Exhibit 1.1
XXXXX FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
Effective as of February 15, 2006
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxx Fargo Asset Securities Corporation, a Delaware corporation
("WFASC" or the "Seller") proposes to issue and sell from time to time its
Mortgage Pass-Through Certificates in various series, each series of which may
be divided into classes, in one or more offerings on terms determined at the
time of sale. One or more series of Mortgage Pass-Through Certificates may be
offered through you, as underwriter (the "Underwriter"). Whenever WFASC
determines to make an offering of a series of its Mortgage Pass-Through
Certificates through the Underwriter, WFASC and Xxxxx Fargo Bank, N.A., a
national banking association (in such capacity, "Xxxxx Fargo Bank"), will enter
into an agreement (the "Terms Agreement") with the Underwriter, in substantially
the form attached hereto as Exhibit A, providing for the sale of such series of
Mortgage Pass-Through Certificates to the Underwriter. WFASC is a wholly-owned
subsidiary of Xxxxx Fargo Bank. The Mortgage Pass-Through Certificates of the
series and classes to be sold in each offering to the Underwriter under this
Underwriting Agreement, as supplemented by the applicable Terms Agreement, are
hereinafter referred to as the "Certificates." The Mortgage Pass-Through
Certificates of the same series that are not being sold in each offering to the
Underwriter under this Underwriting Agreement are hereinafter referred to as the
"Other Certificates." The Certificates will have the characteristics set forth
in the applicable Terms Agreement and will evidence the ownership interests in a
trust consisting of a pool (the "Mortgage Pool") of mortgage loans acquired by
WFASC (the "Mortgage Loans") and related property but excluding the Fixed
Retained Yield, if any, specified in the Terms Agreement (collectively, the
"Trust Estate"). The Mortgage Loans will be of the type described in, and will
have the characteristics and aggregate principal balance set forth in, the
Prospectus Supplement (as hereinafter defined).
The Certificates will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of the close of
business on the date specified in the applicable Terms Agreement, by and among
WFASC, as depositor, Xxxxx Fargo Bank, as master servicer (in such capacity, the
"Master Servicer"), the trustee identified in the applicable Terms Agreement, as
trustee (the "Trustee") and, if applicable, the trust administrator identified
in the applicable Terms Agreement, as trust administrator (the "Trust
Administrator"). The Certificates will be issued in denominations of $25,000, or
such lesser or greater amounts as may be specified in the applicable Terms
Agreement, and will have the terms set forth in the Prospectus Supplement. The
Certificates will conform in all material respects to the description thereof
contained in the applicable Terms Agreement and the Prospectus Supplement. The
Terms Agreement may take the form of an exchange of any standard form of written
communication among the Underwriter, WFASC and Xxxxx Fargo Bank. Each offering
of Mortgage Pass-Through Certificates under this Underwriting Agreement will be
governed by this Underwriting Agreement, as supplemented by the applicable Terms
Agreement. This Underwriting Agreement, as supplemented by the applicable Terms
Agreement, is referred to herein as this "Agreement."
1. Representations and Warranties. (a) WFASC represents and warrants to,
and agrees with, the Underwriter as of the date of the applicable Terms
Agreement that:
(i) A registration statement (File No. 333-129159), 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, including for these purposes any portion of the Applicable Static
Pool Information (as defined in Section 9(b)(i)) deemed not part of the
Registration Statement or the Prospectus on account of Item 1105(d) of
Regulation AB under the Act, 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 Prospectus or any revision or
amendment thereof or supplement thereto. The Issuer Free Writing
Prospectus (as defined in Section 9(b)(i)), 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 (as defined in Section 7(f)) to the
applicable investor, when considered in conjunction with the Time of
Sale Information (as defined in Section 7(f)), provided, however, that
no representation is made as to the effect of the exclusion from the
Issuer Free Writing Prospectus of any information of the type specified
in Exhibit B hereto as Supplemental Information.
(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. (a) 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.
(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 Prospectus Supplement.
