Exhibit 1.1
XXXXX FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
----------------------
______, 20__
[Underwriter]
[Address]
Ladies and Gentlemen:
Xxxxx Fargo Asset Securities Corporation, a Delaware corporation ("WFASC"
or the "Seller") proposes to issue and sell from time to time its Mortgage
Pass-Through Certificates in various series, each series of which may be divided
into classes, in one or more offerings on terms determined at the time of sale.
One or more series of Mortgage Pass-Through Certificates may be offered through
you, as underwriter (the "Underwriter"). Whenever WFASC determines to make an
offering of a series of its Mortgage Pass-Through Certificates through the
Underwriter, WFASC and Xxxxx Fargo Bank, N.A., a national banking association
(in such capacity, "Xxxxx Fargo Bank"), will enter into an agreement (the "Terms
Agreement") with the Underwriter, in substantially the form attached hereto as
Exhibit A, providing for the sale of such series of Mortgage Pass-Through
Certificates to the Underwriter. WFASC is a wholly-owned subsidiary of Xxxxx
Fargo Bank. The Mortgage Pass-Through Certificates of the series and classes to
be sold in each offering to the Underwriter under this Underwriting Agreement,
as supplemented by the applicable Terms Agreement, are hereinafter referred to
as the "Certificates." The Mortgage Pass-Through Certificates of the same series
that are not being sold in each offering to the Underwriter under this
Underwriting Agreement are hereinafter referred to as the "Other Certificates."
The Certificates will have the characteristics set forth in the applicable Terms
Agreement and will evidence the ownership interests in a trust consisting of
mortgage loans acquired by WFASC (the "Mortgage Loans") and related property but
excluding the Fixed Retained Yield, if any, specified in the Terms Agreement
(collectively, the "Trust Estate"). The Mortgage Loans will be of the type
described in, and will have the characteristics and aggregate principal balance
set forth in, the Prospectus Supplement (as hereinafter defined).
The Certificates will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of the close of
business on the date specified in the applicable Terms Agreement, by and among
WFASC, as depositor, Xxxxx Fargo Bank, as master servicer (in such capacity, the
"Master Servicer"), the trustee identified in the applicable Terms Agreement, as
trustee (the "Trustee") and, if applicable, the trust administrator identified
in the applicable Terms Agreement, as trust administrator (the "Trust
Administrator"). The Certificates will be issued in denominations of $25,000, or
such lesser or greater amounts as may be specified in the applicable Terms
Agreement, and will have the terms set forth in the Prospectus Supplement. The
Certificates will conform in all material respects to the description
thereof contained in the applicable Terms Agreement and the Prospectus
Supplement. The Terms Agreement may take the form of an exchange of any standard
form of written communication among the Underwriter, WFASC and Xxxxx Fargo Bank.
Each offering of Mortgage Pass-Through Certificates under this Underwriting
Agreement will be governed by this Underwriting Agreement, as supplemented by
the applicable Terms Agreement. This Underwriting Agreement, as supplemented by
the applicable Terms Agreement, is referred to herein as this "Agreement."
1. Representations and Warranties. (a) WFASC represents and warrants to,
and agrees with, the Underwriter as of the date of the applicable Terms
Agreement that:
(i) A registration statement (File No. - ), including a
prospectus, has been filed with the Securities and Exchange Commission (the
"Commission") and has become effective under the Securities Act of 1933, as
amended (the "Act"), and no stop order suspending the effectiveness of such
registration statement has been issued and no proceedings for that purpose
have been initiated or, to WFASC's knowledge, threatened by the Commission;
and the 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, excluding for purposes of this Agreement any information
contained in any Form 8-K filed and incorporated by reference therein
pursuant to Section 9 hereof or pursuant to any other underwriting
agreement entered into by WFASC, 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 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"; all references herein to the Prospectus or to the
Prospectus, as revised, amended, or supplemented, shall be deemed to
exclude any information contained in any Form 8-K filed and incorporated by
reference therein pursuant to Section 9 hereof or pursuant to any other
underwriting agreement entered into by WFASC).
(ii) The Registration Statement and the Prospectus, as of the date
of the Prospectus Supplement, will conform, and the Registration Statement
and the Prospectus, as revised, amended or supplemented and filed with the
Commission prior to the termination of the offering of the Certificates, as
of their respective effective or issue dates, will conform in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder applicable to such documents as of such
respective dates, and the Registration Statement and the Prospectus, as
revised, amended or supplemented and filed with the Commission as of the
"Closing Date" (as hereinafter defined), will conform in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder applicable to such documents; and the
Registration Statement and the Prospectus, as of the date of the Prospectus
Supplement, will not include any untrue statement of a material fact or
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
2
filed prior to the Closing Date, as of the Closing Date, will not include
any untrue statement of a material fact or will not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that WFASC makes no
representations, warranties or agreements (A) as to the information
contained in or omitted from the Prospectus or any revision or amendment
thereof or supplement thereto in reliance upon and in conformity with
information furnished in writing to WFASC by or on behalf of the
Underwriter specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto or
(B) based on the failure by the Underwriter to deliver to WFASC in a timely
manner any information required to be filed by WFASC pursuant to Section 9
or as to any untrue statement or alleged untrue statement of a material
fact contained in such information, or an omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein, when considered in conjunction with the
Prospectus, and in the light of the circumstances under which they were
made, not misleading, except to the extent that such misstatements are the
result of inaccurate information with respect to the Mortgage Loans
supplied by WFASC to the Underwriter which was not corrected by information
subsequently supplied by WFASC to the Underwriter at any time prior to the
earlier of (Y) one business day prior to the written confirmation of a sale
of the Certificates, which sale results in the loss, claim, damage or
liability arising out of or based upon such misstatement, and (Z) the 90th
day following the filing of the Prospectus, as amended or supplemented,
with the Commission.
(iii) Assuming that certain of the Certificates are rated at the time
of issuance in one of the two highest rating categories by a nationally
recognized statistical rating organization, each such Certificate at such
time will be a "mortgage related security" as such term is defined in
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(iv) Each of the Certificates will conform in all material respects
to the description thereof contained in the Prospectus, and each of the
Certificates, when validly authenticated, issued and delivered in
accordance with the Pooling and Servicing Agreement, will be duly and
validly issued and outstanding and entitled to the benefits of the Pooling
and Servicing Agreement, and immediately prior to the delivery of the
Certificates to the Underwriter, WFASC will own the Certificates, and upon
such delivery the Underwriter will acquire title thereto, free and clear of
any lien, pledge, encumbrance or other security interest other than one
created or granted by the Underwriter or permitted by the Pooling and
Servicing Agreement.
