Exhibit 1.1
XXXXX FARGO ASSET SECURITIES CORPORATION
Asset-Backed Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
Dated as of [_____], 200[_]
[Underwriter]
[Address]
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
Asset-Backed 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 Asset-Backed Certificates may be offered through you, as
underwriter (the "Underwriter"). Whenever WFASC determines to make an offering
of a series of its Asset-Backed 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 Asset-Backed Certificates to the Underwriter.
WFASC is a wholly-owned subsidiary of Xxxxx Fargo Bank. The Asset-Backed
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
Asset-Backed 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 of mortgage loans
acquired by WFASC (the "Mortgage Loans") and related property (collectively, the
"Trust Fund"). The Mortgage Loans will be of the type described in, and will
have the characteristics and aggregate principal balance set forth in, the
Issuer Free Writing Prospectus and the Prospectus Supplement (in each case 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 servicer (in such capacity, the
"Servicer"), the trustee identified in the applicable Terms Agreement, as
trustee (the "Trustee") and, if applicable, the securities administrator
identified in the applicable Terms Agreement, as securities administrator (the
"Securities Administrator") and, if applicable, the credit risk manager (the
"Credit Risk Manager") identified in the Terms Agreement. 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 Issuer Free Writing Prospectus 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 in substantially
the form of Exhibit A hereto. Each offering of Asset-Backed Certificates under
this Underwriting Agreement will be governed by this Underwriting Agreement, as
supplemented by the applicable Terms Agreement. This Underwriting Agreement, as
supplemented by the applicable Terms Agreement, is referred to herein as this
"Agreement".
1. Representations and Warranties. (a) WFASC represents and warrants
to, and agrees with, the Underwriter as of the date of the applicable Terms
Agreement that:
(i) A registration statement (with the file number set forth
in the related Terms Agreement), 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
and 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 Registration Statement ,
the Prospectus or the Time of Sale Information or any revision or
amendment thereof or supplement thereto. The Time of Sale Information
(as defined in Section 7(f) below), as amended or supplemented, will
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, in either
case at the Time of Sale to the applicable investor; provided, however,
that WFASC makes no representations, warranties or agreements as to the
information contained in or omitted from the Time of Sale Information
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 Registration Statement, the Prospectus or
the Time of Sale Information or any revision or amendment thereof or
supplement thereto.
(iii) Assuming that it is rated at the time of issuance in one
of the two highest rating categories by a nationally recognized
statistical rating organization, each Certificate designated as a
"mortgage related security" in the Prospectus Supplement will, at the
time of issuance, 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 Issuer Free
Writing Prospectus and 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 Issuer Free Writing Prospectus and
the Prospectus and, assuming the valid execution thereof by the parties
to the Pooling and Servicing Agreement (other than WFASC), 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 Issuer Free Writing Prospectus
and 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 Securities 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 Fund pursuant thereto, free and
clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim
or other security interest (collectively, "Liens"), except to the
extent permitted in the Pooling and Servicing Agreement, and will not
have assigned to any person other than the Trust Fund any of its right,
title or interest in the Mortgage Notes. WFASC will have the power and
authority to transfer the Mortgage Notes to the Trust Fund and to
transfer the Certificates to the Underwriter, and, upon execution and
delivery to the Trustee of the Pooling and Servicing Agreement, payment
by the Underwriter for the Certificates, and delivery to the
Underwriter of the Certificates, the Trust Fund will own the Mortgage
Notes and the Underwriter will acquire title to the Certificates, in
each case free of Liens except to the extent permitted by the Pooling
and Servicing Agreement.
(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 Securities 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 Fund 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 acknowledges and agrees that (i) the purchase and
sale of the Certificates pursuant to this Agreement is an arm's-length
commercial transaction between WFASC and Xxxxx Fargo Bank on the one
hand, and the Underwriter, on the other, (ii) in connection therewith
and with the process leading to such transaction, the Underwriter is
acting solely as a principal and not the agent or fiduciary of WFASC,
(iii) the Underwriter has not assumed an advisory or fiduciary
responsibility in favor of WFASC with respect to the offering
contemplated hereby or the process leading thereto (irrespective of
whether the Underwriter has advised or is currently advising WFASC on
other matters) or any other obligation to WFASC except the obligations
expressly set forth in this Agreement and (iv) WFASC has consulted its
own legal advisors to the extent it deemed appropriate.