(c) The Underwriter 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 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 cause 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 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 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, including for these
purposes any portion of the Applicable Static Pool Information deemed not part
of the Registration Statement or the Prospectus on account of Item 1105(d) of
Regulation AB under the Act, 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 (as defined
in Section 9(b)(i)) or in any preliminary or final quantitive data about the
Mortgage Loans ("Mortgage Loan Data") supplied by WFASC to the Underwriter, or
(iii) in the case of an Issuer Free Writing Prospectus, the omission or alleged
omission to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or (iv)
in the case of the Mortgage Loan Data delivered by WFASC to the Underwriter, the
omission or alleged omission to include material data therein necessary to make
the data therein not misleading, in the case of (ii), (iii) or (iv), at the Time
of Sale to the applicable investor, when considered in conjunction with the Time
of Sale Information, 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 (A) any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to WFASC by
or on behalf of the Underwriter specifically for use in connection with the
preparation thereof or (B) any omission or alleged omission to state a material
fact in the Issuer Free Writing Prospectus necessary to make the statements
therein not misleading at the Time of Sale to the applicable investor, when
considered in conjunction with the Time of Sale Information, as a result of the
exclusion from the Issuer Free Writing Prospectus of any information of the type
specified in Exhibit B hereto as Supplemental Information. 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, 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 (other than omissions which are the subject of Section 7(b)(B) below)
or any Mortgage Loan Data 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 omission or alleged omission to state a material fact in any Issuer Free
Writing Prospectus necessary to make the statements made therein, in 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, as a result of the exclusion from the Issuer Free Writing
Prospectus of any information of the type specified in Exhibit B as Supplemental
Information or (C) 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 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)(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), (iii), (iv) 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)(ii)) 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 with respect to the offering of the Certificates which has
been conveyed to an investor at the Time of Sale to such investor.
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) 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."
(b) (i) WFASC shall deliver to the Underwriter, not later than two
business days following the Bid Date, a Free Writing Prospectus which contains
general information about the offering, including the basic senior/subordinate
structure of the Certificates (excluding the subdivision of the senior classes
into tranches), the subordination percentage for the senior Certificates and the
publicly offered subordinated Certificates, to the extent known by WFASC, the
expected parameters of the Mortgage Pool, risk factors applicable to Mortgage
Loans of the type included in the Mortgage Pool, the identity of and material
information about transaction parties known to WFASC, the material tax and ERISA
treatment of the Certificates and whether the Certificates will be "mortgage
related securities" as defined in Section 3(a)(41) of the Exchange Act, and
which contains a hyperlink to the Base Prospectus most recently filed by WFASC
with the Commission and a hyperlink to the portion of WFASC's static pool
website containing static pool information (such information, the "Applicable
Static Pool Information") with respect to the series of Certificates (as
determined by WFASC) (the "Issuer Free Writing Prospectus").
(ii) WFASC will endeavor to file the Issuer Free Writing
Prospectus with the Commission not later than two business days
following the Bid Date, and the Underwriter shall not convey or deliver
the Issuer Free Writing Prospectus to any person or entity until WFASC
has notified the Underwriter that it has completed such filing.
Thereafter, the Issuer Free Writing Prospectus may be used by the
Underwriter solely in connection with the marketing of the Certificates
to institutional investors; provided however, the Underwriter shall not
enter into any "contract of sale" with any investor, within the meaning
of Rule 159 under the Act (a "Contract of Sale"), with respect to any
Certificates, unless prior to the Time of Sale to each investor in the
Certificates, the Underwriter shall have (A) delivered to such investor
the Issuer Free Writing Prospectus, together with any amendment or
supplement thereto supplied by WFASC to the Underwriter sufficiently
prior to the Time of Sale to such investor to reasonably permit delivery
thereof by the Underwriter to such investor and (B) provided to such
investor such of the Supplemental Information described in Exhibit B
hereto that is then known or available to the Underwriter as the
Underwriter, in the exercise of its judgment, shall have concluded is
required to make the Issuer Free Writing Prospectus, when considered in
conjunction with the Time of Sale Information, not misleading.
