EXHIBIT 1.1
XXXXX FARGO ASSET SECURITIES CORPORATION
Asset-Backed Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
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Dated as of May 5, 2006
Xxxxxx Brothers Inc.
000 Xxxxxxx 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 Asset-Backed
Certificates in various series, each series of which may be divided into
classes, in one or more offerings on terms determined at the time of sale. One
or more series of Asset-Backed Certificates may be offered through you, as
underwriter (the "Underwriter"). Whenever WFASC determines to make an offering
of a series of its Asset-Backed Certificates through the Underwriter, WFASC and
Xxxxx Fargo Bank, N.A., a national banking association (in such capacity, "Xxxxx
Fargo Bank"), will enter into an agreement (the "Terms Agreement") with the
Underwriter, in substantially the form attached hereto as Exhibit A, providing
for the sale of such series of Asset-Backed Certificates to the Underwriter.
WFASC is a wholly-owned subsidiary of Xxxxx Fargo Bank. The Asset-Backed
Certificates of the series and classes to be sold in each offering to the
Underwriter under this Underwriting Agreement, as supplemented by the applicable
Terms Agreement, are hereinafter referred to as the "Certificates." The
Asset-Backed Certificates of the same series that are not being sold in each
offering to the Underwriter under this Underwriting Agreement are hereinafter
referred to as the "Other Certificates." The Certificates will have the
characteristics set forth in the applicable Terms Agreement and will evidence
the ownership interests in a trust consisting of a pool of mortgage loans
acquired by WFASC (the "Mortgage Loans") and related property (collectively, the
"Trust Fund"). The Mortgage Loans will be of the type described in, and will
have the characteristics and aggregate principal balance set forth in, the
Issuer Free Writing Prospectus and the Prospectus (in each case as hereinafter
defined).
The Certificates will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of the close of
business on the date specified in the applicable Terms Agreement as the closing
date (such date, the "Closing Date"), by and among WFASC, as depositor, Xxxxx
Fargo Bank, as servicer (in such capacity, the "Servicer"), the trustee
identified in the applicable Terms Agreement, as trustee (the "Trustee"), if
applicable, the securities administrator identified in the applicable Terms
Agreement, as securities administrator (the "Securities Administrator") and, if
applicable, the credit risk manager identified in the applicable Terms Agreement
as the credit risk manager (the "Credit Risk Manager"). The Certificates will be
issued in denominations of $25,000, or such lesser or greater amounts as may be
specified in the applicable Terms Agreement, and will have the terms set forth
in the Issuer Free Writing Prospectus and the Prospectus. The Certificates will
conform in all material respects to the description thereof contained in the
applicable Terms Agreement, the Issuer Free Writing Prospectus and the
Prospectus. Each offering of Asset-Backed Certificates under this Underwriting
Agreement will be governed by this Underwriting Agreement as supplemented by the
applicable Terms Agreement. This Underwriting Agreement, as supplemented by the
applicable Terms Agreement, is referred to herein as this "Agreement".
1. Representations and Warranties. (a) WFASC represents and warrants to,
and agrees with, the Underwriter as of the date of the applicable Terms
Agreement that:
(i) A registration statement (with the file number set forth in the
related Terms Agreement), including a prospectus (the "Base Prospectus"),
has been filed with the Securities and Exchange Commission (the
"Commission") and has become effective under the Securities Act of 1933,
as amended (the "Act"), was declared effective by the Commission within
three years of the Closing Date 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, will conform in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder applicable to such documents; and the Registration
Statement and the Prospectus, as of the date of the Prospectus Supplement,
will not include any untrue statement of a material fact and will not omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and, in the case of the
Prospectus, as revised, amended or supplemented and filed prior to the
Closing Date, as of the Closing Date, will not include any untrue
statement of a material fact and will not omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that WFASC makes no representations,
warranties or agreements as to the information contained in or omitted
from the Prospectus or any revision or amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished in
writing to WFASC by or on behalf of the Underwriter specifically for use
in connection with the preparation of the Registration Statement , the
Prospectus or the Time of Sale Information (as defined in Section 7(f)
below) or any revision or amendment thereof or supplement thereto. The
Time of Sale Information, 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) below) to the applicable investor;
provided, however, that WFASC makes no representations, warranties or
agreements as to the information contained in or omitted from the Time of
Sale Information or any revision or amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished in
writing to WFASC by or on behalf of the Underwriter specifically for use
in connection with the preparation of the Registration Statement, the
Prospectus or the Time of Sale Information or any revision or amendment
thereof or supplement thereto.
(iii) Assuming that it is rated at the time of issuance in one of
the two highest rating categories by a nationally recognized statistical
rating organization, each Certificate designated as a "mortgage related
security" in the Prospectus will, at the time of issuance, be a "mortgage
related security," as such term is defined in Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(iv) Each of the Certificates will conform in all material respects
to the description thereof contained in the Issuer Free Writing Prospectus
and the Prospectus, and each of the Certificates, when validly
authenticated, issued and delivered in accordance with the Pooling and
Servicing Agreement, will be duly and validly issued and outstanding and
entitled to the benefits of the Pooling and Servicing Agreement, and
immediately prior to the delivery of the Certificates to the Underwriter,
WFASC will own the Certificates, and upon such delivery the Underwriter
will acquire title thereto, free and clear of any lien, pledge,
encumbrance or other security interest other than one created or granted
by the Underwriter or permitted by the Pooling and Servicing Agreement.
(v) This Agreement has been duly authorized, executed and delivered
by WFASC and, as of the Closing Date, the Pooling and Servicing Agreement
will have been duly authorized, executed and delivered by WFASC and will
conform in all material respects to the description thereof contained in
the Issuer Free Writing Prospectus and the Prospectus and, assuming the
valid execution thereof by the other parties thereto, will constitute a
valid and binding agreement of WFASC enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the enforcement of
creditors' rights and by general equity principles.
(vi) WFASC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its
business as described in the Issuer Free Writing Prospectus and the
Prospectus and to enter into and perform its obligations under the Pooling
and Servicing Agreement and this Agreement.
(vii) Neither the issuance or delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein, nor
compliance with the provisions of the Pooling and Servicing Agreement or
this Agreement, will conflict with or result in the breach of any material
term or provision of the certificate of incorporation or bylaws of WFASC,
and WFASC is not in breach or violation of or in default (nor has an event
occurred which with notice or lapse of time or both would constitute a
default) under the terms of (i) any indenture, contract, lease, mortgage,
deed of trust, note agreement or other evidence of indebtedness or other
agreement, obligation or instrument to which WFASC is a party or by which
it or its properties are bound, or (ii) any law, decree, order, rule or
regulation applicable to WFASC of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or arbitrator
having jurisdiction over WFASC, or its properties, the default in or the
breach or violation of which would have a material adverse effect on WFASC
or the ability of WFASC to perform its obligations under the Pooling and
Servicing Agreement; and neither the delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein, nor the
compliance with the provisions of the Pooling and Servicing Agreement or
this Agreement will result in such a breach, violation or default which
would have such a material adverse effect.
(viii) No filing or registration with, notice to, or consent,
approval, authorization or order or other action of, any court or
governmental authority or agency is required for the consummation by WFASC
of the transactions contemplated by this Agreement or the Pooling and
Servicing Agreement (other than as required under state securities laws or
Blue Sky laws, as to which no representations and warranties are made by
WFASC), except such as have been, or will have been prior to the Closing
Date, obtained under the Act, and such recordations of the assignment of
the Mortgage Loans to the Trustee or, if applicable, to the Securities
Administrator on behalf of the Trustee, pursuant to the Pooling and
Servicing Agreement that have not yet been completed.