(v) This Agreement has been duly authorized, executed and delivered
by WFASC and, as of the Closing Date, the Pooling and Servicing Agreement
will have been duly authorized, executed and delivered by WFASC and will
conform in all material respects to the description thereof contained in
the Prospectus and, assuming the valid execution thereof by the Trustee,
the Trust Administrator, if applicable, and the Master Servicer, the
Pooling and Servicing Agreement will constitute a valid and binding
agreement of WFASC enforceable in accordance with its terms, except as the
same may
3
be limited by bankruptcy, insolvency, reorganization or other laws relating
to or affecting the enforcement of creditors' rights and by general equity
principles.
(vi) WFASC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Pooling and Servicing Agreement and this Agreement.
(vii) Neither the issuance or delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein, nor
compliance with the provisions of the Pooling and Servicing Agreement or
this Agreement, will conflict with or result in the breach of any material
term or provision of the certificate of incorporation or bylaws of WFASC,
and WFASC is not in breach or violation of or in default (nor has an event
occurred which with notice or lapse of time or both would constitute a
default) under the terms of (i) any indenture, contract, lease, mortgage,
deed of trust, note agreement or other evidence of indebtedness or other
agreement, obligation or instrument to which WFASC is a party or by which
it or its properties are bound, or (ii) any law, decree, order, rule or
regulation applicable to WFASC of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or arbitrator
having jurisdiction over WFASC, or its properties, the default in or the
breach or violation of which would have a material adverse effect on WFASC
or the ability of WFASC to perform its obligations under the Pooling and
Servicing Agreement; and neither the delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein, nor the
compliance with the provisions of the Pooling and Servicing Agreement or
this Agreement will result in such a breach, violation or default which
would have such a material adverse effect.
(viii) No filing or registration with, notice to, or consent,
approval, authorization or order or other action of, any court or
governmental authority or agency is required for the consummation by WFASC
of the transactions contemplated by this Agreement or the Pooling and
Servicing Agreement (other than as required under state securities laws or
Blue Sky laws, as to which no representations and warranties are made by
WFASC), except such as have been, or will have been prior to the Closing
Date, obtained under the Act, and such recordations of the assignment of
the Mortgage Loans to the Trustee or, if applicable, to the Trust
Administrator on behalf of the Trustee, pursuant to the Pooling and
Servicing Agreement that have not yet been completed.
(ix) There is no action, suit or proceeding before or by any court,
administrative or governmental agency, or other tribunal, domestic or
foreign, now pending to which WFASC is a party, or, to the best of WFASC's
knowledge, threatened against WFASC, which could reasonably result
individually or in the aggregate in any material adverse change in the
condition (financial or otherwise), earnings, affairs, regulatory situation
or business prospects of WFASC or could reasonably interfere with or
materially and adversely affect the consummation of the transactions
contemplated herein.
4
(x) On the Closing Date the representations and warranties made by
WFASC in the Pooling and Servicing Agreement will be true and correct in
all material respects as of the date made.
(xi) At the time of execution and delivery of the Pooling and
Servicing Agreement, WFASC will own the mortgage notes (the "Mortgage
Notes") being transferred to the Trust Estate pursuant thereto, free and
clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim or
other security interest (collectively, "Liens"), except to the extent
permitted in the Pooling and Servicing Agreement, and will not have
assigned to any person other than the Trust Estate any of its right, title
or interest, exclusive of the Fixed Retained Yield, if any, in the Mortgage
Notes. WFASC will have the power and authority to transfer the Mortgage
Notes to the Trust Estate and to transfer the Certificates to the
Underwriter, and, upon execution and delivery to the Trustee of the Pooling
and Servicing Agreement, payment by the Underwriter for the Certificates,
and delivery to the Underwriter of the Certificates, the Trust Estate will
own the Mortgage Notes (exclusive of the Fixed Retained Yield, if any) and
the Underwriter will acquire title to the Certificates, in each case free
of Liens except to the extent permitted by the Pooling and Servicing
Agreement.
(xii) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the Pooling
and Servicing Agreement and the Certificates have been or will be paid by
WFASC on or prior to the Closing Date, except for fees for recording
assignments of mortgage loans to the Trustee or, if applicable, to the
Trust Administrator on behalf of the Trustee, pursuant to the Pooling and
Servicing Agreement that have not yet been completed, which fees will be
paid by WFASC in accordance with the Pooling and Servicing Agreement.
(xiii) The transfer of the Mortgage Loans and the related assets to
the Trust Estate on the Closing Date will be treated by WFASC for financial
accounting and reporting purposes as a sale of assets and not as a pledge
of assets to secure debt.
(b) Xxxxx Fargo Bank represents and warrants to, and agrees with, the
Underwriter as of the date of the applicable Terms Agreement that:
(i) Xxxxx Fargo Bank is a national banking association duly
chartered and validly existing in good standing under the laws of the
United States with corporate power and authority to own its properties and
conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement.
(ii) The execution and delivery by Xxxxx Fargo Bank of this Agreement
are within the corporate power of Xxxxx Fargo Bank and have been duly
authorized by all necessary corporate action on the part of Xxxxx Fargo
Bank.
(iii) Neither the execution and delivery of this Agreement, nor the
consummation by Xxxxx Fargo Bank of any other of the transactions
contemplated herein, nor compliance with the provisions of this Agreement,
will conflict with or result in the
5
breach of any material term or provision of the corporate charter or bylaws
of Xxxxx Fargo Bank.
(iv) This Agreement has been duly authorized, executed and delivered
by Xxxxx Fargo Bank.
2. Purchase Price. The purchase price at which the Underwriter will
purchase the Certificates shall be the aggregate purchase price set forth in the
applicable Terms Agreement.
3. Delivery and Payment. The Certificates shall be delivered at the
office, on the date and at the time specified in the applicable Terms Agreement,
which place, date and time may be changed by agreement between the Underwriter
and WFASC (such date and time of delivery of and payment for the Certificates
being hereinafter referred to as the "Closing Date"). Delivery of the
Certificates shall be made to the Underwriter against payment by the Underwriter
of the purchase price therefor to or upon the order of WFASC in same-day funds.
The Certificates shall be registered in such names and in such denominations as
the Underwriter may have requested not less than two full business days prior to
the Closing Date. WFASC agrees to have the Certificates available for
inspection, checking and packaging in New York, New York, on the business day
prior to the Closing Date.
