EXHIBIT 1.1
WELLS FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
----------------------
Effective as of February 15, 2006
HSBC Securities (USA) Inc.
452 Fifth Avenue
New York, New York 10018
Ladies and Gentlemen:
Wells 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 Wells Fargo Bank,
N.A., a
national banking association (in such capacity, "Wells 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 Wells Fargo Bank. The Mortgage Pass-Through
Certificates of the
series and classes to be sold in each offering to the Underwriter
under this
Underwriting Agreement, as supplemented by the applicable Terms
Agreement, are
hereinafter referred to as the "Certificates." The Mortgage
Pass-Through
Certificates of the same series that are not being sold in each
offering to the
Underwriter under this Underwriting Agreement are hereinafter
referred to as the
"Other Certificates." The Certificates will have the
characteristics set forth
in the applicable Terms Agreement and will evidence the ownership
interests in a
trust consisting of a pool (the "Mortgage Pool") of mortgage loans
acquired by
WFASC (the "Mortgage Loans") and related property but excluding the
Fixed
Retained Yield, if any, specified in the Terms Agreement
(collectively, the
"Trust Estate"). The Mortgage Loans will be of the type described
in, and will
have the characteristics and aggregate principal balance set forth
in, the
Prospectus Supplement (as hereinafter defined).
The Certificates will be issued pursuant to a pooling and
servicing
agreement (the "Pooling and Servicing Agreement"), dated as of the
close of
business on the date specified in the applicable Terms Agreement,
by and among
WFASC, as depositor, Wells 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 Wells Fargo Bank.
Each offering
of Mortgage Pass-Through Certificates under this Underwriting
Agreement will be
governed by this Underwriting Agreement, as supplemented by the
applicable Terms
Agreement. This Underwriting Agreement, as supplemented by the
applicable Terms
Agreement, is referred to herein as this "Agreement."
1.
Representations and Warranties. (a) WFASC represents and warrants
to,
and agrees with, the Underwriter as of the date of the applicable
Terms
Agreement that:
(i) A registration statement (File No. 333-129159), including a
prospectus
(the "Base Prospectus"), has been filed with the Securities and
Exchange
Commission (the "Commission") and has become effective under
the
Securities
Act of 1933, as amended (the "Act"), and no stop order
suspending
the effectiveness of such registration statement has been
issued and
no proceedings for that purpose have been initiated or, to
WFASC's
knowledge, threatened by the Commission; and the Base
Prospectus
in the
form in which it will be used in connection with the offering
of
the
Certificates is proposed to be supplemented by a prospectus
supplement
relating
to the Certificates and, as so supplemented, to be filed with
the
Commission pursuant to
Rule 424 under the Act. (Such registration
statement,
as amended to the date of the applicable Terms Agreement, is
hereinafter referred to as the "Registration Statement"; such
prospectus
supplement, as first filed with the Commission, is hereinafter
referred to
as the
"Prospectus Supplement"; and such Base Prospectus, in the form
in
which it
will first be filed with the Commission in connection with the
offering
of the Certificates, as supplemented by the Prospectus
Supplement, is hereinafter referred to as the "Prospectus").
(ii) The Registration Statement and the Prospectus, as of the
date
of the
Prospectus Supplement, will conform, and the Registration
Statement
and the
Prospectus, as revised, amended or supplemented and filed with
the
Commission
prior to the termination of the offering of the Certificates,
as of
their respective effective or issue dates, will conform in all
material
respects to the requirements of the Act and the rules and
regulations of the Commission thereunder applicable to such
documents as
of such
respective dates, and the Registration Statement and the
Prospectus, as revised, amended or supplemented and filed with
the
Commission
as of the "Closing Date" (as hereinafter defined), will conform
in all
material respects to the requirements of the Act and the rules
and
regulations of the Commission thereunder applicable to such
documents; and
the Registration
Statement and the Prospectus, as of the date of the
Prospectus
Supplement, will not include any untrue statement of a material
fact and
will not omit to state a material fact required to be stated
therein or
necessary to make the statements therein not misleading and, in
the case
of the Prospectus, as revised, amended or supplemented and
filed
prior to
the Closing Date, as of the Closing Date, including for these
purposes
any portion of the Applicable Static Pool Information (as
defined
in Section
9(b)(i)) deemed not part of the Registration Statement or the
Prospectus
on account of Item 1105(d) of Regulation AB under the Act, will
not
include any untrue statement of a material fact and will not omit
to
state a
material fact required to be stated therein or necessary to
make
the
statements therein not misleading; provided, however, that WFASC
makes
no
representations, warranties or agreements as to the information
contained in or
omitted from the Prospectus or any revision or amendment
thereof or
supplement thereto in reliance upon and in conformity with
information furnished in writing to WFASC by or on behalf of
the
Underwriter specifically for use in connection with the preparation
of the
Prospectus
or any revision or amendment thereof or supplement thereto. The
Issuer
Free Writing Prospectus (as defined in Section 9(b)(i)), as
amended
or
supplemented, will not contain any untrue statement of a material
fact
or omit to
state a material fact necessary to make the statements therein,
in light
of the circumstances under which they were made, not
misleading,
in either
case at the Time of Sale (as defined in Section 7(f)) to the
applicable
investor, when considered in conjunction with the Time of Sale
Information (as defined in Section 7(f)), provided, however, that
no
representation is made as to the effect of the exclusion from the
Issuer
Free
Writing Prospectus of any information of the type specified in
Exhibit B
hereto as Supplemental Information.