(ix) There is no action, suit or proceeding before or by any court,
administrative or governmental agency, or other tribunal, domestic or
foreign, now pending to which WFASC is a party, or, to the best of WFASC's
knowledge, threatened against WFASC, which could reasonably result
individually or in the aggregate in any material adverse change in the
condition (financial or otherwise), earnings, affairs, regulatory
situation or business prospects of WFASC or could reasonably interfere
with or materially and adversely affect the consummation of the
transactions contemplated herein.
(x) On the Closing Date the representations and warranties made by
WFASC in the Pooling and Servicing Agreement will be true and correct in
all material respects as of the date made.
(xi) At the time of execution and delivery of the Pooling and
Servicing Agreement, WFASC will own the mortgage notes (the "Mortgage
Notes") being transferred to the Trust Fund pursuant thereto, free and
clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim or
other security interest (collectively, "Liens"), except to the extent
permitted in the Pooling and Servicing Agreement, and will not have
assigned to any person other than the Trust Fund any of its right, title
or interest in the Mortgage Notes. WFASC will have the power and authority
to transfer the Mortgage Notes to the Trust Fund and to transfer the
Certificates to the Underwriter, and, upon execution and delivery to the
Trustee of the Pooling and Servicing Agreement, payment by the Underwriter
for the Certificates, and delivery to the Underwriter of the Certificates,
the Trust Fund will own the Mortgage Notes and the Underwriter will
acquire title to the Certificates, in each case free of Liens except to
the extent permitted by the Pooling and Servicing Agreement.
(xii) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the Pooling
and Servicing Agreement and the Certificates have been or will be paid by
WFASC on or prior to the Closing Date, except for fees for recording
assignments of mortgage loans to the Trustee or, if applicable, to the
Securities Administrator on behalf of the Trustee, pursuant to the Pooling
and Servicing Agreement that have not yet been completed, which fees will
be paid by WFASC in accordance with the Pooling and Servicing Agreement.
(xiii) The transfer of the Mortgage Loans and the related assets to
the Trust Fund on the Closing Date will be treated by WFASC for financial
accounting and reporting purposes as a sale of assets and not as a pledge
of assets to secure debt.
(xiv) WFASC acknowledges and agrees that (i) the purchase and sale
of the Certificates pursuant to this Agreement is an arm's-length
commercial transaction between WFASC and Xxxxx Fargo Bank on the one hand,
and the Underwriter, on the other, (ii) in connection therewith and with
the process leading to such transaction, the Underwriter is acting solely
as a principal and not the agent or fiduciary of WFASC, (iii) the
Underwriter has not assumed an advisory or fiduciary responsibility in
favor of WFASC with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether the Underwriter has
advised or is currently advising WFASC on other matters) or any other
obligation to WFASC except the obligations expressly set forth in this
Agreement and (iv) WFASC has consulted its own legal advisors to the
extent it deemed appropriate.
(xv) WFASC is not, and on the date on which the first bona fide
offer of the Certificates is made will not be, an "ineligible issuer," as
defined in Rule 405 under the Act.
(b) Xxxxx Fargo Bank represents and warrants to, and agrees with, the
Underwriter as of the date of the applicable Terms Agreement that:
(i) Xxxxx Fargo Bank is a national banking association duly
chartered and validly existing in good standing under the laws of the
United States with corporate power and authority to own its properties and
conduct its business as described in the Prospectus and the Issuer Free
Writing Prospectus and to enter into and perform its obligations under
this Agreement.
(ii) The execution and delivery by Xxxxx Fargo Bank of this
Agreement are within the corporate power of Xxxxx Fargo Bank and have been
duly authorized by all necessary corporate action on the part of Xxxxx
Fargo Bank.
(iii) Neither the execution and delivery of this Agreement, nor the
consummation by Xxxxx Fargo Bank of any other of the transactions
contemplated herein, nor compliance with the provisions of this Agreement,
will conflict with or result in the breach of any material term or
provision of the corporate charter or bylaws of Xxxxx Fargo Bank.
(iv) This Agreement has been duly authorized, executed and delivered
by Xxxxx Fargo Bank.
(v) Xxxxx Fargo Bank acknowledges and agrees that (i) the purchase
and sale of the Certificates pursuant to this Agreement is an arm's-length
commercial transaction between WFASC and Xxxxx Fargo Bank, on the one
hand, and the Underwriter, on the other, (ii) in connection therewith and
with the process leading to such transaction, the Underwriter is acting
solely as a principal and not the agent or fiduciary of Xxxxx Fargo Bank,
(iii) the Underwriter has not assumed an advisory or fiduciary
responsibility in favor of Xxxxx Fargo Bank with respect to the offering
contemplated hereby or the process leading thereto (irrespective of
whether the Underwriter has advised or is currently advising Xxxxx Fargo
Bank on other matters) or any other obligation to Xxxxx Fargo Bank except
the obligations expressly set forth in this Agreement and (iv) Xxxxx Fargo
Bank has consulted its own legal advisors to the extent it deemed
appropriate.
2. Purchase Price. The purchase price at which the Underwriter will
purchase the Certificates shall be the aggregate purchase price set forth in the
applicable Terms Agreement.
3. Delivery and Payment. The Certificates shall be delivered at the
office, on the Closing Date specified in the applicable Terms Agreement, which
place, date and time may be changed by agreement between the Underwriter and
WFASC. Delivery of the Certificates shall be made to the Underwriter against
payment by the Underwriter of the purchase price therefor to or upon the order
of WFASC in same-day funds. The Certificates shall be registered in such names
and in such denominations as the Underwriter may have requested not less than
two business days prior to the Closing Date. WFASC agrees to have the
Certificates available for inspection, checking and packaging in New York, New
York, on the business day prior to the Closing Date.
4. Offering by Underwriter. (a) It is understood that the Underwriter
proposes to offer the Certificates for sale as set forth in the Time of Sale
Information and the Prospectus and that the Underwriter will not offer, sell or
otherwise distribute the Certificates (except for the sale thereof in exempt
transactions) in any state in which the Certificates are not exempt from
registration under state securities laws or Blue Sky laws (except where the
Certificates will have been qualified for offering and sale at the direction of
the Underwriter under such state securities laws or Blue Sky laws). In
connection with such offering(s), the Underwriter agrees to provide WFASC with
information related to the offer and sale of the Certificates that is reasonably
requested by WFASC, from time to time (but not in excess of three years from the
Closing Date), and necessary for complying with its tax reporting obligations,
including, without limitation, the issue price of the Certificates.
(b) The Underwriter agrees that it will not sell or transfer any
Certificate or interest therein in the initial sale or transfer of such
Certificate by the Underwriter in an amount less than the minimum denomination
for such Certificate to be set forth in the Issuer Free Writing Prospectus and
the Prospectus Supplement.
(c) The Underwriter further agrees that (i) if it delivers to an investor
the Prospectus in portable document format ("PDF"), upon the Underwriter's
receipt of a request from the investor within the period for which delivery of
the Prospectus is required, the Underwriter will promptly deliver or cause to be
delivered to the investor, without charge, a paper copy of the Prospectus and
(ii) it will provide to WFASC any Underwriter Free Writing Prospectuses (as
defined in Section 9(a)), or portions thereof, which WFASC is required to file
with the Commission in electronic format and will use reasonable efforts to
provide to WFASC such Underwriter Free Writing Prospectuses, or portions
thereof, in either Microsoft Word(R) or Microsoft Excel(R) format and not in a
PDF, except to the extent that WFASC, in its sole discretion, waives such
requirements.