4. Offering by Underwriter. It is understood that the Underwriter
proposes to offer the Certificates for sale as set forth in the Prospectus and
that the Underwriter will not offer, sell or otherwise distribute the
Certificates (except for the sale thereof in exempt transactions) in any state
in which the Certificates are not exempt from registration under state
securities laws or Blue Sky laws (except where the Certificates will have been
qualified for offering and sale at the direction of the Underwriter under such
state securities laws or Blue Sky laws).
In connection with such offering(s), the Underwriter agrees to provide
WFASC with information related to the offer and sale of the Certificates that is
reasonably requested by WFASC, from time to time (but not in excess of one year
from the Closing Date), and necessary for complying with its tax reporting
obligations, including, without limitation, the issue price of the Certificates.
The Underwriter agrees that it will not sell or transfer any Certificate or
interest therein in the initial sale or transfer of such Certificate by the
Underwriter in an amount less than the minimum denomination for such Certificate
to be set forth in the Prospectus Supplement.
The Underwriter further agrees that (i) if it delivers to an investor the
Prospectus in portable document format ("PDF"), upon the Underwriter's receipt
of a request from the investor within the period for which delivery of the
Prospectus is required, the Underwriter will promptly deliver or cause to be
delivered to the investor, without charge, a paper copy of the Prospectus and
(ii) it will provide to WFASC any Computational Materials (as defined in Section
9) in electronic format and will use reasonable efforts to provide to WFASC such
Computational Materials 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.
6
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 (but will not include any information required to be
filed under Section 9), 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 (i) any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein in the light of the circumstances under which they were
made not misleading, or (ii) it shall be necessary to revise, amend or
supplement the Prospectus to comply with the Act or the rules and regulations of
the Commission thereunder, WFASC promptly will notify the Underwriter and will,
upon request of the Underwriter, or may, after consultation with the
Underwriter, prepare and file with the Commission a revision, amendment or
supplement which will correct such statement or omission or effect such
compliance, and furnish without charge to the Underwriter as many copies as the
Underwriter may from time to time reasonably request of an amended Prospectus or
a supplement to the Prospectus which will correct such statement or omission or
effect such compliance.
(c) WFASC will (i) furnish to the Underwriter and counsel for the
Underwriter, without charge, conformed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus relating
to the Certificates is required under the Act, as many copies of the Prospectus
and any revisions or amendments thereof or supplements thereto as may be
reasonably requested, and (ii) file promptly all reports and any definitive
proxy or information statements required to be filed by WFASC with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (as
such requirements may be modified pursuant to Section 12(h) of the Exchange Act)
subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus is required under applicable law in connection with the offering or
sale of the Certificates.
7
(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 and reproducing the
Registration Statement, the Prospectus, the Pooling and Servicing Agreement and
the Certificates, (ii) the cost of delivering the Certificates to the
Underwriter, insured to the satisfaction of the Underwriter, (iii) the fees
charged by (a) securities rating services for rating the Certificates and (b)
WFASC's independent accountants in connection with the agreed-upon procedures
letter to be delivered pursuant to Section 6(g) hereof, (iv) the fees and
expenses of the Trustee, the Trust Administrator, if applicable, and any agent
of the Trustee or the Trust Administrator, if applicable, and the fees and
disbursements of counsel for the Trustee and the Trust Administrator, if
applicable, in connection with the Pooling and Servicing Agreement and the
Certificates, and (v) all other costs and expenses incidental to the performance
by WFASC of WFASC's obligations hereunder which are not otherwise specifically
provided for in this subsection. It is understood that, except as provided in
this paragraph (d) and in Sections 7 and 12 hereof, the Underwriter will pay all
of its own expenses, including (i) the fees of any counsel to the Underwriter,
(ii) any transfer taxes on resale of any of the Certificates by it, (iii) any
advertising expenses connected with any offers that the Underwriter may make,
(iv) any expenses for the qualification of the Certificates under state
securities laws or Blue Sky laws, including filing fees and the fees and
disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation of any Blue Sky survey and (v) any expenses
incurred in connection with the preparation of any Computational Materials,
Structural Term Sheets and Collateral Term Sheets (each as defined in Section 9)
and the filing of such materials with the Commission, including the fees charged
by the independent accountants in connection with any comfort letter to be
obtained by WFASC pursuant to Section 9(d)(iii) hereof regarding the information
in any Collateral Term Sheets to be filed pursuant to Section 9(a) hereof.
(e) So long as any Certificates are outstanding, upon the request of the
Underwriter, WFASC will, or will cause the Master Servicer to, furnish to the
Underwriter, as soon as available, a copy of (i) the annual statement of
compliance delivered by the Master Servicer to the Trustee under the Pooling and
Servicing Agreement, (ii) the annual independent public accountants' servicing
report furnished to the Trustee pursuant to the Pooling and Servicing Agreement,
(iii) each report of WFASC regarding the Certificates filed with the Commission
under the Exchange Act or mailed to the holders of the Certificates, and (iv)
from time to time, such other information concerning the Certificates which may
be furnished by WFASC or the Master Servicer without undue expense and without
violation of applicable law.