(iii) Assuming that certain of the Certificates are rated at
the
time of
issuance in one of the two highest rating categories by a
nationally
recognized statistical rating organization, each such
Certificate at such time will be a "mortgage related security" as
such
term is
defined in Section 3(a)(41) of the Securities Exchange Act of
1934, as
amended (the "Exchange Act").
(iv) Each of the Certificates will conform in all material
respects
to the
description thereof contained in the Prospectus, and each of
the
Certificates, when validly authenticated, issued and delivered
in
accordance
with the Pooling and Servicing Agreement, will be duly and
validly
issued and outstanding and entitled to the benefits of the
Pooling
and
Servicing Agreement, and immediately prior to the delivery of
the
Certificates to the Underwriter, WFASC will own the Certificates,
and upon
such
delivery the Underwriter will acquire title thereto, free and
clear
of any
lien, pledge, encumbrance or other security interest other than
one
created or
granted by the Underwriter or permitted by the Pooling and
Servicing
Agreement.
(v) This Agreement has been duly authorized, executed and
delivered
by WFASC
and, as of the Closing Date, the Pooling and Servicing
Agreement
will have
been duly authorized, executed and delivered by WFASC and will
conform in
all material respects to the description thereof contained in
the
Prospectus and, assuming the valid execution thereof by the
Trustee,
the Trust
Administrator, if applicable, and the Master Servicer, the
Pooling
and Servicing Agreement will constitute a valid and binding
agreement
of WFASC enforceable in accordance with its terms, except as
the
same may
be limited by bankruptcy, insolvency, reorganization or other
laws
relating to or affecting the enforcement of creditors' rights and
by
general
equity principles.
(vi) WFASC has been duly incorporated and is validly existing as
a
corporation in good standing under the laws of the State of
Delaware with
corporate
power and authority to own its properties and conduct its
business
as described in the Prospectus and to enter into and perform
its
obligations under the Pooling and Servicing Agreement and this
Agreement.
(vii) Neither the issuance or delivery of the Certificates, nor
the
consummation of any other of the transactions contemplated herein,
nor
compliance
with the provisions of the Pooling and Servicing Agreement or
this
Agreement, will conflict with or result in the breach of any
material
term or
provision of the certificate of incorporation or bylaws of
WFASC,
and WFASC
is not in breach or violation of or in default (nor has an
event
occurred
which with notice or lapse of time or both would constitute a
default)
under the terms of (i) any indenture, contract, lease,
mortgage,
deed of
trust, note agreement or other evidence of indebtedness or
other
agreement,
obligation or instrument to which WFASC is a party or by which
it or its
properties are bound, or (ii) any law, decree, order, rule or
regulation
applicable to WFASC of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or
arbitrator
having
jurisdiction over WFASC, or its properties, the default in or
the
breach or
violation of which would have a material adverse effect on
WFASC
or the
ability of WFASC to perform its obligations under the Pooling
and
Servicing
Agreement; and neither the delivery of the Certificates, nor
the
consummation of any other of the transactions contemplated herein,
nor the
compliance
with the provisions of the Pooling and Servicing Agreement or
this
Agreement will result in such a breach, violation or default
which
would have
such a material adverse effect.