(d) The Underwriter represents and warrants to, and agrees with, WFASC, as
of the date of the applicable Terms Agreement and as of the Closing Date, that:
(i) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), it has not made and will not make an offer of Certificates to the
public in that Relevant Member State prior to the publication of a prospectus in
relation to the Certificates which has been approved by the competent authority
in that Relevant Member State or, where appropriate, approved in another
Relevant Member State and notified to the competent authority in that Relevant
Member State, all in accordance with the Prospectus Directive, except that it
may, with effect from and including the relevant implementation date, make an
offer of Certificates to the public in that Relevant Member State at any time:
(A) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(B) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year; (2) a
total balance sheet of more than (euro)43,000,000 and (3) an annual net
turnover of more than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(C) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this representation, the expression an "offer of
Certificates to the public" in relation to any Certificates in any Relevant
Member State means the communication in any form and by any means of sufficient
information on the terms of the offer and the Certificates to be offered so as
to enable an investor to decide to purchase or subscribe the Certificates, as
the same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State, and the expression "Prospectus
Directive" means the European Commission Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
(ii) It has only communicated or caused to be communicated and will
only communicate or cause to be communicated an invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the United
Kingdom Financial Services and Markets Act 2000 (the "FSMA")) received by it in
connection with the issue or sale of the Certificates in circumstances in which
Section 21(1) of the FSMA does not apply to the issuer.
(iii) It has complied and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to the Certificates
in, from or otherwise involving the United Kingdom.
5. Agreements. WFASC agrees with the Underwriter that:
(a) WFASC will cause the Prospectus to be filed with the Commission
pursuant to Rule 424 under the Act and, if necessary, within 15 days of the
Closing Date, will file a report on Form 8-K setting forth specific information
concerning the Certificates, and will promptly advise the Underwriter when the
Prospectus has been so filed, and, prior to the termination of the offering of
the Certificates, will also promptly advise the Underwriter (i) when any
amendment to the Registration Statement has become effective or any revision of
or supplement to the Prospectus has been so filed (unless such amendment,
revision or supplement does not relate to the Certificates), (ii) of any request
by the Commission for any amendment of the Registration Statement or the
Prospectus or for any additional information (unless such request does not
relate to the Certificates), and (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement with
respect to the Certificates or the institution or, to the knowledge of WFASC,
the threatening of any proceeding for that purpose. WFASC will use its best
efforts to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof. Except as otherwise provided in
Section 5(b) hereof, WFASC will not file prior to the termination of such
offering any amendment to the Registration Statement or any revision of or
supplement to the Prospectus (other than any such amendment, revision or
supplement which does not relate to the Certificates) which shall be disapproved
by the Underwriter after reasonable notice and review of such filing.
(b) If, at any time when a prospectus relating to the Certificates is
required to be delivered under the Act (without regard to reliance on Rule 174
under the Act) (i) any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein in the
light of the circumstances under which they were made not misleading, or (ii) it
shall be necessary to revise, amend or supplement the Prospectus to comply with
the Act or the rules and regulations of the Commission thereunder, WFASC
promptly will notify the Underwriter and will, upon request of the Underwriter,
or may, after consultation with the Underwriter, prepare and file with the
Commission a revision, amendment or supplement which will correct such statement
or omission or effect such compliance, and furnish without charge to the
Underwriter as many copies as the Underwriter may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance.
(c) WFASC will (i) furnish to the Underwriter and counsel for the
Underwriter, without charge, conformed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus relating
to the Certificates is required under the Act, as many copies of the Prospectus
and any revisions or amendments thereof or supplements thereto as may be
reasonably requested, and (ii) file promptly all reports and any definitive
proxy or information statements required to be filed by WFASC with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (as
such requirements may be modified pursuant to Section 12(h) of the Exchange Act)
subsequent to the date of the Prospectus Supplement and for so long as the
delivery of a prospectus is required under applicable law in connection with the
offering or sale of the Certificates.
(d) WFASC will, as between itself and the Underwriter, pay all expenses
incidental to the performance of its obligations under this Agreement including,
without limitation, (i) expenses of preparing, printing, reproducing and filing
the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus,
the Pooling and Servicing Agreement and the Certificates, (ii) the cost of
delivering the Certificates to the Underwriter, insured to the satisfaction of
the Underwriter, (iii) the fees charged by (a) securities rating services for
rating the Certificates and (b) WFASC's independent accountants in connection
with the letters to be delivered pursuant to Section 6(g) hereof, (iv) the fees
and expenses of the Trustee, the Securities Administrator, if applicable, and
any agent of the Trustee or the Securities Administrator, if applicable, and the
fees and disbursements of counsel for the Trustee and the Securities
Administrator, if applicable, in connection with the Pooling and Servicing
Agreement and the Certificates, and (v) all other costs and expenses incidental
to the performance by WFASC of WFASC's obligations hereunder which are not
otherwise specifically provided for in this subsection. It is understood that,
except as provided in this paragraph (d) and in Sections 7 and 12 hereof, the
Underwriter will pay all of its own expenses, including (i) the fees of any
counsel to the Underwriter, (ii) any transfer taxes on resale of any of the
Certificates by it, (iii) any advertising expenses connected with any offers
that the Underwriter may make, (iv) any expenses for the qualification of the
Certificates under state securities laws or Blue Sky laws, including filing fees
and the fees and disbursements of counsel for the Underwriter in connection
therewith and in connection with the preparation of any Blue Sky survey, and (v)
any expenses incurred in connection with the preparation and delivery of any
Underwriter Free Writing Prospectus and the filing of such Free Writing
Prospectus, if required to be filed by Underwriter with the Commission.
(e) So long as any Certificates are outstanding, upon the request of the
Underwriter, WFASC will, or will cause the Servicer to, furnish to the
Underwriter, as soon as available, a copy of (i) the annual statement of
compliance delivered by the Servicer to the Trustee or the Securities
Administrator under the Pooling and Servicing Agreement, (ii) the annual
independent public accountants' servicing report furnished to the Trustee or the
Securities Administrator pursuant to the Pooling and Servicing Agreement, (iii)
each report of WFASC regarding the Certificates filed with the Commission under
the Exchange Act or mailed to the holders of the Certificates, and (iv) from
time to time, such other information concerning the Certificates which may be
furnished by WFASC or the Servicer without undue expense and without violation
of applicable law.
(f) If the third anniversary of the effective date of the Registration
Statement occurs within six months after the Closing Date, the Company will, at
the request of the Underwriter, use reasonable efforts to take such action as
may be necessary or appropriate to permit the public offering and sale of the
Certificates as contemplated herein.
6. Conditions to the Obligation of the Underwriter. The obligation of the
Underwriter to purchase the Certificates shall be subject to the accuracy in all
material respects of the representations and warranties on the part of WFASC and
Xxxxx Fargo Bank contained herein as of the date of the applicable Terms
Agreement and as of the Closing Date, to the accuracy of the statements of WFASC
and Xxxxx Fargo Bank made in any officer's certificate pursuant to the
provisions hereof, to the performance in all material respects by WFASC of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement with respect to the Certificates shall have been issued and no
proceedings for that purpose shall have been instituted and be pending or shall
have been threatened, and the Prospectus shall have been filed or mailed for
filing with the Commission not later than required pursuant to the rules and
regulations of the Commission.