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
8
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,
9
moratorium, receivership or other laws relating to or affecting creditors'
rights generally or the rights of creditors of banks, and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity), and except that the enforcement of rights
with respect to indemnification and contribution obligations and provisions
(a) purporting to waive or limit rights to trial by jury, oral amendments
to written agreements or rights of set off or (b) relating to submission to
jurisdiction, venue or service of process, may be limited by applicable law
or considerations of public policy;
(iv) The Certificates have been duly authorized and executed by
WFASC and, when the Certificates have been duly executed, authenticated and
delivered in the manner contemplated in the Pooling and Servicing Agreement
and paid for by the Underwriter pursuant to this Agreement and the
applicable Terms Agreement, the Certificates will be validly issued and
outstanding and entitled to the benefits provided by the Pooling and
Servicing Agreement;
(v) The issuance and sale by WFASC of the Certificates to the
Underwriter pursuant to this Agreement and the applicable Terms Agreement,
the compliance by WFASC with the provisions of this Agreement, the
applicable Terms Agreement and the Pooling and Servicing Agreement, and the
consummation by WFASC of the transactions therein contemplated (a) do not
require the consent, approval, authorization, order, or qualification of or
registration with any New York State or federal governmental authority or,
to the knowledge of such counsel, any New York State or federal court,
except such as may be required under state securities or blue sky laws,
recordations of the assignment of the Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement that have not yet been
completed, and such other approvals as have been obtained or effected, (b)
do not conflict with or result in a violation of any provision of the
certificate of incorporation and bylaws of WFASC or any New York State or
federal law, and (c) to the knowledge of such counsel, do not conflict with
or result in a breach or violation of any material indenture, agreement or
instrument to which WFASC is a party or by which it or any of its property
is bound, or any judgment, decree or order applicable to WFASC, of any New
York State or federal court, regulatory body, administrative agency or
other governmental authority;
(vi) To the knowledge of such counsel, there is no legal or
governmental action, investigation or proceeding pending or threatened
against WFASC (a) asserting the invalidity of this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement or the
Certificates, (b) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this Agreement
and the applicable Terms Agreement, (c) which would materially and
adversely affect the performance by WFASC of its obligations under, or the
validity or enforceability (with respect to WFASC) of, this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement or the
Certificates or (d) seeking to affect adversely the federal income tax
attributes of the Certificates as described in the Prospectus and the
Prospectus Supplement under the headings "Certain Federal Income Tax
Consequences" and "Federal Income Tax Considerations," respectively. For
purposes of the opinion set forth in this paragraph, such counsel has not
regarded any
10
legal or governmental actions, investigations or proceedings to be
"threatened" unless the potential litigant or governmental authority has
manifested to WFASC a present intention to initiate such proceedings;
(vii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended;
(viii) The Trust Estate (as defined in the Pooling and Servicing
Agreement) is not required to be registered under the Investment Company
Act of 1940, as amended;
(ix) The Registration Statement has been declared effective under
the Act, and, to the knowledge of such counsel, no stop order with respect
thereto has been issued by the Commission;
(x) The Registration Statement, as of its effective date, and the
Prospectus and the Prospectus Supplement, as of the dates thereof (in each
case, with the exception of any information incorporated by reference
therein and any numerical, financial, statistical and quantitative data
included therein, as to which such counsel expresses no view), appeared on
their respective faces to be appropriately responsive in all material
respects to the requirements of the Act and the rules and regulations
thereunder applicable to such documents as of the relevant date;
(xi) The statements in the Prospectus Supplement under the headings
"Federal Income Tax Considerations" and "ERISA Considerations," insofar as
such statements purport to summarize matters of federal law or legal
conclusions with respect thereto have been reviewed by such counsel and are
correct in all material respects; and
(xii) Assuming that the Certificates are rated at the time of
issuance in one of the two highest rating categories by a nationally
recognized statistical rating organization, each such Certificate at such
time will be a "mortgage related security" as such term is defined in
Section 3(a)(41) of the Exchange Act.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the Pooling and
Servicing Agreement. Such opinion may assume the due authorization, execution
and delivery of the instruments and documents referred to therein by the parties
thereto other than WFASC. Such opinion may be qualified as an opinion only on
the laws of the State of New York, the laws of each state in which the writer of
the opinion is admitted to practice law and the federal law of the United
States. To the extent that such firm relies upon the opinion of other counsel in
rendering any portion of its opinion, the opinion of such other counsel shall be
attached to and delivered with the opinion of such firm that is delivered to the
Underwriter.
(e) The Master Servicer shall have furnished to the Underwriter an
opinion, dated the Closing Date, of counsel to the Master Servicer (who may be
an employee of the Master Servicer), to the effect that:
11
(i) The Master Servicer has been duly incorporated and is validly
existing as a national banking association and has the power and authority
to enter into, and to take all action required of it under, the Pooling and
Servicing Agreement and the Servicing Agreement (as defined in the Pooling
and Servicing Agreement);
(ii) The Pooling and Servicing Agreement and the Servicing Agreement
have been duly authorized, executed and delivered by the Master Servicer
and, assuming valid execution and delivery thereof by the other parties
thereto, the Pooling and Servicing Agreement and the Servicing Agreement
constitute a valid and legally binding agreements of the Master Servicer,
enforceable against the Master Servicer in accordance with their terms,
subject to bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting creditors' rights generally and to
general equity principles regardless of whether such enforcement is
considered in a proceeding at law or in equity;
(iii) No consent, approval, authorization or order of any Minnesota or
federal court or governmental agency or body is required for the
consummation by the Master Servicer of the transactions contemplated by the
terms of the Pooling and Servicing Agreement and the Servicing Agreement
except any such as may be required under the blue sky laws of any
jurisdiction in connection with the offering, sale or acquisition of the
Certificates, any recordations of the assignments of the mortgage loans
evidenced by the Certificates pursuant to the Pooling and Servicing
Agreement that have not yet been completed and any approvals as have been
obtained;
(iv) The consummation by the Master Servicer of the transactions
contemplated by the terms of the Pooling and Servicing Agreement and the
Servicing Agreement do not, to the knowledge of such counsel, conflict with
or result in a breach or violation of any material term or provision of, or
constitute a default under, the charter or bylaws of the Master Servicer,
any indenture or other agreement or instrument to which the Master Servicer
is a party or by which it is bound, any Minnesota or federal statute or
regulation applicable to the Master Servicer or, to the knowledge of such
counsel, any order of any Minnesota or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Master Servicer; and
(v) To the best knowledge of such counsel after due inquiry, there
are no legal or governmental actions, investigations or proceedings pending
to which the Master Servicer is a party, or threatened against the Master
Servicer, (A) asserting the invalidity of the Pooling and Servicing
Agreement or the Servicing Agreement or (B) which might materially and
adversely affect the performance by the Master Servicer of its obligations
under, or the validity or enforceability of, the Pooling and Servicing
Agreement or the Servicing Agreement. For purposes of the foregoing, such
counsel may state that it has not regarded any legal or governmental
actions, investigations or proceedings to be "threatened" unless the
potential litigant or governmental authority has manifested to a member of
the law division of Xxxxx Fargo & Company having responsibility for
litigation matters involving the master servicing activities of the Master
Servicer a present intention to initiate such proceedings.
12
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Pooling and Servicing Agreement or
Servicing Agreement. Such opinion may assume the due authorization, execution
and delivery of the instruments and documents referred to therein by the parties
thereto other than the Master Servicer. Such opinion may be qualified as an
opinion only on the laws of the State of Minnesota and the federal law of the
United States and, with respect to the opinions set forth in paragraph (e)(ii)
above, the laws of the State of New York. To the extent that such counsel relies
upon the opinion of other counsel in rendering any portion of its opinion, the
opinion of such other counsel shall be attached to and delivered with the
opinion of such counsel that is delivered to the Underwriter.
(f) The Underwriter shall have received from counsel for the Underwriter
such opinion or opinions, dated the Closing Date, with respect to the issuance
and sale of the Certificates, the Registration Statement and the Prospectus, and
such other related matters as the Underwriter may reasonably require.