(xv) 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 the Issuer
Free Writing 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.
(v) Xxxxx Fargo Bank acknowledges and agrees that (i) the
purchase and sale of the Certificates pursuant to this Agreement is an
arm's-length commercial transaction between WFASC and Xxxxx Fargo Bank,
on the one hand, and the Underwriter, on the other, (ii) in connection
therewith and with the process leading to such transaction, the
Underwriter is acting solely as a principal and not the agent or
fiduciary of Xxxxx Fargo Bank, (iii) Underwriter has not assumed an
advisory or fiduciary responsibility in favor of Xxxxx Fargo Bank with
respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether the Underwriter has advised or is
currently advising Xxxxx Fargo Bank on other matters) or any other
obligation to Xxxxx Fargo Bank except the obligations expressly set
forth in this Agreement and (iv) Xxxxx Fargo Bank has consulted its own
legal advisors to the extent it deemed appropriate.
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. (a) It is understood that the Underwriter
proposes to offer the Certificates for sale as set forth in the Time of Sale
Information and 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.
(b) 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 Issuer Free Writing Prospectus and
the Prospectus Supplement.
(c) 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(a)), 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 Underwriter 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.
(d) The Underwriter represents and warrants to, and agrees with, WFASC,
as of the date of the applicable Terms Agreement and as of the Closing Date,
that:
(i) In relation to each Member State of the European Economic
Area which has implemented the Prospectus Directive (each, a "Relevant Member
State"), it has not made and will not make an offer of 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 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 issuer of a prospectus pursuant to Article 3 of
the Prospectus Directive.
For the purposes of this representation, the expression an
"offer of 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 the European Commission Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member State.
(ii) 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 United
Kingdom Financial Services and Markets Act 2000 (the "FSMA")) received by it in
connection with the issue or sale of the Certificates in circumstances in which
Section 21(1) of the FSMA does not apply to the issuer.
(iii) It has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to the
Certificates in, from or otherwise involving the United Kingdom.
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 under applicable law 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, any Issuer Free Writing 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 letters to be delivered pursuant to Section 6(g) hereof, (iv) the fees
and expenses of the Trustee, the Securities Administrator, if applicable, and
any agent of the Trustee or the Securities Administrator, if applicable, and the
fees and disbursements of counsel for the Trustee and the Securities
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 Servicer to, furnish to the
Underwriter, as soon as available, a copy of (i) the annual statement of
compliance delivered by the Servicer to the Trustee or the Securities
Administrator under the Pooling and Servicing Agreement, (ii) the annual
independent public accountants' servicing report furnished to the Trustee or the
Securities Administrator 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 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, at the request of the Underwriter, 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 Fund (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;
(xii) Assuming that it is rated at the time of issuance in one
of the two highest rating categories by a nationally recognized
statistical rating organization, each Certificate designated as a
"mortgage related security" in the Prospectus Supplement will, at the
time of issuance, be a "mortgage related security" as such term is
defined in Section 3(a)(41) of the Exchange Act; and
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 Servicer shall have furnished to the Underwriter an opinion,
dated the Closing Date, of counsel to the Servicer (who may be an employee of
the Servicer), to the effect that:
(i) The 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
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 Servicer, enforceable against the 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 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 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 Servicer, any indenture or other agreement or instrument to
which the Servicer is a party or by which it is bound, any federal
statute or regulation applicable to the 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
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 Servicer is a party, or threatened
against the 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 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 servicing
activities of the 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 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, the
Issuer Free Writing Prospectus 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 letter from WFASC's Independent Accountants
dated as of or prior to the date of first use of the Issuer Free Writing
Prospectus 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 Issuer Free Writing Prospectus (other
than static pool information, if any, provided pursuant to Item 1105 of
Regulation AB under the Act), (iii) 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 (iv) a bring down
letter, dated the date of the Prospectus Supplement, from the Independent
Accountants with respect to the letter described in clause (iii), 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, 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 Issuer Free Writing Prospectus and 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 any rating of the
Certificates has been placed under review (otherwise than for possible
upgrading).