(b) WFASC shall have furnished to the Underwriter a certificate, dated the
Closing Date, of WFASC, signed by a vice president or an assistant vice
president of WFASC, to the effect that the signer of such certificate has
carefully examined the Registration Statement, the Prospectus and this Agreement
and that:
(i) The representations and warranties of WFASC herein are true and
correct in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date, and WFASC has complied with
all agreements and satisfied all the conditions on its part to be
performed or satisfied on or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration
Statement with respect to the Certificates has been issued, and no
proceedings for that purpose have been instituted and are pending or, to
his or her knowledge, have been threatened as of the Closing Date; and
(iii) Nothing has come to the attention of such person that would
lead him or her to believe that the Prospectus contains any untrue
statement of a material fact or omits to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(c) WFASC shall have caused Xxxxx Fargo Bank to furnish to the Underwriter
a certificate, dated the Closing Date, of Xxxxx Fargo Bank, signed by a vice
president or an assistant vice president of Xxxxx Fargo Bank, to the effect that
the representations and warranties of Xxxxx Fargo Bank herein are true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, and Xxxxx Fargo Bank has in all material
respects complied with all agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing Date.
(d) WFASC shall have furnished to the Underwriter an opinion, dated the
Closing Date, of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to WFASC, to the
effect that:
(i) WFASC is a corporation validly existing and in good standing
under the laws of the State of Delaware, with corporate power to enter
into and perform its obligations under this Agreement, the applicable
Terms Agreement and the Pooling and Servicing Agreement;
(ii) The execution and delivery of this Agreement and the applicable
Terms Agreement have been duly authorized by WFASC and this Agreement and
the applicable Terms Agreement have been duly executed and delivered by
WFASC;
(iii) The execution and delivery of the Pooling and Servicing
Agreement has been duly authorized by WFASC, and the Pooling and Servicing
Agreement has been duly executed and delivered by WFASC and constitutes a
legal, valid and binding agreement of WFASC, enforceable against WFASC in
accordance with its terms subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, receivership or other
laws relating to or affecting creditors' rights generally or the rights of
creditors of banks, and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity), and
except that the enforcement of rights with respect to indemnification and
contribution obligations and provisions (a) purporting to waive or limit
rights to trial by jury, oral amendments to written agreements or rights
of set off or (b) relating to submission to jurisdiction, venue or service
of process, may be limited by applicable law or considerations of public
policy;
(iv) The Certificates have been duly authorized 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 Base Prospectus and the
Prospectus Supplement under the headings "Certain Federal Income Tax
Consequences" and "Federal Income Tax Considerations," respectively. For
purposes of the opinion set forth in this paragraph, such counsel has not
regarded any legal or governmental actions, investigations or proceedings
to be "threatened" unless the potential litigant or governmental authority
has manifested to WFASC a present intention to initiate such proceedings;
(vii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended;
(viii) The Trust Fund 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
Base 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 it is rated at the time of issuance in one of
the two highest rating categories by a nationally recognized statistical
rating organization, each Certificate designated as a "mortgage related
security" in the Prospectus will, at the time of issuance, be a "mortgage
related security" as such term is defined in Section 3(a)(41) of the
Exchange Act.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the Pooling and
Servicing Agreement. Such opinion may assume the due authorization, execution
and delivery of the instruments and documents referred to therein by the parties
thereto other than WFASC. Such opinion may be qualified as an opinion only on
the laws of the State of New York, the laws of each state in which the writer of
the opinion is admitted to practice law and the federal law of the United
States. To the extent that such firm relies upon the opinion of other counsel in
rendering any portion of its opinion, the opinion of such other counsel shall be
attached to and delivered with the opinion of such firm that is delivered to the
Underwriter.
(e) The Servicer shall have furnished to the Underwriter an opinion, dated
the Closing Date, of counsel to the Servicer (who may be an employee of the
Servicer), to the effect that:
(i) The Servicer has been duly incorporated and is validly existing
as a national banking association and has the power and authority to enter
into, and to take all action required of it under, the Pooling and
Servicing Agreement and the Servicing Agreement (as defined in the Pooling
and Servicing Agreement);
(ii) The Pooling and Servicing Agreement and the Servicing Agreement
have been duly authorized, executed and delivered by the Servicer and,
assuming valid execution and delivery thereof by the other parties
thereto, the Pooling and Servicing Agreement and the Servicing Agreement
constitute a valid and legally binding agreements of the Servicer,
enforceable against the Servicer in accordance with their terms, subject
to bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting creditors' rights generally and to
general equity principles regardless of whether such enforcement is
considered in a proceeding at law or in equity;
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Servicer of the transactions contemplated by the terms of the Pooling
and Servicing Agreement and the Servicing Agreement except any such as may
be required under the blue sky laws of any jurisdiction in connection with
the offering, sale or acquisition of the Certificates, any recordations of
the assignments of the mortgage loans evidenced by the Certificates
pursuant to the Pooling and Servicing Agreement that have not yet been
completed and any approvals as have been obtained;
(iv) The consummation by the Servicer of the transactions
contemplated by the terms of the Pooling and Servicing Agreement and the
Servicing Agreement do not, to the knowledge of such counsel, conflict
with or result in a breach or violation of any material term or provision
of, or constitute a default under, the charter or bylaws of the Servicer,
any indenture or other agreement or instrument to which the Servicer is a
party or by which it is bound, any federal statute or regulation
applicable to the Servicer or, to the knowledge of such counsel, any order
of any federal court, regulatory body, administrative agency or
governmental body having jurisdiction over the Servicer; and
(v) To the best knowledge of such counsel after due inquiry, there
are no legal or governmental actions, investigations or proceedings
pending to which the Servicer is a party, or threatened against the
Servicer, (A) asserting the invalidity of the Pooling and Servicing
Agreement or the Servicing Agreement or (B) which might materially and
adversely affect the performance by the Servicer of its obligations under,
or the validity or enforceability of, the Pooling and Servicing Agreement
or the Servicing Agreement. For purposes of the foregoing, such counsel
may state that it has not regarded any legal or governmental actions,
investigations or proceedings to be "threatened" unless the potential
litigant or governmental authority has manifested to a member of the law
division of Xxxxx Fargo & Company having responsibility for litigation
matters involving the servicing activities of the Servicer a present
intention to initiate such proceedings.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Pooling and Servicing Agreement or
Servicing Agreement. Such opinion may assume the due authorization, execution
and delivery of the instruments and documents referred to therein by the parties
thereto other than the Servicer. Such opinion may be qualified as an opinion
only on the federal law of the United States and, with respect to the opinions
set forth in paragraph (e)(ii) above, the laws of the State of New York. To the
extent that such counsel relies upon the opinion of other counsel in rendering
any portion of its opinion, the opinion of such other counsel shall be attached
to and delivered with the opinion of such counsel that is delivered to the
Underwriter.
(f) The Underwriter shall have received from counsel for the Underwriter
such opinion or opinions, dated the Closing Date, with respect to the issuance
and sale of the Certificates, the Registration Statement, the Issuer Free
Writing Prospectus and the Prospectus, and such other related matters as the
Underwriter may reasonably require.