(viii) No filing or registration with, notice to, or consent,
approval,
authorization or order or other action of, any court or
governmental authority or agency is required for the consummation
by WFASC
of the
transactions contemplated by this Agreement or the Pooling and
Servicing
Agreement (other than as required under state securities laws
or
Blue Sky
laws, as to which no representations and warranties are made by
WFASC),
except such as have been, or will have been prior to the
Closing
Date,
obtained under the Act, and such recordations of the assignment
of
the
Mortgage Loans to the Trustee or, if applicable, to the Trust
Administrator on behalf of the Trustee, pursuant to the Pooling
and
Servicing
Agreement that have not yet been completed.
(ix) There is no action, suit or proceeding before or by any
court,
administrative or governmental agency, or other tribunal, domestic
or
foreign,
now pending to which WFASC is a party, or, to the best of
WFASC's
knowledge,
threatened against WFASC, which could reasonably result
individually or in the aggregate in any material adverse change in
the
condition
(financial or otherwise), earnings, affairs, regulatory
situation
or business prospects of WFASC or could reasonably interfere
with or
materially and adversely affect the consummation of the
transactions
contemplated herein.
(x) On the Closing Date the representations and warranties made
by
WFASC in
the Pooling and Servicing Agreement will be true and correct in
all
material respects as of the date made.
(xi) At the time
of execution and delivery of the Pooling and
Servicing
Agreement, WFASC will own the mortgage notes (the "Mortgage
Notes")
being transferred to the Trust Estate pursuant thereto, free
and
clear of
any lien, mortgage, pledge, charge, encumbrance, adverse claim
or
other
security interest (collectively, "Liens"), except to the extent
permitted
in the Pooling and Servicing Agreement, and will not have
assigned
to any person other than the Trust Estate any of its right,
title
or
interest, exclusive of the Fixed Retained Yield, if any, in the
Mortgage
Notes. WFASC will have the power and authority to transfer the
Mortgage
Notes to the Trust Estate and to transfer the Certificates to
the
Underwriter, and, upon
execution and delivery to the Trustee of the
Pooling
and Servicing Agreement, payment by the Underwriter for the
Certificates, and delivery to the Underwriter of the Certificates,
the
Trust
Estate will own the Mortgage Notes (exclusive of the Fixed
Retained
Yield, if
any) and the Underwriter will acquire title to the
Certificates,
in each
case free of Liens except to the extent permitted by the
Pooling
and
Servicing Agreement.
(xii) Any taxes, fees and other governmental charges in
connection
with the
execution, delivery and issuance of this Agreement, the Pooling
and
Servicing Agreement and the Certificates have been or will be paid
by
WFASC on
or prior to the Closing Date, except for fees for recording
assignments of mortgage loans to the Trustee or, if applicable, to
the
Trust
Administrator on behalf of the Trustee, pursuant to the Pooling
and
Servicing
Agreement that have not yet been completed, which fees will be
paid by
WFASC in accordance with the Pooling and Servicing Agreement.
(xiii) The transfer of the Mortgage Loans and the related assets
to
the Trust
Estate on the Closing Date will be treated by WFASC for
financial
accounting and reporting purposes as a sale of assets and not
as
a pledge
of assets to secure debt.
(xiv) WFASC is not, and on the date on which the first bona
fide
offer of
the Certificates is made will not be, an "ineligible issuer,"
as
defined in
Rule 405 under the Act.
(b) Wells
Fargo Bank represents and warrants to, and agrees with, the
Underwriter as of the date of the applicable Terms Agreement
that:
(i) Wells 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 Wells Fargo Bank of this
Agreement
are within the corporate power of Wells Fargo Bank and have
been
duly
authorized by all necessary corporate action on the part of
Wells
Fargo
Bank.
(iii) Neither the execution and delivery of this Agreement, nor
the
consummation by Wells 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 Wells Fargo Bank.
(iv) This Agreement has been duly authorized, executed and
delivered
by Wells
Fargo Bank.
2.
Purchase Price. The purchase price at which the Underwriter
will
purchase the Certificates shall be the aggregate purchase price set
forth in the
applicable Terms Agreement.
3.