(g) WFASC's independent accountants, as identified in the applicable Terms
Agreement (the "Independent Accountants"), shall have furnished to the
Underwriter a letter 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.
(h) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of WFASC which the Underwriter concludes, in the
reasonable judgment of the Underwriter, materially impairs the investment
quality of the Certificates so as to make it impractical or inadvisable to
proceed with the public offering or the delivery of the Certificates as
contemplated by the Prospectus.
(i) The Certificates shall be rated not lower than the required ratings
set forth in the applicable Terms Agreement, such ratings shall not have been
rescinded and no public announcement shall have been made that either rating of
the Certificates has been placed under review (otherwise than for possible
upgrading).
(j) The Underwriter shall have received an opinion of special counsel to
WFASC, dated the Closing Date, in form and substance satisfactory to the
Underwriter, with respect to certain state tax consequences under the tax laws
of the jurisdiction in which the Trustee is located relating to the Trust Estate
and the holders of the Certificates.
(k) The Underwriter shall have received copies of any opinions of counsel
to WFASC supplied to the rating organizations relating to certain matters with
respect to the Certificates. Any such opinions shall be dated the Closing Date
and addressed to the Underwriter or accompanied by reliance letters to the
Underwriter or shall state that the Underwriter may rely upon them.
(l) WFASC shall have furnished to the Underwriter such further
information, certificates and documents as the Underwriter may reasonably have
requested, and all
13
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.
(m) 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 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 arise out of or are
based upon 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 and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it or him in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that WFASC
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon (A) any such untrue statement
or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to WFASC by
or on behalf of the Underwriter specifically for use in connection with the
preparation thereof or (B) any untrue statement or alleged untrue statement of a
material fact contained in any information delivered by the Underwriter to WFASC
pursuant to Section 9(e), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, when considered in conjunction with
the Prospectus, and in the light of the circumstances under which they were
made, not misleading, except to the extent that such misstatements are the
result of inaccurate information with respect to the Mortgage Loans supplied by
WFASC to the Underwriter which was not corrected by information subsequently
supplied by WFASC to the Underwriter at any time prior to the earlier of (i) one
business day prior to the written confirmation of a sale of the Certificates,
which sale results in the loss, claim, damage or liability arising out of or
based upon such misstatement, and (ii) the 90th day following the filing of the
Prospectus, as amended or supplemented, with the Commission; provided, further,
that WFASC shall not be liable to the Underwriter and each person who controls
the Underwriter with respect to any Prospectus or any Prospectus Supplement to
the extent that any loss, claim, damage or liability results from the fact that
the Certificates were offered or sold to a person to whom there was not
delivered, at or prior to the written confirmation of such sale, a copy of the
Prospectus or of the Prospectus as then revised, amended or supplemented in any
case where such delivery is required by the Act or the Exchange Act, if WFASC
has previously furnished copies thereof to
14
the Underwriter. This indemnity agreement will be in addition to any liability
which WFASC may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless WFASC, its
officers who signed the Registration Statement or any amendment thereof, its
directors, and each person who controls WFASC within the meaning of either the
Act or the Exchange Act, and Xxxxx Fargo Bank, and each person who controls
Xxxxx Fargo Bank within the meaning of either the Act or the Exchange Act, (i)
to the same extent as the foregoing indemnities from WFASC to the Underwriter,
but only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to WFASC by or on behalf of the Underwriter
specifically for use in connection with the preparation of the Prospectus or any
revision or amendment thereof or supplement thereto or (ii) insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) are based
on, result from or arise out of any untrue statement or alleged untrue statement
of a material fact contained in any information delivered by the Underwriter to
WFASC pursuant to Section 9(e), or arise out of or are based upon the omission
or alleged omission to state in such information a material fact required to be
stated, therein or necessary to make the statements therein, when considered in
conjunction with the Prospectus, and in the light of the circumstances under
which they were made, not misleading; except to the extent that such
misstatements are the result of inaccurate information with respect to the
Mortgage Loans supplied by WFASC to the Underwriter which was not corrected by
information subsequently supplied by WFASC to the Underwriter at any time prior
to the earlier of (A) one business day prior to the written confirmation of a
sale of the Certificates, which sale results in the loss, claim, damage or
liability arising out of or based upon such misstatement, and (B) the 90th day
following the filing of the Prospectus, as amended or supplemented, with the
Commission. This indemnity agreement will be in addition to any liability which
the Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Section 7. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation by the indemnified party undertaken with
notice to and approval by the indemnifying party.
15
(d) If the indemnification provided for in this Section 7 is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to (A) in subsection (a) or (b)(i) above in such proportion
as is appropriate to reflect both (i) the relative benefits received by WFASC on
the one hand and the Underwriter on the other from the offering of the
Certificates and (ii) the relative fault of WFASC on the one hand and the
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations and (B) in subsection (b)(ii) above, in such
proportion as is appropriate to reflect the relative fault of the Underwriter on
the one hand and WFASC on the other in connection with the actions, statements
or omissions that resulted in such losses, claims, damages or liabilities. The
relative benefits received by WFASC on the one hand and the Underwriter on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by WFASC bear to the
difference between (i) the total price at which the Certificates underwritten by
the Underwriter and distributed to the public were offered to the public, and
(ii) the portion of the total net proceeds from the offering (before deducting
expenses) received by WFASC attributable to the Certificates. The relative fault
for the purposes of clauses (A) and (B) above shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
related to information supplied by WFASC or the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. WFASC, Xxxxx Fargo Bank and the
Underwriter agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), and with respect to losses, claims, damages or liabilities
referred to in subsection (a) or (b) above, the Underwriter shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Certificates underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of WFASC under this Section 7 shall be in addition to
any liability which WFASC may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls the Underwriter
within the meaning of the Act; and the obligations of the Underwriter under this
Section 7 shall be in addition to any liability which the Underwriter may
otherwise have and shall extend, upon the same terms and conditions, to (i) the
officers of WFASC who signed the Registration Statement or any amendment
thereof, to its directors, and to each person who controls WFASC within the
meaning of either the Act or the Exchange Act and (ii) each person who controls
Xxxxx Fargo Bank within the meaning of either the Act or the Exchange Act.
