Exhibit 1.1
WELLS FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
Dated as of _______ 20, 200__
[Underwriter]
_______________________
_______________________
_______________________
_______________________
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
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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. __________), including a
prospectus
(the "Base Prospectus"), has been filed with the Securities and
Exchange
Commission (the "Commission") and has become effective under
the
Securities
Act of 1933, as amended (the "Act"), and no stop order
suspending
the effectiveness of such registration statement has been
issued and
no proceedings for that purpose have been initiated or, to
WFASC's
knowledge, threatened by the Commission; and the Base
Prospectus
in the
form in which it will be used in connection with the offering
of
the
Certificates is proposed to be supplemented by a prospectus
supplement
relating
to the Certificates and, as so supplemented, to be filed with
the
Commission
pursuant to Rule 424 under the Act. (Such registration
statement,
as amended to the date of the applicable Terms Agreement, is
hereinafter referred to as the "Registration Statement"; such
prospectus
supplement, as first filed with the Commission, is hereinafter
referred to
as the
"Prospectus Supplement"; and such Base Prospectus, in the form
in
which it
will first be filed with the Commission in connection with the
offering
of the Certificates, as supplemented by the Prospectus
Supplement, is hereinafter referred to as the "Prospectus").
(ii) The Registration Statement and the Prospectus, as of the
date
of the
Prospectus Supplement, will conform, and the Registration
Statement
and the
Prospectus, as revised, amended or supplemented and filed with
the
Commission
prior to the termination of the offering of the Certificates,
as of
their respective effective or issue dates, will conform in all
material
respects to the requirements of the Act and the rules and
regulations of the Commission thereunder applicable to such
documents as
of such
respective dates, and the Registration Statement and the
Prospectus, as revised, amended or supplemented and filed with
the
Commission
as of the "Closing Date" (as hereinafter defined), will conform
in all
material respects to the requirements of the Act and the rules
and
regulations of the Commission thereunder applicable to such
documents; and
the
Registration Statement and the Prospectus, as of the date of
the
Prospectus
Supplement, will not include any untrue statement of a material
fact and
will not omit to state a material fact required to be stated
therein or
necessary to make the statements therein not misleading and, in
the case
of the Prospectus, as revised, amended or supplemented and
filed
prior to
the Closing Date, as of the Closing Date, will not
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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 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)(iv)), 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
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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
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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.
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(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. 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.
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 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.
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
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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
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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
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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
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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
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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:
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(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