Delivery and Payment. The Certificates shall be delivered at
the
office, on the date and at the time specified in the applicable
Terms Agreement,
which place, date and time may be changed by agreement between the
Underwriter
and WFASC (such date and time of delivery of and payment for the
Certificates
being hereinafter referred to as the "Closing Date"). Delivery of
the
Certificates shall be made to the Underwriter against payment by
the Underwriter
of the purchase price therefor to or upon the order of WFASC in
same-day funds.
The Certificates shall be registered in such names and in such
denominations as
the Underwriter may have requested not less than two business days
prior to the
Closing Date. WFASC agrees to have the Certificates available for
inspection,
checking and packaging in New York, New York, on the business day
prior to the
Closing Date.
4.
Offering by Underwriter. (a) It is understood that the
Underwriter
proposes to offer the Certificates for sale as set forth in the
Prospectus and
that the Underwriter will not offer, sell or otherwise distribute
the
Certificates (except for the sale thereof in exempt transactions)
in any state
in which the Certificates are not exempt from registration under
state
securities laws or Blue Sky laws (except where the Certificates
will have been
qualified for offering and sale at the direction of the Underwriter
under such
state securities laws or Blue Sky laws). In connection with such
offering(s),
the Underwriter agrees to provide WFASC with information related to
the offer
and sale of the Certificates that is reasonably requested by WFASC,
from time to
time (but not in excess of three years from the Closing Date), and
necessary for
complying with its tax reporting obligations, including, without
limitation, the
issue price of the Certificates.
(b) The
Underwriter agrees that it will not sell or transfer any
Certificate or interest therein in the initial sale or transfer of
such
Certificate by the Underwriter in an amount less than the minimum
denomination
for such Certificate to be set forth in the Prospectus
Supplement.
(c) The
Underwriter agrees that (i) if it delivers to an investor the
Prospectus in portable document format ("PDF"), upon the
Underwriter's receipt
of a request from the investor within the period for which delivery
of the
Prospectus is required, the Underwriter will promptly deliver or
cause to be
delivered to the investor, without charge, a paper copy of the
Prospectus and
(ii) it will provide to WFASC any Underwriter Free Writing
Prospectuses (as
defined in Section 9(a)), or portions thereof, which WFASC is
required to file
with the Commission in electronic format and will use reasonable
efforts to
provide to WFASC such Free Writing Prospectuses, or portions
thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF,
except to the
extent that WFASC, in its sole discretion, waives such
requirements.
(d) The
Underwriter represents and warrants to, and agrees with, WFASC,
as
of the date of the applicable Terms Agreement and as of the Closing
Date, that:
(i) In relation to each Member State of the European Economic
Area
which has
implemented the Prospectus Directive (each, a "Relevant Member
State"),
it has not made and will not make an offer of Certificates to
the
public in that
Relevant Member State prior to the publication of a
prospectus
in relation to the Certificates which has been approved by the
competent
authority in that Relevant Member State or, where appropriate,
approved
in another Relevant Member State and notified to the competent
authority
in that Relevant Member State, all in accordance with the
Prospectus
Directive, except that it may, with effect from and including
the
relevant implementation date, make an offer of Certificates to
the
public in
that Relevant Member State at any time:
(A) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
(B) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial
year;
(2) a total balance sheet of more than (euro)43,000,000; and (3)
an
annual net turnover of more than (euro)50,000,000, as shown in
its
last annual or consolidated accounts; or
(C) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article 3
of
the Prospectus Directive.
For the purposes of this representation, the expression an "offer
of
Certificates to the public" in relation to any Certificates in
any
Relevant
Member State means the communication in any form and by any
means
of
sufficient information on the terms of the offer and the
Certificates
to be
offered so as to enable an investor to decide to purchase or
subscribe
the Certificates, as the same may be varied in that Member
State
by any
measure implementing the Prospectus Directive in that Member
State,
and the
expression "Prospectus Directive" means the European Commission
Directive
2003/71/EC and includes any relevant implementing measure in
each
Relevant Member State.
(ii) It has only communicated or cause to be communicated and
will
only
communicate or cause to be communicated an invitation or
inducement
to engage
in investment activity (within the meaning of Section 21 of the
United
Kingdom Financial Services and Markets Act 2000 (the "FSMA"))
received
by it in connection with the issue or sale of the Certificates
in
circumstances in which Section 21(1) of the FSMA does not apply to
the
issuer.
(iii) It has complied and will comply with all applicable
provisions
of the
FSMA with respect to anything done by it in relation to the
Certificates in, from or otherwise involving the United
Kingdom.