(j) 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.
(k) 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.
(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) The Underwriter shall have received a letter from counsel to WFASC,
dated the date of the Closing Date, to the effect that in the course of such
counsel's review of the Issuer Free Writing Prospectus, no facts came to the
attention of such counsel that caused such counsel to believe that as of the
Time of Sale, the Issuer Free Writing Prospectus included an untrue statement of
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that such counsel need express no view
as to any blanks or bracketed items in the Issuer Free Writing Prospectus, or
any financial, numerical, statistical or quantitative data contained in or
omitted from the Issuer Free Writing Prospectus or any material incorporated by
reference in the Issuer Free Writing Prospectus.
(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
the Issuer Free Writing 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 Issuer Free Writing Prospectus or any Issuer
Information contained in any Free Writing Prospectus (other than any Issuer Free
Writing Prospectus); 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, the
Issuer Free Writing 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, 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 Time of Sale Information;
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 the Issuer Free Writing Prospectus supplied by WFASC to the
Underwriter which, in any case, 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 deliver
the Issuer Free Writing Prospectus to the applicable investor prior to the Time
of Sale. This indemnity agreement will be in addition to any liability which the
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Section 7. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation by the indemnified party undertaken with
notice to and approval by the indemnifying party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to (A) in subsection (a)(i) 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 (a)(ii) or
(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 (as defined in Section 9(b)) 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, and "Time of Sale Information"
means all information identified in the applicable Terms Agreement as "Time of
Sale Information."
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 (including its contribution
obligation) 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) 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"). 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."
(b) WFASC shall prepare a Free Writing Prospectus (the "Issuer Free
Writing Prospectus") and shall deliver such Issuer Free Writing Prospectus to
the Underwriter after it files such Issuer Free Writing Prospectus with the
Commission and the Underwriter shall not convey or deliver such Issuer Free
Writing Prospectus to any person or entity until WFASC has notified the
Underwriter that it has completed such filing. Thereafter, the Issuer Free
Writing Prospectus may be used by the Underwriter solely in connection with the
marketing of the Certificates to institutional investors; provided however, the
Underwriter shall not enter into any "contract of sale" with any investor,
within the meaning of Rule 159 under the Act (a "Contract of Sale"), with
respect to any Certificates, unless prior to the Time of Sale to each investor
in the Certificates, the Underwriter shall have delivered to such investor the
Issuer Free Writing Prospectus and any additional Time of Sale Information,
together with any amendment or supplement thereto supplied by WFASC to the
Underwriter sufficiently prior to the Time of Sale to such investor to
reasonably permit delivery thereof by the Underwriter to such investor.
(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) Not later than one business day after the Underwriter
has determined the final structure of all classes of Certificates, and
in no event later than the fourth business day preceding the due date
for filing the final Prospectus pursuant to Rule 424(b) under the Act,
the Underwriter shall prepare and deliver to WFASC an Underwriter Free
Writing Prospectus (which may consist of a term sheet) containing a
description of the final structure of the Certificates, irrespective of
whether such Underwriter Free Writing Prospectus has been or will be
conveyed or delivered by the Underwriter to any investor in the
Certificates.
(iv) To facilitate the filing thereof by WFASC, the
Underwriter shall provide the Issuer Information contained in any
Underwriter Free Writing Prospectus that is required to be delivered to
WFASC pursuant to this Section 9(c) in a separate document from the
portion of such Free Writing Prospectus which contains information
other than Issuer Information.
(d) The Underwriter represents and warrants to WFASC that the
Underwriter Free Writing Prospectuses required to be furnished to WFASC by the
Underwriter pursuant to Section 9(c) will constitute all Underwriter Free
Writing Prospectuses of the type described therein that were furnished to
prospective investors by the Underwriter in connection with its offer and sale
of the Certificates.