(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 or
warranty to the extent such misstatements or omissions were the result of any
misstatements in or omissions from the Mortgage Loan Data supplied by WFASC to
the Underwriter which misstatements or omissions were not corrected by
information subsequently supplied by WFASC to the Underwriter sufficiently prior
to the Time of Sale to the applicable investor to reasonably permit the delivery
thereof by the Underwriter to such investor or, to the extent that such
misstatements are a substantial restatement in all material respects of a
misstatement made in the Issuer Free Writing Prospectus or such omissions are
the result of omission from the Issuer Free Writing Prospectus (other than
omissions which are the subject of Section 7(b)(B)) which misstatements or
omissions were not corrected by information subsequently supplied by WFASC
sufficiently prior to the Time of Sale to the applicable investor to reasonably
permit delivery thereof by the Underwriter to such investor.
(f) Unless WFASC determines that such filing is not required under Rule
433, WFASC agrees to file with the Commission, within the applicable time
periods specified in Rule 433, the following:
(i) Any Issuer Free Writing Prospectus; and
(ii) Any Underwriter Free Writing Prospectus delivered by the
Underwriter to WFASC pursuant to Section 9(c) or, at the election of
WFASC, the portion of such Underwriter Free Writing Prospectus which
consists of Issuer Information.
(g) The Underwriter shall file with the Commission, within the
applicable time period specified in Rule 433, any Free Writing Prospectus that
is distributed by or on behalf of the Underwriter in a manner reasonably
designed to lead to its broad, unrestricted dissemination. Any access codes or
passwords needed by the Underwriter to complete the filing shall be provided by
WFASC.
(h) WFASC and the Underwriter each agrees that any Free Writing
Prospectuses prepared by it shall contain substantially the following legend:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information
about the depositor and this offering. You may get these
documents for free by visiting 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 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) (i) The Underwriter will not enter into, and the Underwriter will
obligate in writing each dealer to whom it sells any Certificates (which
obligation may be in the form of a trade stipulation and which, in any event,
shall name WFASC as an intended third party beneficiary) not to enter into, any
Contract of Sale with respect to the Certificates with any investor other than
an institutional investor, unless the Underwriter or such dealer has delivered
to such investor a copy of the final Prospectus.
(ii) The Underwriter shall not enter into any Contract of Sale
with respect to the Certificates with any institutional investor unless
the Underwriter complies with the prospectus delivery and notice
requirements of Rules 172 and 173 under the Act.
(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 (other than as the result of the exclusion from the Issuer Free
Writing Prospectus of information of the type specified in Exhibit B hereto as
Supplemental Information) (such Free Writing Prospectus, a "Defective Issuer
Free Writing Prospectus"), WFASC shall notify the Underwriter thereof within one
business day after discovery and WFASC shall prepare and deliver to the
Underwriter a Free Writing Prospectus which corrects the material misstatement
or omission in the Defective Issuer Free Writing Prospectus (such corrected
Issuer Free Writing Prospectus, a "Corrected Issuer Free Writing Prospectus").
(ii) In the event that the Underwriter becomes aware that, as of
the applicable Time of Sale to an investor in the Certificates, any
Underwriter Free Writing Prospectus prepared by or on behalf of the
Underwriter and delivered to such investor contained any untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained therein, in light of
the circumstances under which they were made, not misleading, when
considered in conjunction with the Time of Sale Information (such Free
Writing Prospectus, a "Defective Underwriter Free Writing Prospectus
and, together with a Defective Issuer Free Writing Prospectus, a
"Defective Free Writing Prospectus"), the Underwriter shall notify WFASC
thereof within one business day after discovery.
(iii) The Underwriter shall, if requested by WFASC:
(A) prepare a Free Writing Prospectus which corrects the
material misstatement in or omission from the Defective
Underwriter Free Writing Prospectus (such corrected Underwriter
Free Writing Prospectus, a "Corrected Underwriter Free Writing
Prospectus" and, together with a Corrected Issuer Free Writing
Prospectus, a "Corrected Free Writing Prospectus");
(B) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a Contract of Sale;
(C) provide such investor with the following:
(1) adequate disclosure of the contractual
arrangement;
(2) adequate disclosure of the investor's rights
under the existing Contract of Sale at the time
termination is sought;
(3) adequate disclosure of the new information that
is necessary to correct the misstatements or
omissions in the information given at the time of
the original Contract of Sale; and
(4) a meaningful ability to elect to terminate or
not terminate the prior Contract of Sale and to
elect to enter into or not enter into a new Contract
of Sale; and
(D) comply with any other requirements for reformation
of the original Contract of Sale described in Section IV.2.c of
Securities Act Release Act 33-8591.