5.
Agreements. WFASC agrees with the Underwriter that:
(a) WFASC
will cause the Prospectus to be filed with the Commission
pursuant to Rule 424 under the Act and, if necessary, within 15
days of the
Closing Date, will file a report on Form 8-K setting forth specific
information
concerning the Certificates, and will promptly advise the
Underwriter when the
Prospectus has been so filed, and, prior to the termination of the
offering of
the Certificates, will also promptly advise the Underwriter (i)
when any
amendment to the Registration Statement has become effective or any
revision of
or supplement to the Prospectus has been so filed (unless such
amendment,
revision or supplement does not relate to the Certificates), (ii)
of any request
by the Commission for any amendment of the Registration Statement
or the
Prospectus or for any additional information (unless such request
does not
relate to the Certificates), and (iii) of the issuance by the
Commission of any
stop order suspending the effectiveness of the Registration
Statement with
respect to the Certificates or the institution or, to the knowledge
of WFASC,
the threatening of any proceeding for that purpose. WFASC will use
its best
efforts to prevent the issuance of any such stop order and, if
issued, to obtain
as soon as possible the withdrawal thereof. Except as otherwise
provided in
Section 5(b) hereof, WFASC will not file prior to the termination
of such
offering any amendment to the Registration Statement or any
revision of or
supplement to the Prospectus (other than any such amendment,
revision or
supplement which does not relate to the Certificates) which shall
be disapproved
by the Underwriter after reasonable notice and review of such
filing.
(b) If, at
any time when a prospectus relating to the Certificates is
required to be delivered under the Act (without regard to reliance
on Rule 174
under the Act) (i) any event occurs as a result of which the
Prospectus as then
amended or supplemented would include any untrue statement of a
material fact or
omit to state a material fact necessary to make the statements
therein in the
light of the circumstances under which they were made not
misleading, or (ii) it
shall be necessary to revise, amend or supplement the Prospectus to
comply with
the Act or the rules and regulations of the Commission thereunder,
WFASC
promptly will notify the Underwriter and will, upon request of the
Underwriter,
or may, after consultation with the Underwriter, prepare and file
with the
Commission a revision, amendment or supplement which will correct
such statement
or omission or effect such compliance, and furnish without charge
to the
Underwriter as many copies as the Underwriter may from time to time
reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will
correct such statement or omission or effect such compliance.
(c) WFASC
will (i) furnish to the Underwriter and counsel for the
Underwriter, without charge, conformed copies of the Registration
Statement
(including exhibits thereto) and, so long as delivery of a
prospectus relating
to the Certificates is required under the Act, as many copies of
the Prospectus
and any revisions or amendments thereof or supplements thereto as
may be
reasonably requested, and (ii) file promptly all reports and any
definitive
proxy or information statements required to be filed by WFASC with
the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act (as
such requirements may be modified pursuant to Section 12(h) of the
Exchange Act)
subsequent to the date of the Prospectus and for so long as the
delivery of a
prospectus is required in connection with the offering or sale of
the
Certificates.
(d) WFASC
will, as between itself and the Underwriter, pay all expenses
incidental to the performance of its obligations under this
Agreement including,
without limitation, (i) expenses of preparing, printing,
reproducing and filing
the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus,
the Pooling and Servicing Agreement and the Certificates, (ii) the
cost of
delivering the Certificates to the Underwriter, insured to the
satisfaction of
the Underwriter, (iii) the fees charged by (a) securities rating
services for
rating the Certificates and (b) WFASC's independent accountants in
connection
with the agreed-upon procedures letter to be delivered pursuant to
Section 6(g)
hereof, (iv) the fees and expenses of the Trustee, the Trust
Administrator, if
applicable, and any agent of the Trustee or the Trust
Administrator, if
applicable, and the fees and disbursements of counsel for the
Trustee and the
Trust Administrator, if applicable, in connection with the Pooling
and Servicing
Agreement and the Certificates, and (v) all other costs and
expenses incidental
to the performance by WFASC of WFASC's obligations hereunder which
are not
otherwise specifically provided for in this subsection. It is
understood that,
except as provided in this paragraph (d) and in Sections 7 and 12
hereof, the
Underwriter will pay all of its own expenses, including (i) the
fees of any
counsel to the Underwriter, (ii) any transfer taxes on resale of
any of the
Certificates by it, (iii) any advertising expenses connected with
any offers
that the Underwriter may make, (iv) any expenses for the
qualification of the
Certificates under state securities laws or Blue Sky laws,
including filing fees
and the fees and disbursements of counsel for the Underwriter in
connection
therewith and in connection with the preparation of any Blue Sky
survey, and (v)
any expenses incurred in connection with the preparation and
delivery of any
Underwriter Free Writing Prospectus and the filing of such Free
Writing
Prospectus, if required to be filed by Underwriter with the
Commission.