(e) The Underwriter represents and warrants to WFASC that each
Underwriter Free Writing Prospectus provided by it to an investor in the
Certificates did not, as of the Time of Sale to any prospective investor to
which such Underwriter Free Writing Prospectus was conveyed, include any untrue
statement of a material fact or omit any material fact necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading when considered in conjunction with the Time of Sale
Information; provided however, that the Underwriter makes no representation to
the extent such misstatements or omissions were the result of any misstatements
that are a substantial restatement in all material respects of a misstatement
made in the Issuer Free Writing Prospectus which misstatements were not
corrected by information subsequently supplied by WFASC sufficiently prior to
the Time of Sale to the applicable investor to reasonably permit delivery
thereof by the Underwriter to such investor.
(f) Unless WFASC determines that such filing is not required under Rule
433, WFASC agrees to file with the Commission, within the applicable time
periods specified in Rule 433, the following:
(i) Any Issuer Free Writing Prospectus; and
(ii) Any Underwriter Free Writing Prospectus delivered by the
Underwriter to WFASC pursuant to Section 9(c) or, at the election of
WFASC, the portion of such Underwriter Free Writing Prospectus which
consists of Issuer Information.
(g) The Underwriter shall file with the Commission, within the
applicable time period specified in Rule 433, any Free Writing Prospectus that
is distributed by or on behalf of the Underwriter in a manner reasonably
designed to lead to its broad, unrestricted dissemination.
(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]
The asset-backed securities referred to in these materials,
and the asset pools backing them, are subject to modification
or revision (including the possibility that one or more
classes of securities may be split, combined or eliminated at
any time prior to issuance or availability of a final
prospectus) and are offered on a "when, as and if issued"
basis. You understand that, when you are considering the
purchase of these securities, a contract of sale will come
into being no sooner than the date on which the relevant class
has been priced and the underwriter has confirmed the
allocation of securities to be made to you; any "indications
of interest" expressed by you, and any "soft circles"
generated by the underwriter, will not create binding
contractual obligations for you, the underwriter or us.
(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) The Underwriter agrees to keep and maintain, for a period of
not less than three years following the date of initial issuance of the
Certificates, written records documenting, as to each investor in Certificates,
the Time of Sale and the date on which each Issuer Free Writing Prospectus and
each Underwriter Free Writing Prospectus was conveyed to such investor.
(ii) In the event of any litigation or written notice of
potential litigation against WFASC or any of its affiliates with respect to the
Certificates, the Underwriter shall, upon the request of WFASC, make available
to WFASC copies of all records required to be maintained by it pursuant to
Section 9(j)(i) and any Free Writing Prospectus required to be retained by it
pursuant to Section 9(i).
(k) [Reserved]
(l) (i) In the event that WFASC becomes aware that the Issuer Free
Writing Prospectus contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading (such Free Writing Prospectus, a "Defective Issuer Free Writing
Prospectus"), WFASC shall notify the Underwriter thereof within one business day
after discovery and WFASC shall prepare and deliver to the Underwriter a Free
Writing Prospectus which corrects the material misstatement or omission in the
Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing
Prospectus, a "Corrected Issuer Free Writing Prospectus").
(ii) In the event that the Underwriter becomes aware that, as
of the applicable Time of Sale to an investor in the Certificates, any
Underwriter Free Writing Prospectus prepared by or on behalf of the Underwriter
and delivered to such investor contained any untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading, when considered in conjunction with the Time of Sale Information
(such Free Writing Prospectus, a "Defective Underwriter Free Writing Prospectus
and, together with a Defective Issuer Free Writing Prospectus, a "Defective Free
Writing Prospectus"), the Underwriter shall notify WFASC thereof within one
business day after discovery.