(iv) In the event that the Defective Free Writing Prospectus was
an Issuer Free Writing Prospectus, and the Underwriter shall in good
faith incur any reasonable costs in connection with the reformation or
termination of the Contract of Sale, WFASC agrees to reimburse the
Underwriter for such costs promptly following presentation of reasonably
detailed documentation of such costs to WFASC. The Underwriter agrees to
use best efforts to mitigate such costs.
(m) The Underwriter covenants with WFASC that it will make available to
WFASC, upon reasonable prior notice and at reasonable times during normal
business hours, such personnel as are familiar with the Underwriter's compliance
procedures for the purpose of answering questions concerning the Underwriter's
practices and procedures for the preparation and dissemination of Written
Communications concerning the Certificates to prospective investors prior to the
delivery of the final Prospectus to such investors.
(n) The Underwriter covenants with WFASC that after the final Prospectus
is available, the Underwriter shall not distribute any Written Communication
concerning the Certificates to a prospective investor unless such communication
is preceded or accompanied by the final Prospectus. The foregoing covenant shall
not apply to any secondary market offers or sales of the Certificates by the
Underwriter.
(o) The Underwriter agrees, upon request of WFASC, to provide to WFASC
any information within the control of the Underwriter which WFASC may reasonably
request to enable WFASC to timely and accurately meet its disclosure and
reporting obligations under the Act and the Exchange Act.
(p) The Underwriter agrees to cause any credit enhancement provider,
derivative counterparty, special servicer or credit risk manager 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.
(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
Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or if sent to WFASC, will be delivered to WFASC at 0000 Xxx Xxxxxxxxxx Xxx,
Xxxxxxxxx, Xxxxxxxx 00000; or if sent to Xxxxx Fargo Bank, will be delivered to
Xxxxx Xxxxx Xxxx xx 0 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000.
* * *
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement by
and among WFASC, Xxxxx Fargo Bank and the Underwriter, effective as of the date
first above written and executed as of the date or dates indicated below.
Very truly yours,
XXXXX FARGO ASSET SECURITIES
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Date: April 24, 2006
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Date: April 24, 2006
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxx Xxxxx
------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Date: April 24, 2006
Exhibit A
XXXXX FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
Form of Terms Agreement
________, 20__
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Underwriting Agreement dated February 15, 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 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 A $ 25,000 $1,000
Class A-IO $ [_____________] $1,000
Classes A-R $ 100 N/A
Classes B-1, B-2 and B-3 $ 100,000 $1,000
Description of the Mortgage Loans: Fixed interest rate,
conventional, monthly pay, fully
amortizing, one- to four-family,
residential first mortgage loans
having original stated terms to
maturity of approximately [_]
years.
REMIC Election: Yes.
Cut-Off Date: ___________ 1, 20___
Final Structure Due Date: ___________ ___, 20___
Distributions: Distributions will be made
monthly on the 25th day of each
month or the next succeeding
Business Day (the "Distribution
Date").
Servicing Fee (Monthly fee payable [___] % per annum (or as described
to the Servicer): in theprospectus supplement).
Master Servicing Fee (Monthly fee [_]% per annum.
payable to the Master Servicer):
Fixed Retained Yield: [Yes][No].
Trustee:
[Trust Administrator: [______________]
Independent Accountants:
Book-Entry Registration: Settlement in "same-day" funds,
to the extent practicable. REMIC
residual certificates will not be
issued in book-entry form, unless
authorized by the Seller.
Optional Termination: The Seller will have the right to
repurchase all remaining Mortgage
Loans, and effect an early
retirement of the Certificates,
when the aggregate scheduled
principal balance of the Mortgage
Loans is less than 10% of the
aggregate principal balance of
the Mortgage Loans as of the
Cut-Off Date.
Required Ratings: [Ratings]
Closing Date, Location and Time: ___________ ___, 20___; offices
of Cadwalader, Xxxxxxxxxx & Xxxx,
LLP, New York, New York; 10:00
a.m. New York City time.
Purchase Price for the Offered Certificates:
Class Percent of Initial Aggregate
----- Principal Balance
----------------------------
Class A %
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.