(g) WFASC shall have delivered to the Underwriter (i) a letter from
WFASC's independent accountants, as identified in the applicable Terms Agreement
(the "Independent Accountants"), dated as of or prior to the date of first use
of the Prospectus Supplement in the form and reflecting the performance of the
procedures previously agreed to by WFASC and the Underwriter with respect to
numerical and statistical information included in the Prospectus Supplement
(other than static pool information, if any, provided pursuant to Item 1105 of
Regulation AB under the Act), (ii) a letter from WFASC's Independent Accountants
dated as of or prior to the date of first use of the Issuer Free Writing
Prospectus in the form and reflecting the performance of the procedures
previously agreed to by WFASC and the Underwriter with respect to numerical and
statistical information included in the Issuer Free Writing Prospectus (other
than static pool information, if any, provided pursuant to Item 1105 of
Regulation AB under the Act), (iii) a copy of a letter from WFASC's Independent
Accountants, addressed to WFASC, dated as of a date not more than 135 days prior
to the date of first use of the Prospectus Supplement, reflecting the
performance of the procedures previously agreed to by WFASC and the Independent
Accountants with respect to any static pool information after January 1, 2006
which is incorporated into the Prospectus Supplement and (iv) a bring down
letter, dated the date of the Prospectus Supplement, from the Independent
Accountants with respect to the letter described in clause (iii), which shall be
addressed to the Underwriter provided that the Underwriter shall have complied
with any reasonable requests of the Independent Accountants as a condition
thereto.
(h) Subsequent to the date on which WFASC notifies the Underwriter that
WFASC has selected it to underwrite the offering of the Certificates, there
shall not have occurred any change, or any development involving a prospective
change, in or affecting the business or properties of WFASC which the
Underwriter concludes, in the reasonable judgment of the Underwriter, materially
impairs the investment quality of the Certificates so as to make it impractical
or inadvisable to proceed with the public offering or the delivery of the
Certificates as contemplated by the Issuer Free Writing Prospectus and the
Prospectus.
(i) The Certificates shall be rated not lower than the required ratings
set forth in the applicable Terms Agreement, such ratings shall not have been
rescinded and no public announcement shall have been made that any rating of the
Certificates has been placed under review (otherwise than for possible
upgrading).
(j) The Underwriter shall have received copies of any opinions of counsel
to WFASC supplied to the rating organizations relating to certain matters with
respect to the Certificates. Any such opinions shall be dated the Closing Date
and addressed to the Underwriter or accompanied by reliance letters to the
Underwriter or shall state that the Underwriter may rely upon them.
(k) WFASC shall have furnished to the Underwriter such further
information, certificates and documents as the Underwriter may have reasonably
requested, and all proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be in all material
respects reasonably satisfactory in form and substance to the Underwriter and
its counsel.
(l) The Underwriter shall have received a letter from counsel to WFASC,
dated the Closing Date, to the effect that in the course of such counsel's
review of the Prospectus and discussion of the same with certain officers of
WFASC, its accountants and the Underwriter, no facts came to the attention of
such counsel that caused such counsel to believe that the Prospectus, as of the
date of the Prospectus Supplement, or any revision or amendment thereof or
supplement thereto, contained any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in the light
of circumstances under which they were made, not misleading; it being understood
that such counsel need express no view as to any financial, numerical,
statistical, or quantitative data contained in the Prospectus, or any material
incorporated by reference in the Prospectus.
(m) The Underwriter shall have received a letter from counsel to WFASC,
dated the date of the Closing Date, substantially to the effect that in the
course of such counsel's review of the Issuer Free Writing Prospectus and the
Time of Sale Information, no facts came to the attention of such counsel that
caused such counsel to believe that as of the applicable Time of Sale, the
Issuer Free Writing Prospectus when considered in conjunction with the Time of
Sale Information, included an untrue statement of material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; it being
understood that such counsel need express no view as to any blanks or bracketed
items in the Issuer Free Writing Prospectus, or any financial, numerical,
statistical or quantitative data contained in or omitted from the Issuer Free
Writing Prospectus or any material incorporated by reference in the Issuer Free
Writing Prospectus.
(n) The issuance on the Closing Date of the Other Certificates.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, this
Agreement and all obligations of the Underwriter hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriter. Notice of such
cancellation shall be given to WFASC in writing, or by telephone or telegraph
confirmed in writing.
7. Indemnification and Contribution. (a) WFASC agrees to indemnify and
hold harmless the Underwriter and each person who controls the Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Act, the Exchange Act, or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or in the Prospectus, or
in any revision or amendment thereof or supplement thereto, or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (ii) any untrue statement or
alleged untrue statement of a material fact contained in any Issuer Free Writing
Prospectus or any Issuer Information contained in any Free Writing Prospectus
(other than any Issuer Free Writing Prospectus), or the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, 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 any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to WFASC by or on behalf of the Underwriter
specifically for use in connection with the preparation thereof. This indemnity
agreement will be in addition to any liability which WFASC may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless WFASC, its
officers who signed the Registration Statement or any amendment thereof, its
directors, and each person who controls WFASC within the meaning of either the
Act or the Exchange Act, and Xxxxx Fargo Bank, and each person who controls
Xxxxx Fargo Bank within the meaning of either the Act or the Exchange Act, (i)
to the same extent as the foregoing indemnities from WFASC to the Underwriter,
but only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to WFASC by or on behalf of the Underwriter
specifically for use in connection with the preparation of the Prospectus, the
Issuer Free Writing Prospectus or any revision or amendment thereof or
supplement thereto or (ii) insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) are based on, result from or arise
out of (A) any untrue statement or alleged untrue statement of a material fact
contained in any Underwriter Free Writing Prospectus, or any omission or alleged
omission to state in such Underwriter Free Writing Prospectus a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading at the Time of Sale to the applicable
investor, when considered in conjunction with the Time of Sale Information;
except to the extent that such untrue statements or alleged untrue statements or
omissions or alleged omissions are the result of untrue statements in or
omissions from any Issuer Information supplied by WFASC to the Underwriter
which, in any case, were not corrected by information subsequently supplied by
WFASC to the Underwriter sufficiently prior to the Time of Sale to the
applicable investor to reasonably permit the delivery thereof by the Underwriter
to such investor or (B) any failure by the Underwriter to deliver the Issuer
Free Writing Prospectus or the Time of Sale Information 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 such 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) or (b)(ii)
above, in such proportion as is appropriate to reflect the relative fault of the
Underwriter on the one hand and WFASC on the other in connection with the
actions, statements or omissions that resulted in such losses, claims, damages
or liabilities. The relative benefits received by WFASC on the one hand and the
Underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by
WFASC bear to the difference between (i) the total price at which the
Certificates underwritten by the Underwriter and distributed to the public were
offered to the public, and (ii) the portion of the total net proceeds from the
offering (before deducting expenses) received by WFASC attributable to the
Certificates. The relative fault for the purposes of clauses (A) and (B) above
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact related to information supplied by WFASC or the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. WFASC,
Xxxxx Fargo Bank and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), and with respect to losses, claims, damages
or liabilities referred to in subsection (a) or (b) above, the Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Certificates underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of WFASC under this Section 7 shall be in addition to
any liability which WFASC may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls the Underwriter
within the meaning of the Act; and the obligations of the Underwriter under this
Section 7 shall be in addition to any liability which the Underwriter may
otherwise have and shall extend, upon the same terms and conditions, to (i) the
officers of WFASC who signed the Registration Statement or any amendment
thereof, to its directors, and to each person who controls WFASC within the
meaning of either the Act or the Exchange Act and (ii) each person who controls
Xxxxx Fargo Bank within the meaning of either the Act or the Exchange Act.
