein in its entirety and made a part hereof)
as supplemented by this Terms Agreement, the Depositor agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Depositor, the
Offered Certificates.
The Underwriter has been retained solely to act as underwriter in
connection with the sale of the Offered Certificates to investors (including the
establishment of the price of the Offered Certificates to investors), and no
fiduciary, advisory or agency relationship between Depositor and the Underwriter
has been created in respect of any of the transactions contemplated by this
Terms Agreement, irrespective of whether the Underwriter has advised or is
advising Depositor on other matters.
* * *
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 the Depositor, Xxxxx Fargo Bank, N.A. and the Underwriter.
Very truly yours,
XXXXX FARGO ASSET SECURITIES
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
The foregoing Terms Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxxxxx Xxxx
-----------------------------------
(Xxxxxxx, Xxxxx & Co.)