CITIGROUP GLOBAL MARKETS INC.
By:
__________________________________
Name:
Title:
Exhibit B
SUPPLEMENTAL INFORMATION
With respect to any investor, "Supplemental Information" means any of
the following types of information, to the extent omitted from the Issuer Free
Writing Prospectus:
1. The structure of the Certificates being offered to such investor
(such Certificates, the "Offered Certificates"), including general paydown
rules, the interest rate or interest rate formula, if applicable, the
anticipated price or price range, the yield to maturity and/or call, the
weighted average life at the pricing speed and under such other scenarios as may
be necessary to illustrate the material effects of prepayments or changes in
interest rates on the Offered Certificates (with a description of any related
prepayment, collateral and other assumptions), and other pricing information;
2. The "principal type" and "interest type" of the Offered Certificates,
using the categories listed under "Description of the Certificates--Categories
of Classes of Certificates" in the Base Prospectus;
3. The interest accrual period for the Offered Certificates;
4. Whether the Offered Certificates represent interests in the entire
Mortgage Pool or in one or more mortgage loan groups, the nature of such loan
groups, any differences in the subordination levels of the Offered Certificates
relating to such loan groups or the "deal rates" for such loan groups from the
deal rate specified in the Issuer Free Writing Prospectus as a result of the
division of the Mortgage Pool into more than one loan group by the Underwriter
or as a result of the Underwriter dividing the subordinated certificates into
more than one group and the nature of any cross-collateralization arrangements
affecting the Offered Certificates.
5. A description of any third party credit enhancement or any derivative
instruments being selected by the Underwriter in connection with the Offered
Certificates, together with the identity of and material information about any
related provider or counterparty, to the extent known to the Underwriter, and
the ratings assigned to such provider or counterparty; and
6. The identity of and material information about any special servicer
or credit risk manager selected by the Underwriter with respect to the Offered
Certificates.
XXXXX FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
TERMS AGREEMENT
September 22, 2006
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Underwriting Agreement dated February 15, 2006.
Title of Certificates: Mortgage Pass-Through Certificates,
Series 2006-18 Class A (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 $2,415,274,970 (Approximate).
of the Offered Certificates:
Certificates Not Offered Hereby: The Class B Certificates.
Subordination: "Shifting interest" structure.
Minimum Denominations of
Offered Certificates:
Class Minimum Denomination Incremental Denomination
Class A-1 $ 25,000 $1
Class A-PO $ 100,000 $1
Class A-R $ 100 N/A
Description of the Mortgage Loans: A pool of fully amortizing, one- to
four-family, fixed interest rate,
non-relocation, 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: November 1, 2006.
Final Structure Due Date: November 9, 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 Delivery of Final Prospectus to
Depositor Underwriter
-------------------------------- -------------------------------
By November 15, 2006: One Business Day before Closing Date.
By November 20, 2006: Closing Date.
By November 21, 2006 or later: As determined by the Depositor,
possible change of Closing Date.
Distributions: Distributions will be made monthly on
the 25th day of each month or the next
succeeding Business Day (the
"Distribution Date").
Servicing Fee (Monthly fee payable to 0.250% per annum (or as described in
the Servicer): the prospectus supplement).
Master Servicing Fee (Monthly fee 0.010% per annum.
payable to the Master Servicer):
Fixed Retained Yield: Yes.
Trustee: HSBC Bank USA, 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") and Xxxxx'x Investors
Service, Inc. ("Moody's"):
Class Fitch Moody's
----- ----- -------
Classes A-1 and A-PO AAA Aaa
Class A-R AAA None
Closing Date, Location and Time: November 28, 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 Price
----- -----
Classes A-1 and A-R [__]%
Class A-PO [__]%
In each case, as offered and sold pursuant to this Agreement, plus accrued
interest, if applicable, thereon.
Date of Pooling and Servicing Agreement: The Closing Date.
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. 333-137620.
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.
* * *
[WFMBS 2006-18 Senior Terms Agreement Signature Page]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement by
and among the Depositor, Xxxxx Fargo Bank, N.A. and the Underwriter.
Very truly yours,
XXXXX FARGO ASSET SECURITIES
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
The foregoing Terms Agreement
is hereby confirmed and accepted
as of the date first above written.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Director