(f) As used in this Agreement, "Time of Sale" means, as to any investor in
the Certificates, the time at which such investor enters into a Contract of Sale
(as defined in Section 9(b)) for the Certificates, or if such Contract of Sale
is subsequently terminated and a new Contract of Sale is entered into by mutual
agreement between such investor and the applicable Underwriter in a manner
sufficient to constitute a reformation of the contract within the contemplation
of Section IV.2.c of Securities Act Release 33-8591, such time at which the new
Contract of Sale is entered into, and "Time of Sale Information" means all
information identified in the applicable Terms Agreement as "Time of Sale
Information."
8. Obligations of Xxxxx Fargo Bank. Xxxxx Fargo Bank agrees with the
Underwriter, for the sole and exclusive benefit of the Underwriter and each
person who controls the Underwriter within the meaning of either the Act or the
Exchange Act and not for the benefit of any assignee thereof or any other person
or persons dealing with the Underwriter, in consideration of and as an
inducement to its agreement to purchase the Certificates from WFASC, to
indemnify and hold harmless the Underwriter against any failure by WFASC to
perform its obligations to the Underwriter (including its contribution
obligation) pursuant to Section 7 hereof; provided, however, that the aggregate
liability of Xxxxx Fargo Bank for the foregoing indemnity shall not exceed an
amount equal to the aggregate principal amount of the Certificates.
9. Offering Communications; Free Writing Prospectuses. (a) Unless preceded
or accompanied by a prospectus satisfying the requirements of Section 10(a) of
the Act, the Underwriter shall not convey or deliver any written communication,
as defined in Rule 405 under the Act (a "Written Communication"), to any person
in connection with the initial offering of the Certificates, unless such Written
Communication (i) is made in reliance on and in conformity with Rule 134 under
the Act, (ii) constitutes a prospectus satisfying the requirements of Rule 430B
under the Act or (iii) constitutes a "free writing prospectus," as defined in
Rule 405 under the Act (a "Free Writing Prospectus"). Notwithstanding anything
to the contrary contained in this Agreement, without the prior written consent
of WFASC, which may be withheld in its sole discretion, the Underwriter shall
not convey or deliver in connection with the initial offering of the
Certificates, any Free Writing Prospectus unless such Free Writing Prospectus
contains only ABS Informational and Computational Material, as defined in Item
1101(a) of Regulation AB under the Act ("ABS Informational and Computational
Material"); provided 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) WFASC shall prepare a Free Writing Prospectus (the "Issuer Free
Writing Prospectus") and shall deliver such Issuer Free Writing Prospectus to
the Underwriter after it files such Issuer Free Writing Prospectus with the
Commission and the Underwriter shall not convey or deliver such Issuer Free
Writing Prospectus to any person or entity until WFASC has notified the
Underwriter that it has completed such filing. Thereafter, the Issuer Free
Writing Prospectus may be used by the Underwriter solely in connection with the
marketing of the Certificates to institutional investors; provided however, the
Underwriter shall not enter into any "contract of sale" with any investor,
within the meaning of Rule 159 under the Act (a "Contract of Sale"), with
respect to any Certificates, unless prior to the Time of Sale to each investor
in the Certificates, the Underwriter shall have delivered to such investor the
Issuer Free Writing Prospectus and any additional Time of Sale Information,
together with any amendment or supplement thereto supplied by WFASC to the
Underwriter sufficiently prior to the Time of Sale to such investor to
reasonably permit delivery thereof by the Underwriter to such investor.
(c) (i) The Underwriter shall deliver to WFASC each Underwriter Free
Writing Prospectus that contains any "issuer information," as defined in Rule
433(h) under the Act and footnote 271 of Securities Act Release No. 33-8591
("Issuer Information") if such Underwriter Free Writing Prospectus or the
portion thereof consisting of Issuer Information is required to be filed by
WFASC with the Commission pursuant to Rule 433 under the Act ("Rule 433").
(ii) Any Underwriter Free Writing Prospectus that is required to be
delivered pursuant to Section 9(c)(i) shall be delivered by the
Underwriter to WFASC no later than two business days prior to the due date
for filing of the Prospectus pursuant to Rule 424(b) under the Act;
provided however, that if such Underwriter Free Writing Prospectus
contains any information other than ABS Informational and Computational
Material, it shall instead be delivered by the Underwriter to WFASC not
later than two business days prior to the date of first use of such Free
Writing Prospectus.
(iii) Not later than one business day after the Underwriter has
determined the final structure of all classes of Certificates, and in no
event later than the fourth business day preceding the due date for filing
the final Prospectus pursuant to Rule 424(b) under the Act, the
Underwriter shall prepare and deliver to WFASC an Underwriter Free Writing
Prospectus (which may consist of a term sheet) containing a description of
the final structure of the Certificates, irrespective of whether such
Underwriter Free Writing Prospectus has been or will be conveyed or
delivered by the Underwriter to any investor in the Certificates.
(iv) To facilitate the filing thereof by WFASC, the Underwriter
shall provide the Issuer Information contained in any Underwriter Free
Writing Prospectus that is required to be delivered to WFASC pursuant to
this Section 9(c) in a separate document from the portion of such Free
Writing Prospectus which contains information other than Issuer
Information.
(d) The Underwriter represents and warrants to WFASC that the Underwriter
Free Writing Prospectuses required to be furnished to WFASC by the Underwriter
pursuant to Section 9(c) will constitute all Underwriter Free Writing
Prospectuses of the type described therein that were furnished to prospective
investors by the Underwriter in connection with its offer and sale of the
Certificates.
(e) The Underwriter represents and warrants to WFASC that each Underwriter
Free Writing Prospectus provided by it to an investor in the Certificates did
not, as of the Time of Sale to any prospective investor to which such
Underwriter Free Writing Prospectus was conveyed, include any untrue statement
of a material fact or omit any material fact necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading when considered in conjunction with the Time of Sale Information;
provided however, that the Underwriter makes no representation or warranty to
the extent such misstatements or omissions were the result of any misstatements
in or omissions from any Issuer Information in any Underwriter Writing
Prospectus 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 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].
The asset-backed securities referred to in these materials, and the
asset pools backing them, are subject to modification or revision
(including the possibility that one or more classes of securities
may be split, combined or eliminated at any time prior to issuance
or availability of a final prospectus) and are offered on a "when,
as and if issued" basis. You understand that, when you are
considering the purchase of these securities, a contract of sale
will come into being no sooner than the date on which the relevant
class has been priced and the underwriter has confirmed the
allocation of securities to be made to you; any "indications of
interest" expressed by you, and any "soft circles" generated by the
underwriter, will not create binding contractual obligations for
you, the underwriter or us.
(i) The Underwriter agrees to comply with the requirements of Rule 433
under the Act applicable to the Underwriter including, without limitation, the
record retention requirements therein.
(j) (i) The Underwriter agrees to keep and maintain, for a period of not
less than three years following the date of initial issuance of the
Certificates, written records documenting, as to each investor in Certificates,
the Time of Sale and the date on which each Issuer Free Writing Prospectus and
each Underwriter Free Writing Prospectus was conveyed to such investor.
(ii) In the event of any litigation or written notice of potential
litigation against WFASC or any of its affiliates with respect to the
Certificates, the Underwriter shall, upon the request of WFASC, make available
to WFASC copies of all records required to be maintained by it pursuant to
Section 9(j)(i) and any Free Writing Prospectus required to be retained by it
pursuant to Section 9(i).