16
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. Filing of Investor Information. (a) WFASC agrees to file with the
Commission current reports on Form 8-K under the Exchange Act in accordance with
paragraph (c) below, containing the Computational Materials, Structural Term
Sheets and Collateral Term Sheets described in paragraph (b) below, provided by
the Underwriter to WFASC in accordance with paragraph (e) below and subject, in
the case of Computational Materials and Structural Term Sheets, to the
conditions precedent set forth in paragraph (d) below for the purpose of
permitting the Underwriter to comply as to the Certificates with the No-Action
Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx Structured Asset
Corporation and the No-Action Letter of May 27, 1994 issued by the Commission to
the Public Securities Association (collectively, the "Xxxxxx/PSA Letter") and
the No-Action Letter of February 17, 1995 issued by the Commission to the Public
Securities Association (the "PSA Letter").
(b) (i) For purposes of Section 9(a), Computational Materials shall mean
any information with respect to the Certificates which constitutes
"computational materials", as defined in the Xxxxxx/PSA Letter, as clarified by
footnote 8 of the PSA Letter ("Computational Materials"), excluding (i) complex
multi-scenario vector analyses utilizing more than five prepayment speed changes
per scenario, (ii) option-adjusted spreads and (iii) option-adjusted durations,
prepared by the Underwriter and delivered to investors, which information may be
aggregated and filed in consolidated form to the extent described in the
Xxxxxx/PSA Letter, and that meets the criteria set forth in Section 9(b)(ii).
For purposes of Section 9(a), Structural Term Sheets and Collateral Term
Sheets shall mean any information with respect to the Certificates which
constitutes "Structural Term Sheets" and "Collateral Term Sheets" as defined in
the PSA Letter and that, with respect to Structural Term Sheets meets the
criteria set forth in Section 9(b)(ii).
(ii) For purposes of Section 9(a), Computational Materials and
Structural Term Sheets are those that:
(A) are generated based on assumptions regarding the payment
priorities and characteristics of a class of Certificates that will be
actually issued and purchased by the Underwriter; and
(B) are provided to prospective investors under the following
conditions prior to the time of filing of the Prospectus pursuant to
Rule 424(b) under the Act:
17
(x) in the case of each prospective investor that has orally indicated to
the Underwriter that it will purchase all or a portion of a class of
Certificates to which such Computational Materials or Structural Term Sheets, as
the case may be, relate, the Computational Materials or Structural Term Sheets,
as the case may be, relating to such class that are sent to such prospective
investor; and
(y) for any prospective investor, all Computational Materials or
Structural Term Sheets, as the case may be, that are sent to such prospective
investor after the structure for the entire issue of Certificates is finalized.
Computational Materials and Structural Term Sheets required to be filed
with the Commission will not include materials relating to abandoned structures
or materials that are furnished to prospective investors prior to the time that
the structure of the entire issue of Certificates is finalized where such
investors have not indicated to the Underwriter their intention to purchase the
Certificates described in such materials.
(c) (i) Subject to the timely receipt pursuant to Section 9(e)(i) of the
Computational Materials and Structural Term Sheets to be filed and the
satisfaction of the condition precedent set forth in paragraph (d), WFASC agrees
and covenants to file the Computational Materials and Structural Term Sheets
delivered to it by the Underwriter not later than the close of business on the
day of delivery of the final Prospectus to the Underwriter unless the Commission
is closed on that day in which case such filing will be made on the next
business day on which the Commission is open; provided, however, that if the
condition precedent set forth in paragraph (d) has been satisfied prior to the
business day preceding the day of delivery of the final Prospectus to the
Underwriter, WFASC will use its best reasonable efforts to file the
Computational Materials or Structural Term Sheets, as the case may be, on the
business day following the satisfaction of such condition precedent. Upon the
filing of the Computational Materials or Structural Term Sheets, as the case may
be, with the Commission, WFASC will transmit a notice by telecopy to the counsel
for the Underwriter, as promptly as reasonably practicable.
(ii) Subject to the timely receipt pursuant to Section 9(e)(ii) of
the Collateral Term Sheets to be filed, WFASC agrees and covenants to file
the Collateral Term Sheets delivered to it by the Underwriter within two
business days of delivery.
(iii) WFASC agrees to file any information delivered to WFASC for
filing pursuant to Section (9)(e)(v) (A) or (B) on the business day
following the receipt of the Independent Accountant's letter pursuant to
Section 9(d) with respect to such information.
(iv) WFASC agrees to file any Collateral Term Sheet delivered to
WFASC for filing pursuant to Section 9(e)(v)(B) within two business days
following the delivery of such Collateral Term Sheet.
(d) (i) It shall be a condition precedent to WFASC's obligation to file
Computational Materials and Structural Term Sheets pursuant to this Section 9,
that WFASC shall have received a letter not later than 5:00 P.M. on the business
day prior to such filing from WFASC's Independent Accountants, reflecting the
performance of procedures previously agreed to by
18
WFASC and otherwise in form and substance satisfactory to WFASC with respect to
the structural, financial, numerical or statistical information to be filed.
WFASC agrees to cooperate with the Independent Accountants to facilitate the
obtaining of such letter but nothing contained herein shall be construed as a
representation by WFASC that it will cause the Independent Accountants to
provide such letter or shall require WFASC to accept a letter in substance
unsatisfactory to it. Such letter will be obtained at the sole expense of the
Underwriter. The Underwriter acknowledges and agrees that WFASC is not able to
obtain such letter with respect to (i) complex multi-scenario vector analyses
utilizing more than five prepayment speed changes per scenario, (ii)
option-adjusted spreads and (iii) option-adjusted durations, and accordingly,
the Underwriter agrees it will not disseminate any such information in written
form to an investor prior to its delivery of a final Prospectus to such
investor.
(ii) The Underwriter agrees to cooperate with the Independent
Accountants and agrees to furnish revised Computational Materials or
Structural Term Sheets, if necessary, in order for the Independent
Accountants to provide such letter.
(iii) WFASC intends, but is not obligated, to obtain a letter from the
Independent Accountants regarding the information set forth in the final
Collateral Term Sheets filed or to be filed pursuant to Section 9(a) that
were delivered to WFASC prior to the filing of the Prospectus pursuant to
Rule 424 under the Act. Any such letter will be at the expense of the
Underwriter. If the Independent Accountants are unable to deliver such
letter because of inaccuracies in the Collateral Term Sheets, the
provisions of Section 9(e)(v)(B) shall apply.
(e) (i) The Underwriter agrees and covenants to deliver to WFASC no later
than four business days before the delivery of the final Prospectus to the
Underwriter copies of all Computational Materials and Structural Term Sheets
that are required under the Xxxxxx/PSA Letter or the PSA Letter, as the case may
be, to be filed with the Commission.
(ii) The Underwriter agrees and covenants to deliver to WFASC any
Collateral Term Sheets that are required under the PSA Letter to be filed
with the Commission by the close of business on the day of the delivery of
such Collateral Term Sheets to an investor.