(iii) The Underwriter shall, if requested by WFASC:
(A) prepare a Free Writing Prospectus which corrects
the material misstatement in or omission from the Defective
Underwriter Free Writing Prospectus (such corrected
Underwriter Free Writing Prospectus, a "Corrected Underwriter
Free Writing Prospectus" and, together with a Corrected Issuer
Free Writing Prospectus, a "Corrected Free Writing
Prospectus");
(B) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a Contract of Sale;
(C) provide such investor with the following:
(1) adequate disclosure of the contractual
arrangement;
(2) adequate disclosure of the investor's
rights under the existing Contract of Sale
at the time termination is sought;
(3) adequate disclosure of the new
information that is necessary to correct the
misstatements or omissions in the
information given at the time of the
original Contract of Sale; and
(4) a meaningful ability to elect to
terminate or not terminate the prior
Contract of Sale and to elect to enter into
or not enter into a new Contract of Sale;
and
(D) comply with any other requirements for
reformation of the original Contract of Sale described in
Section IV.2.c of Securities Act Release Act 33-8591.
(m) The Underwriter covenants with WFASC that it will make available to
WFASC, upon reasonable prior notice and at reasonable times during normal
business hours, such personnel as are familiar with the Underwriter's compliance
procedures for the purpose of answering questions concerning the Underwriter's
practices and procedures for the preparation and dissemination of Written
Communications concerning the Certificates to prospective investors prior to the
delivery of the final Prospectus to such investors.
(n) The Underwriter covenants with WFASC that after the final
Prospectus is available, the Underwriter shall not distribute any Written
Communication concerning the Certificates to a prospective investor unless such
communication is preceded or accompanied by the final Prospectus.
(o) The Underwriter agrees, upon request of WFASC, to provide to WFASC
any information within the control of the Underwriter which WFASC may reasonably
request to enable WFASC to timely and accurately meet its disclosure and
reporting obligations under the Act and the Exchange Act.
(p) The Underwriter agrees to cause any credit enhancement provider,
derivative counterparty, special servicer or credit risk manager 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. In addition, upon request by WFASC, the Underwriter
agrees to cause the party providing the information required by the immediately
preceding sentence to provide indemnity satisfactory to WFASC relating to such
disclosure and financial information.
(q) 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
[____________________] 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 Fargo Bank at 0 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx
00000-0000, Attn: Office of General Counsel, Xxxxx Fargo Home Mortgage division.
* * *
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: __________________________
Name:
Title:
XXXXX FARGO BANK, N.A.
By: __________________________
Name:
Title:
The foregoing Underwriting
Agreement is hereby confirmed and
accepted as of the date first above
written.
[UNDERWRITER]
By: __________________________
Name:
Title:
Exhibit A
XXXXX FARGO ASSET SECURITIES CORPORATION
Asset-Backed Certificates
FORM OF TERMS AGREEMENT
[Underwriter] ____________, 20__
Underwriting Agreement dated [____], 2006.
Title of Certificates: Asset-Backed Certificates, Series 200_-,
(Classes) (the "Offered Certificates").
Underwriter: [____________]
Classes of Certificates: Each of the Class A and Class M
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 of the $_________(Approximate)
Offered Certificates:
Certificates Not Offered Hereby: The Class [___] Certificates (the "Other
Certificates").
Subordination: [_________].
Time of Sale Information: [_________].
Minimum Denominations of Offered
Certificates:
Class Minimum Denomination Incremental Denomination
----- -------------------- ------------------------
Classes A $ 25,000 $1,000
Classes M $ [ ] $1,000
Description of the Mortgage Loans: Fixed and adjustable interest rate, monthly pay, one-
to four-family, subprime 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 the [___] % per annum (or as described in the prospectus
Servicer): supplement).
Fixed Retained Yield: [Yes][No].
Trustee:
[Securities Administrator:] [_________________]
Independent Accounts:
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: [_____]
Required Ratings: [Ratings]
Mortgage related securities: [_____]
Registration File Number: [333-_____]
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 Offered Certificates:
In each case, as offered and sold pursuant to this Terms Agreement.
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.
* * *
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.
[UNDERWRITER]
By:
------------------------------------
Name:
Title:
