Exhibit 1.2
Execution Copy
XXXXX FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
Effective as of February 1, 2006
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
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
Xxxxxx Xxxxxxx & Co., Incorporated, 0000 Xxxxxxxx, 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/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Date: February 1, 2006
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Date: February 1, 2006
The foregoing Underwriting
Agreement is hereby confirmed and
accepted as of the date first above
written.
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
Date: February 1, 2006
Exhibit A
XXXXX FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
Form of Terms Agreement
____________, 20__
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Underwriting Agreement dated February 1, 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 X-0, X-0 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 [ ]% per annum (or as described in the prospectus supplement).
to the Servicer):
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 X-0, X-0 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.
XXXXXX XXXXXXX & CO. INCORPORATED
By:
--------------------------------------------------
Name:
----------------------
Title:
----------------------
Execution Copy
XXXXX FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
TERMS AGREEMENT
February 1, 2006
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Underwriting Agreement dated February 1, 2006
Title of Certificates: Mortgage Pass-Through Certificates, Series 2006-AR3,
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 $20,181,000 (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 X-0, X-0 and B-3 $100,000 $1,000
Description of the Mortgage Loans: A pool 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 7, 2006
Delivery of Final Prospectus (if the final structure is
not delivered to the Depositor by the Final Structure
Due Date):
Final Structure Delivered to the Depositor Delivery of Final Prospectus to Underwriter
------------------------------------------ -------------------------------------------
By February 13, 2006: One Business Day before Closing Date.
By February 16, 2006: Closing Date.
By February 17, 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 the Servicer): 0.250% per annum (or as described in 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 Fitch Ratings
("Fitch"):
Class Fitch
----- -----
Class B-1 AA
Class B-2 A
Class B-3 BBB
Closing Date, Location and Time: February 27, 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 X-0, X-0 and B-3 [__]%
In each case, as offered and sold pursuant to this Terms Agreement,
plus accrued interest, if applicable, thereon.
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.
The Underwriter hereby represents and agrees that, with respect to the
United Kingdom:
a. it has only communicated or caused to be communicated
and will only communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the Financial Services and Markets Act) received by it in
connection with the issue or sale of the Certificates in circumstances
in which Section 21(1) of the Financial Services and Markets Act does
not apply to the Seller; and
b. it has complied and will comply with all applicable
provisions of the Financial Services and Markets Act with respect to
anything done by it in relation to the Certificates in, from or
otherwise involving the United Kingdom.
In relation to each Member State of the European Economic Area which
has implemented the Prospectus Directive (each, a "Relevant Member State"), the
Underwriter hereby represents and agrees that with effect from and including the
date on which the Prospectus Directive is implemented in that Relevant Member
State (the "Relevant Implementation Date") it has not made and will not make an
offer of the Certificates to the public in that Relevant Member State prior to
the publication of a prospectus in relation to the Certificates which has been
approved by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance with the
Prospectus Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of the Certificates to the public in
that Relevant Member State at any time:
a. to legal entities which are authorized or regulated
to operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in securities;
b. to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year; (2) a
total balance sheet of more than (euro)43,000,000 and (3) an annual net
turnover of more than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
c. in any other circumstances which do not require the
publication by the Depositor of a prospectus pursuant to Article 3 of
the Prospectus Directive.
For the purposes of this representation, the expression an "offer of
the Certificates to the public" in relation to any Certificates in any Relevant
Member State means the communication in any form and by any means of sufficient
information on the terms of the offer and the Certificates to be offered so as
to enable an investor to decide to purchase or subscribe the Certificates, as
the same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State and the expression "Prospectus
Directive" means Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
* * *
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/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
The foregoing Terms Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