(e) So long as any
Certificates are outstanding, upon the request of the
Underwriter, WFASC will, or will cause the Master Servicer to,
furnish to the
Underwriter, as soon as available, a copy of (i) the annual
statement of
compliance delivered by the Master Servicer to the Trustee under
the Pooling and
Servicing Agreement, (ii) the annual independent public
accountants' servicing
report furnished to the Trustee pursuant to the Pooling and
Servicing Agreement,
(iii) each report of WFASC regarding the Certificates filed with
the Commission
under the Exchange Act or mailed to the holders of the
Certificates, and (iv)
from time to time, such other information concerning the
Certificates which may
be furnished by WFASC or the Master Servicer without undue expense
and without
violation of applicable law.
(f) The
effective date of the Registration Statement was within three
years of the Closing Date of the Certificates. If the third
anniversary of the
effective date occurs within six months after the Closing Date, the
Company will
use reasonable efforts to take such action as may be necessary or
appropriate to
permit the public offering and sale of the Certificates as
contemplated herein.
6.
Conditions to the Obligation of the Underwriter. The obligation of
the
Underwriter to purchase the Certificates shall be subject to the
accuracy in all
material respects of the representations and warranties on the part
of WFASC and
Wells 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 Wells 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 Wells Fargo Bank to furnish to the
Underwriter
a certificate, dated the Closing Date, of Wells Fargo Bank, signed
by a vice
president or an assistant vice president of Wells Fargo Bank, to
the effect that
the representations and warranties of Wells 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 Wells 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, Wickersham & Taft LLP, counsel to
WFASC, to the
effect that:
(i) WFASC is a corporation validly existing and in good
standing
under the
laws of the State of Delaware, with corporate power to enter
into and
perform its obligations under this Agreement, the applicable
Terms
Agreement and the Pooling and Servicing Agreement;
(ii) The execution and delivery of this Agreement and the
applicable
Terms
Agreement have been duly authorized by WFASC and this Agreement
and
the
applicable Terms Agreement have been duly executed and delivered
by
WFASC;
(iii) The execution and delivery of the Pooling and Servicing
Agreement
has been duly authorized by WFASC, and the Pooling and
Servicing
Agreement
has been duly executed and delivered by WFASC and constitutes a
legal,
valid and binding agreement of WFASC, enforceable against WFASC
in
accordance
with its terms subject to applicable bankruptcy, insolvency,
fraudulent
conveyance, reorganization, moratorium, receivership or other
laws
relating to or affecting creditors' rights generally or the rights
of
creditors
of banks, and to general principles of equity (regardless of
whether
enforcement is sought in a proceeding at law or in equity), and
except
that the enforcement of rights with respect to indemnification
and
contribution obligations and provisions (a) purporting to waive or
limit
rights to
trial by jury, oral amendments to written agreements or rights
of set off
or (b) relating to submission to jurisdiction, venue or service
of
process, may be limited by applicable law or considerations of
public
policy;
(iv) The Certificates have been duly authorized and executed by
WFASC and,
when the Certificates have been duly executed, authenticated
and
delivered in the manner contemplated in the Pooling and
Servicing
Agreement
and paid for by the Underwriter pursuant to this Agreement and
the
applicable Terms Agreement, the Certificates will be validly
issued
and
outstanding and entitled to the benefits provided by the Pooling
and
Servicing
Agreement;
(v) The issuance and sale by WFASC of the Certificates to the
Underwriter pursuant to this Agreement and the applicable Terms
Agreement,
the
compliance by WFASC with the provisions of this Agreement, the
applicable
Terms Agreement and the Pooling and Servicing Agreement, and
the
consummation by WFASC of the transactions therein contemplated (a)
do
not
require the consent, approval, authorization, order, or
qualification
of or
registration with any New York State or federal governmental
authority
or, to the knowledge of such counsel, any New York State or
federal court, except
such as may be required under state securities or
blue sky
laws, recordations of the assignment of the Mortgage Loans to
the
Trustee
pursuant to the Pooling and Servicing Agreement that have not
yet
been
completed, and such other approvals as have been obtained or
effected,
(b) do not conflict with or result in a violation of any
provision
of the certificate of incorporation and bylaws of WFASC or any
New York
State or federal law, and (c) to the knowledge of such counsel,
do not
conflict with or result in a breach or violation of any
material
indenture,
agreement or instrument to which WFASC is a party or by which
it or any
of its property is bound, or any judgment, decree or order
applicable
to WFASC, of any New York State or federal court, regulatory
body,
administrative agency or other governmental authority;
(vi) To the knowledge of such counsel, there is no legal or
governmental action, investigation or proceeding pending or
threatened
against
WFASC (a) asserting the invalidity of this Agreement, the
applicable
Terms Agreement, the Pooling and Servicing Agreement or the
Certificates, (b) seeking to prevent the issuance of the
Certificates or
the
consummation of any of the transactions contemplated by this
Agreement
and the
applicable Terms Agreement, (c) which would materially and
adversely
affect the performance by WFASC of its obligations under, or
the
validity
or enforceability (with respect to WFASC) of, this Agreement,
the
applicable
Terms Agreement, the Pooling and Servicing Agreement or the
Certificates or (d) seeking to affect adversely the federal income
tax
attributes
of the Certificates as described in the Prospectus and the
Prospectus
Supplement under the headings "Certain Federal Income Tax
Consequences" and "Federal Income Tax Considerations,"
respectively. For
purposes
of the opinion set forth in this paragraph, such counsel has
not
regarded
any legal or governmental actions, investigations or
proceedings
to be
"threatened" unless the potential litigant or governmental
authority
has
manifested to WFASC a present intention to initiate such
proceedings;
(vii) The Pooling and Servicing Agreement is not required to be
qualified
under the Trust Indenture Act of 1939, as amended;
(viii) The Trust Estate (as defined in the Pooling and
Servicing
Agreement)
is not required to be registered under the Investment Company
Act of
1940, as amended;
(ix) The Registration Statement has been declared effective
under
the Act,
and, to the knowledge of such counsel, no stop order with
respect
thereto
has been issued by the Commission;
(x) The Registration Statement, as of its effective date, and
the
Prospectus
and the Prospectus Supplement, as of the dates thereof (in each
case, with
the exception of any information incorporated by reference
therein
and any numerical, financial, statistical and quantitative data
included
therein, as to which such counsel expresses no view), appeared
on
their
respective faces to be appropriately responsive in all material
respects to the
requirements of the Act and the rules and regulations
thereunder
applicable to such documents as of the relevant date;
(xi) The statements in the Prospectus Supplement under the
headings
"Federal
Income Tax Considerations" and "ERISA Considerations," insofar
as
such
statements purport to summarize matters of federal law or legal
conclusions with respect thereto have been reviewed by such counsel
and
are
correct in all material respects; and
(xii) Assuming that the Certificates are rated at the time of
issuance
in one of the two highest rating categories by a nationally
recognized
statistical rating organization, each such Certificate at such
time will
be a "mortgage related security" as such term is defined in
Section
3(a)(41) of the Exchange Act.
Such
opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or
other documents
furnished by officers of, the parties to this Agreement and the
Pooling and
Servicing Agreement. Such opinion may assume the due authorization,
execution
and delivery of the instruments and documents referred to therein
by the parties
thereto other than WFASC. Such opinion may be qualified as an
opinion only on
the laws of the State of New York, the laws of each state in which
the writer of
the opinion is admitted to practice law and the federal law of the
United
States. To the extent that such firm relies upon the opinion of
other counsel in
rendering any portion of its opinion, the opinion of such other
counsel shall be
attached to and delivered with the opinion of such firm that is
delivered to the
Underwriter.
(e) The
Master Servicer shall have furnished to the Underwriter an
opinion, dated the Closing Date, of counsel to the Master Servicer
(who may be
an employee of the Master Servicer), to the effect that:
(i) The Master Servicer has been duly incorporated and is
validly
existing
as a national banking association and has the power and
authority
to enter
into, and to take all action required of it under, the Pooling
and
Servicing Agreement and the Servi