(iii) The Underwriter represents and warrants to WFASC that the
Computational Materials, Structural Term Sheets and Collateral Term Sheets
to be furnished to WFASC by the Underwriter for filing with the Commission
pursuant to Section 9(c)(i) or (ii) will constitute all Computational
Materials (either in original, aggregated or consolidated form), Structural
Term Sheets and Collateral Term Sheets with respect to the Certificates
that (i) were furnished to prospective investors by the Underwriter in
connection with its offer and sale of the Certificates and (ii) are
required to be filed with the Commission in order to secure the relief
granted under the Xxxxxx/PSA Letter or the PSA Letter, as the case may be.
(iv) The Underwriter represents and warrants to, and covenants with,
WFASC that any information produced by it and filed by WFASC with the
Commission pursuant to this Section 9 as of the date of filing will not
include any untrue statements of a
19
material fact and, when considered in conjunction with the Prospectus, will
not omit to state any material facts required to be stated therein or
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Underwriter makes no representation with respect to the
accuracy of the Prospectus exclusive of any information filed with the
Commission pursuant to this Section 9 and any other written information
furnished to WFASC by or on behalf of the Underwriter specifically for use
in connection with the Prospectus and, provided further, that the
Underwriter makes no representation to the extent such misstatements are
the result of inaccurate information with respect to the Mortgage Loans
supplied by WFASC to the Underwriter which was not corrected by information
subsequently supplied by WFASC to the Underwriter prior to the earlier of
(A) one business day prior to the written confirmation of a sale of the
Certificates which sale results in a loss, claim, damage or liability
arising out of or based upon such misstatement, and (B) the 90th day
following the filing of the Prospectus, as amended or supplemented, with
the Commission.
(v) The Underwriter covenants with WFASC that:
(A) if a filing was made with the Commission with respect to a structure
which was considered final with respect to any class of Certificates, and such
structure is subsequently revised, the Underwriter shall prepare and deliver to
WFASC for filing with the Commission, pursuant to Section 9(c)(ii), revised
Computational Materials and Structural Term Sheets based on such revised
structure; and
(B) if any Computational Materials, Structural Term Sheets or Collateral
Term Sheets filed with the Commission are determined by the Underwriter or
WFASC, at any time prior to the 90th day following the filing of the Prospectus,
as amended or supplemented, with the Commission, to contain any information that
is inaccurate or misleading, and WFASC determines that as a result such
Computational Materials, Structural Term Sheets or Collateral Term Sheets
include an untrue statement of a material fact or, when considered in
conjunction with the Prospectus, will omit to state any material fact required
to be stated therein or necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading, the
Underwriter shall prepare and deliver to WFASC for filing with the Commission
pursuant to Section 9(c)(iii), corrected Computational Materials, Structural
Term Sheets or Collateral Term Sheets as the case may be; provided, however,
that if such information is inaccurate or misleading solely because it is based
on inaccurate information with respect to the Mortgage Loans supplied by WFASC
to the Underwriter, the Underwriter shall be under no obligation to prepare and
deliver to WFASC corrected Computational Materials, Structural Term Sheets or
Collateral Term Sheets, as the case may be, unless and until corrected
information is supplied by WFASC to the Underwriter and such corrected
information is supplied by WFASC to the Underwriter at any time prior to the
90th day following the filing of the Prospectus, as amended or supplemented,
with the Commission.
(vi) The Underwriter covenants with WFASC that any Computational
Materials, Structural Term Sheets or Collateral Term Sheets delivered to
prospective investors shall contain the following legend:
20
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY [UNDERWRITER].
NEITHER THE ISSUER OF THE CERTIFICATES NOR ANY OF ITS AFFILIATES MAKES
ANY REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF THE
INFORMATION HEREIN."
or shall contain a legend mutually agreed upon between the Underwriter and
WFASC.
In addition, the Underwriter covenants with WFASC that any Collateral Term
Sheets delivered to prospective investors shall contain the additional legend:
"THE INFORMATION HEREIN IS PRELIMINARY AND WILL BE SUPERSEDED BY THE
APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER INFORMATION
SUBSEQUENTLY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION."
and, except for the initial Collateral Term Sheet sent to an investor,
"SUCH INFORMATION SUPERSEDES THE INFORMATION IN ALL PRIOR COLLATERAL
TERM SHEETS, IF ANY."
or shall contain a legend mutually agreed upon between the Underwriter and
WFASC.
(f) 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.
(g) The Underwriter understands that WFASC does not intend, and is
undertaking no obligation, to file any Computational Materials, Structural Term
Sheets or Collateral Term Sheets concerning the Certificates delivered by the
Underwriter to a prospective investor after the final Prospectus is available
except as provided in Section 9(c).
(h) The Underwriter covenants with WFASC that after the final Prospectus
is available the Underwriter shall not distribute any written information
concerning the Certificates to a prospective investor unless such information is
preceded or accompanied by the final Prospectus, other than any written
information which is permitted to be distributed by the Act, the Exchange Act or
any rule or regulation promulgated thereunder.
10. Termination. Subsequent to the execution of the applicable Terms
Agreement, this Agreement shall be subject to termination in the absolute
discretion of the Underwriter, by notice given to WFASC prior to delivery of and
payment for the Certificates, if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or materially
limited or any setting of minimum prices for trading on such exchange shall have
been instituted, (ii) a general moratorium on commercial banking activities in
the State of New York shall have been declared by either federal or New York
State authorities, or (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
21
Certificates on the terms and in the manner contemplated by the Prospectus as
amended or supplemented. In addition, following receipt of notice from WFASC
that the Mortgage Loans will not conform to the specifications set forth in the
applicable Terms Agreement, if, in the reasonable judgment of the Underwriter,
such disparity would have a material adverse effect on the marketing and sale of
the Certificates, the Underwriter may terminate this Agreement not later than
the close of business on the first business day after receipt of such notice or,
if earlier, the Closing Date.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of WFASC, Xxxxx
Fargo Bank and their respective officers and of the Underwriter set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter, WFASC, Xxxxx Fargo
Bank or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the Certificates.
The provisions of Section 5(d), Section 7, Section 8 and Section 12 hereof shall
survive the termination or cancellation of this Agreement.
12. Reimbursement of Expenses. If for any reason, other than default by
the Underwriter in its obligation to purchase the Certificates, the material
breach by the Underwriter of any of its covenants in Section 9 hereof (without
the fault of WFASC) or termination by the Underwriter pursuant to Section 10
hereof, the Certificates are not delivered by or on behalf of WFASC as provided
herein, WFASC will reimburse the Underwriter for all out-of-pocket expenses of
the Underwriter, including reasonable fees and disbursements of its counsel,
reasonably incurred by the Underwriter in making preparations for the purchase,
sale and delivery of the Certificates, but WFASC and Xxxxx Fargo Bank shall then
be under no further liability to the Underwriter with respect to the
Certificates except as provided in Section 5(d), Section 7 and Section 8 hereof.
If the Certificates are not delivered by or on behalf of WFASC as provided
herein because of the default by the Underwriter in its obligation to purchase
the Certificates or the material breach by the Underwriter of any of its
covenants in Section 9 hereof (without the fault of WFASC), the Underwriter will
reimburse WFASC for all out-of-pocket expenses of WFASC, including reasonable
fees and disbursements of its counsel, reasonably incurred by WFASC in making
preparations for the issuance and delivery of the Certificates, but the
Underwriter shall then be under no further liability to WFASC with respect to
the Certificates except as provided in Sections 5(d) and 7 hereof.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors and controlling persons referred to in Section 7 hereof and their
respective successors and assigns, and no other person will have any right or
obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
15. Final Structure Due Date. The Underwriter agrees to submit to WFASC
not later than 9:00 a.m. New York City Time on the Final Structure Due Date
specified in the applicable Terms Agreement its determination of the final
structure relating to, among other items, the class designations, approximate
principal amounts and payment priorities of the Certificates. Changes
22
to such final structure may be made by the Underwriter after the Final Structure
Due Date if the changes are of a non-material nature. The determination as to
whether such changes are non-material shall be in the sole discretion of WFASC.
In addition, on or before the Final Structure Due Date the Underwriter may elect
an extension thereof for an additional one or two business days beyond the
original Final Structure Due Date if the Underwriter notifies WFASC of its
election not later than 9:00 a.m. New York City Time on such original Final
Structure Due Date and the Underwriter pays to WFASC, on or prior to the Closing
Date, an extension fee of $10,000 for each day the Final Structure Due Date is
extended as reimbursement for WFASC's costs and expenses arising from such
extension.
16. Miscellaneous. Time shall be of the essence of this Agreement. This
Agreement supersedes all prior or contemporaneous agreements and understandings
relating to the subject matter hereof. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
17. Notices. All communications hereunder will be in writing and effective
only on receipt and, if sent to the Underwriter, will be delivered to
[Underwriter], or if sent to WFASC, will be delivered to WFASC at 0000 Xxx
Xxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxx 00000; or if sent to Xxxxx Fargo Bank, will be
delivered to Xxxxx Xxxxx Xxxx xx 0 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000.
* * *
23
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.
Very truly yours,
XXXXX FARGO ASSET SECURITIES
CORPORATION
By:
-----------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A.
By:
-----------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
[UNDERWRITER]
By:
-----------------------------------
Name:
Title:
24
Exhibit A
XXXXX FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
Form of Terms Agreement
[Underwriter] ___________, 20___
[Address]
Underwriting Agreement dated ______,
20__.
Title of Certificates: Mortgage Pass-Through Certificates,
Series 20__, (Classes) (the "Offered
Certificates").
Classes of Certificates: Each of the Class A and Class B
Certificates will consist of one or more
classes with the prior consent of Xxxxx
Fargo Asset Securities Corporation (the
"Seller"), which consent shall not be
unreasonably withheld.
Aggregate Principal Amount $ ___________(Approximate)
of the Offered Certificates:
Certificates Not Offered Hereby: The Class B-4, Class B-5 and Class B-6
Certificates (the "Other Certificates").
Subordination: "Shifting interest" structure.
Minimum Denominations of
Offered Certificates:
Minimum Incremental
Class Denomination Denomination
------------------------ ------------ ------------
Classes A $ 25,000 $ 1,000
Class A-IO $ [ ] $ 1,000
Classes A-R $ 100 N/A
Classes B-1, B-2 and B-3 $ 100,000 $ 1,000
Description of the Mortgage Loans: Fixed interest rate, conventional,
monthly pay, fully amortizing, one- to
four-family, residential first mortgage
loans having original stated terms to
maturity of approximately [ ] years.
25
REMIC Election: Yes.
Cut-Off Date: ___________ 1, 20___
Final Structure Due Date: ___________ ___, 20___
Distributions: Distributions will be made monthly on
the 25th day of each month or the next
succeeding Business Day (the
"Distribution Date").
Servicing Fee (Monthly fee payable to [ ]% per annum (or as described in the
the Servicer): prospectus supplement).
Master Servicing Fee (Monthly fee [ ]% per annum.
payable to the Master Servicer):
Fixed Retained Yield: [Yes][No].
Trustee:
[Trust Administrator: [______________]
Independent Accountants:
Book-Entry Registration: Settlement in "same-day" funds, to the
extent practicable. REMIC residual
certificates will not be issued in
book-entry form, unless authorized by
the Seller.
Optional Termination: The Seller will have the right to
repurchase all remaining Mortgage Loans,
and effect an early retirement of the
Certificates, when the aggregate
scheduled principal balance of the
Mortgage Loans is less than 10% of the
aggregate principal balance of the
Mortgage Loans as of the Cut-Off Date.
Required Ratings: [Ratings]
Closing Date, Location and Time: ___________ ___, 20___; offices of
Cadwalader, Xxxxxxxxxx & Xxxx, LLP, New
York, New York; 10:00 a.m. New York City
time.
26
Purchase Price for the Offered Certificates:
Percent of Initial Aggregate
Class Principal Balance
------------------------------------- ----------------------------
Class A %
Classes X-0, X-0 and B-3 %
In each case, as offered and sold pursuant to this Terms Agreement, plus
accrued interest, if applicable, thereon.
Notwithstanding any other provision of the above-referenced Underwriting
Agreement, all references to the Registration Statement in the Underwriting
Agreement shall be with reference to File No.
Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in the above-referenced Underwriting
Agreement (which is incorporated herein in its entirety and made a part hereof)
as supplemented by this Terms Agreement, the Seller agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Seller, the Offered
Certificates.
* * *
27
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement by and among the
Seller, Xxxxx Fargo Bank, N.A. and the Underwriter.
Very truly yours,
XXXXX FARGO ASSET SECURITIES
CORPORATION
By:
-----------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A.
By:
-----------------------------------
Name:
Title:
The foregoing Terms Agreement is
hereby confirmed and accepted as of
the date first above written.
[UNDERWRITER]
By:
-----------------------------------
Name:
Title:
28