(k) [Reserved]
(l) (i) In the event that WFASC becomes aware that the Issuer Free Writing
Prospectus contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein, in
light of the circumstances under which they were made, not misleading (such Free
Writing Prospectus, a "Defective Issuer Free Writing Prospectus"), WFASC shall
notify the Underwriter thereof within one business day after discovery and WFASC
shall prepare and deliver to the Underwriter a Free Writing Prospectus which
corrects the material misstatement or omission in the Defective Issuer Free
Writing Prospectus (such corrected Issuer Free Writing Prospectus, a "Corrected
Issuer Free Writing Prospectus").
(ii) In the event that the Underwriter becomes aware that, as of the
applicable Time of Sale to an investor in the Certificates, any Underwriter Free
Writing Prospectus prepared by or on behalf of the Underwriter and delivered to
such investor contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading, when considered in conjunction with the Time of Sale Information
(such Free Writing Prospectus, a "Defective Underwriter Free Writing Prospectus
and, together with a Defective Issuer Free Writing Prospectus, a "Defective Free
Writing Prospectus"), the Underwriter shall notify WFASC thereof within one
business day after discovery.
(iii) The Underwriter shall, if requested by WFASC:
(A) prepare a Free Writing Prospectus which corrects the
material misstatement in or omission from the Defective Underwriter
Free Writing Prospectus (such corrected Underwriter Free Writing
Prospectus, a "Corrected Underwriter Free Writing Prospectus" and,
together with a Corrected Issuer Free Writing Prospectus, a
"Corrected Free Writing Prospectus");
(B) deliver the Corrected Free Writing Prospectus to each
investor which received the Defective Free Writing Prospectus prior
to entering into a Contract of Sale;
(C) provide such investor with the following:
(1) adequate disclosure of the contractual arrangement;
(2) adequate disclosure of the investor's rights under
the existing Contract of Sale at the time termination is
sought;
(3) adequate disclosure of the new information that is
necessary to correct the misstatements or omissions in
the information given at the time of the original
Contract of Sale; and
(4) a meaningful ability to elect to terminate or not
terminate the prior Contract of Sale and to elect to
enter into or not enter into a new Contract of Sale; and
(D) comply with any other requirements for reformation of the
original Contract of Sale described in Section IV.2.c of Securities
Act Release Act 33-8591.
(m) The Underwriter covenants with WFASC that it will make available to
WFASC, upon reasonable prior notice and at reasonable times during normal
business hours, such personnel as are familiar with the Underwriter's compliance
procedures for the purpose of answering questions concerning the Underwriter's
practices and procedures for the preparation and dissemination of Written
Communications concerning the Certificates to prospective investors prior to the
delivery of the final Prospectus to such investors.
(n) The Underwriter covenants with WFASC that after the final Prospectus
is available, the Underwriter shall not distribute any Written Communication
concerning the Certificates to a prospective investor unless such communication
is preceded or accompanied by the final Prospectus.
(o) The Underwriter agrees, upon request of WFASC, to provide to WFASC any
information within the control of the Underwriter which WFASC may reasonably
request to enable WFASC to timely and accurately meet its disclosure and
reporting obligations under the Act and the Exchange Act.
(p) The Underwriter agrees to cause any credit enhancement provider,
derivative counterparty, special servicer or credit risk manager arranged by the
Underwriter in connection with the Certificates to provide to WFASC such
narrative disclosure, financial information, including required accountants'
consents, and other information as WFASC may reasonably request to enable WFASC
to timely and accurately meet its disclosure and reporting obligations under the
Act and the Exchange Act. In addition, upon request by WFASC, the Underwriter
agrees to cause the party providing the information required by the immediately
preceding sentence to provide indemnity satisfactory to WFASC relating to such
disclosure and financial information.
(q) Notwithstanding any other provision herein, the Underwriter and WFASC
each agree to pay all costs and expenses of the other party including, without
limitation, legal fees and expenses, incurred in connection with any successful
action by the Underwriter or WFASC against the other party to enforce any of its
rights set forth in this Section 9.
10. Protection of Confidential Information. The Underwriter shall (a) keep
confidential any Confidential Information (as defined herein), and (b) not use
the Confidential Information other than in connection with the Underwriter's
purchase and marketing of the Certificates. The Underwriter may disclose
Confidential Information only to its directors, trustees, officers, employees,
agents, partners or representatives, including without limitation any
accountants, attorneys, and financial advisors ("Personnel") who have a need to
know such information either in connection with the marketing of the
Certificates or for the purpose of the evaluation of the Underwriter's purchase
of the Certificates. The Underwriter shall advise all of its Personnel who will
have access to the Confidential Information of the obligations of
confidentiality imposed by this Section 10, and, the Underwriter confirms that
it shall cause each of its Personnel to comply with the terms of this Section
10. The Underwriter shall take all other measures as may be reasonably necessary
to protect the confidentiality of the Confidential Information, including
without limitation such measures as it takes to safeguard its own confidential
information, to ensure the security and confidentiality of all such Confidential
Information, to protect against anticipated threats or hazards to the security
or integrity of such Confidential Information and to protect against
unauthorized access to or use of such Confidential Information and shall require
its Personnel to refrain from using any Confidential Information for their own
use or for any other purpose other than in connection with the purchase of the
Certificates.
In the situations where the Underwriter is disclosing Confidential
Information to its Personnel as permitted above, the Underwriter shall take
reasonable safeguards (including any specific safeguards requested by WFASC)
with respect to the use, transmission and storage of Confidential Information in
order to prevent the dissemination of such Confidential Information to persons
other than its authorized Personnel. All Confidential Information which is
transmitted over any network must be encrypted in accordance with a standard for
encryption acceptable to WFASC prior to transmission. The Underwriter agrees
that where the Underwriter maintains any Confidential Information at the
Underwriter's site or on the Underwriter's equipment, including portable
equipment such as laptops, such Confidential Information shall be stored in an
encrypted form in accordance with a standard for encryption acceptable to WFASC.
For purposes of this Section 10, "Confidential Information" shall mean and
include all information concerning the Mortgage Loans and the related mortgagors
furnished, orally, electronically or in writing by WFASC or by any of its
"Affiliates" (as defined herein) to the Underwriter, which constitutes
"nonpublic personal information" within the meaning of the Xxxxx-Xxxxx-Xxxxxx
Act of 1999. For purposes of this Section 10, "Affiliate" of a person or entity
shall mean and refer to all persons or entities that control, are controlled by
or are under common control with such person or entity and their respective
officers, directors and employees.
11. Third-Party Due Diligence. The Underwriter shall not permit access by
a third-party (other than any nationally recognized statistical rating
organization involved in the rating of the Certificates) to any due diligence
information provided by WFASC to the Underwriter (such information, "Due
Diligence Information") without the consent of WFASC, which consent shall be in
the sole discretion of WFASC; provided, however, that in the event that WFASC
consents to the disclosure of such Due Diligence Information to a third-party,
prior to providing any such Due Diligence Information, the Underwriter shall
cause such third-party to enter into a confidentiality agreement with respect to
such Due Diligence Information in a form prescribed by, or that is otherwise
acceptable in form and substance to, WFASC. For purposes of this Section 11, Due
Diligence Information shall not include any information communicated orally;
provided that such information is not Confidential Information or material
non-public information.
12. 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.
13. 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, Section 10, Section 11 and
Section 14 hereof shall survive the termination or cancellation of this
Agreement.
14. 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 12
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.
15. 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.
16. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
17. 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.
18. 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.
19. Notices. All communications hereunder will be in writing and effective
only on receipt and, if sent to the Underwriter, will be delivered to Xxxxxx
Brothers Inc., 000 Xxxxxxx 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 Fargo
Bank at 0 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000, Attn: Office of General
Counsel, Xxxxx Fargo Home Mortgage division.
* * *
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement by
and among WFASC, Xxxxx Fargo Bank and the Underwriter, effective as of the date
first above written and executed as of the date or dates indicated below.
Very truly yours,
XXXXX FARGO ASSET SECURITIES CORPORATION
By: /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 Underwriting
Agreement is hereby confirmed and
accepted as of the date first above
written.
XXXXXX BROTHERS INC.
By: /s/ Xxxxx Xxxxxxxxxxx
---------------------------------
(Xxxxxx Brothers Inc.)
Exhibit A
XXXXX FARGO ASSET SECURITIES CORPORATION
Asset-Backed Certificates
FORM OF TERMS AGREEMENT
Xxxxxx Brothers Inc. ____________, 20__
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Underwriting Agreement dated [____], 2006.
Title of Certificates: Asset-Backed Certificates,
Series 200_-, (Classes)
(the "Offered
Certificates").
Classes of Certificates: Each of the Class A and
Class M Certificates will
consist of one or more
classes with the prior
consent of Xxxxx Fargo
Asset Securities
Corporation (the
"Seller"), which consent
shall not be unreasonably
withheld.
Aggregate Principal Amount of the Offered $_________(Approximate)
Certificates:
Certificates Not Offered Hereby: The Class [___]
Certificates (the "Other
Certificates").
Subordination: [_________].
Time of Sale Information: Issuer Free Writing
Prospectus, dated [__]
relating to the offering
of the Offered
Certificates.
Minimum Denominations of Offered Certificates:
Class Minimum Denomination Incremental Denomination
----- -------------------- ------------------------
Classes A $ 25,000 $1,000
Classes M $ [ ] $1,000
Description of the Mortgage Loans: Fixed and adjustable
interest rate, monthly
pay, one- to four-family,
subprime residential first
mortgage loans having
original stated terms to
maturity of approximately
[ ] years.
REMIC Election: Yes.
Cut-Off Date: ________________1 ,20__
Final Structure Due Date: ________________ __ ,20__
Distributions: Distributions will be made
monthly on the 25th day of
each month or the next
succeeding Business Day
(the "Distribution Date").
Servicing Fee (Monthly fee payable to the Servicer): [___] % per annum (or as
described in the
prospectus supplement).
Fixed Retained Yield: [Yes][No].
Trustee:
[Securities Administrator:] [_________________]
Independent Accounts:
Book-Entry Registration: Settlement in "same-day"
funds, to the extent
practicable. REMIC
residual certificates will
not be issued in
book-entry form, unless
authorized by the Seller.
Optional Termination: [_____]
Required Ratings: [Ratings]
Mortgage related securities: [_____]
Registration File Number: [333-_____]
Closing Date, Location and Time: ____________, __, 20__;
offices of Cadwalader,
Xxxxxxxxxx & Xxxx LLP, New
York, New York; 10:00 a.m.
New York City time.
Purchase Price for Offered Certificates:
In each case, as offered and sold pursuant to this Terms Agreement.
Notwithstanding any other provision of the above-referenced Underwriting
Agreement, all references to the Registration Statement in the Underwriting
Agreement shall be with reference to File No. [____]
Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in the above-referenced Underwriting
Agreement (which is incorporated herein in its entirety and made a part hereof)
as supplemented by this Terms Agreement, the Seller agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Seller, the Offered
Certificates.
* * *
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement by
and among the Seller, Xxxxx Fargo Bank, N.A. and the Underwriter.
Very truly yours,
XXXXX FARGO ASSET SECURITIES
CORPORATION
By:
-------------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A.
By:
-------------------------------------
Name:
Title:
The foregoing Terms Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXXXX BROTHERS INC.
By:
--------------------------------------
(Xxxxxx Brothers Inc.)
XXXXX FARGO ASSET SECURITIES CORPORATION
Asset-Backed Certificates
TERMS AGREEMENT
Xxxxxx Brothers Inc. March 6, 2007
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Underwriting Agreement dated May 5, 2006.
Title of Certificates: Home Equity Asset-Backed
Certificates, Series
2007-2, Class A-1, Class
X-0, Xxxxx X-0, Class A-4,
Class M-1, Class M-2,
Class M-3, Class M-4,
Class M-5, Class M-6,
Class M-7, Class M-8 and
Class M-9 (the "Offered
Certificates").
Classes of Certificates: Each of the Offered
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 of the Offered $448,281,000 (Approximate)
Certificates:
Certificates Not Offered Hereby: The Class B-1, Class B-2,
Class CE, Class P, Class
R-1 and Class R-2
Certificates (the "Other
Certificates").
Credit Enhancement: Overcollateralization/
Excess Interest/
Subordination.
Time of Sale Information: Issuer Free Writing
Prospectus, dated April
18, 2007, relating to the
offering of the Offered
Certificates.
Minimum Denominations of Offered Certificates:
Class Minimum Denomination Incremental Denomination
----- -------------------- ------------------------
Classes A $ 100,000 $1
Classes M $ 100,000 $1
Description of the Mortgage Loans: Fixed and adjustable
interest rate, monthly
pay, one- to four-family,
subprime residential first
lien and second lien
mortgage loans having
original stated terms to
maturity of approximately
15 to 30 years. Certain of
the Mortgage Loans are
balloon loans. 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: April 1, 2007
Distributions: Distributions will be made
monthly on the 25th day of
each month or the next
succeeding Business Day
(the "Distribution Date").
Servicing Fee (Monthly fee payable to the Servicer): 0.50% per annum (or as
described in the
prospectus supplement).
Fixed Retained Yield: No.
Trustee: HSBC Bank USA, National
Association
Securities Administrator: Xxxxx Fargo Bank, X.X.
XXXX insurer: The insurer that would
issue any financial
guaranty insurance policy,
if any, for any net
interest margin securities
secured by all of a
portion of the Class CE
and Class P Certificates.
Independent Accounts: 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 NIMS insurer or, if
there is no NIMS insurer,
the majority holder of the
Class CE Certificates or,
if there is no majority
holder of the Class CE
Certificates, the
Depositor will have the
right to repurchase all
remaining Mortgage Loans,
and effect an early
retirement of the
Certificates, on a
specified Distribution
Date after the date on
which 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: As set forth in the table
beginning on page S-6 of
the Prospectus Supplement.
Mortgage related securities: None.
Registration File Number: 333-131594
Closing Date, Location and Time: April 20, 2007; offices of
Cadwalader, Xxxxxxxxxx &
Xxxx LLP, New York, New
York; 10:00 a.m. New York
City time.
Purchase Price for Offered Certificates: $[ ]
In each case, as offered and sold pursuant to this Terms Agreement.
Notwithstanding any other provision of the above-referenced Underwriting
Agreement, all references to the Registration Statement in the Underwriting
Agreement shall be with reference to File No. 333-131594.
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.
* * *
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.
XXXXXX BROTHERS INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
(Xxxxxx Brothers Inc.)
