Exhibit 1.1
WELLS FARGO ASSET SECURITIES CORPORATION
Asset-Backed Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
Dated as of [_____], 200[_]
[Underwriter]
[Address]
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
Asset-Backed Certificates in various series, each series of which
may be divided
into classes, in one or more offerings on terms determined at the
time of sale.
One or more series of Asset-Backed Certificates may be offered
through you, as
underwriter (the "Underwriter"). Whenever WFASC determines to make
an offering
of a series of its Asset-Backed Certificates through the
Underwriter, WFASC and
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 Asset-Backed Certificates to the
Underwriter.
WFASC is a wholly-owned subsidiary of Wells Fargo Bank. The
Asset-Backed
Certificates of the series and classes to be sold in each offering
to the
Underwriter under this Underwriting Agreement, as supplemented by
the applicable
Terms Agreement, are hereinafter referred to as the "Certificates."
The
Asset-Backed Certificates of the same series that are not being
sold in each
offering to the Underwriter under this Underwriting Agreement are
hereinafter
referred to as the "Other Certificates." The Certificates will have
the
characteristics set forth in the applicable Terms Agreement and
will evidence
the ownership interests in a trust consisting of a pool of mortgage
loans
acquired by WFASC (the "Mortgage Loans") and related property
(collectively, the
"Trust Fund"). The Mortgage Loans will be of the type described in,
and will
have the characteristics and aggregate principal balance set forth
in, the
Issuer Free Writing Prospectus and the Prospectus Supplement (in
each case as
hereinafter defined).
The Certificates will be issued pursuant to a pooling and
servicing
agreement (the "Pooling and Servicing Agreement"), dated as of the
close of
business on the date specified in the applicable Terms Agreement,
by and among
WFASC, as depositor, Wells Fargo Bank, as servicer (in such
capacity, the
"Servicer"), the trustee identified in the applicable Terms
Agreement, as
trustee (the "Trustee") and, if applicable, the securities
administrator
identified in the applicable Terms Agreement, as securities
administrator (the
"Securities Administrator") and, if applicable, the credit risk
manager (the
"Credit Risk Manager") identified in the Terms Agreement. The
Certificates will
be issued in denominations of $25,000, or such lesser or greater
amounts as may
be specified in the applicable Terms Agreement, and will have the
terms set
forth in the Issuer Free Writing Prospectus and the Prospectus
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 in
substantially
the form of Exhibit A hereto. Each offering of Asset-Backed
Certificates under
this Underwriting Agreement will be governed by this Underwriting
Agreement, as
supplemented by the applicable Terms Agreement. This Underwriting
Agreement, as
supplemented by the applicable Terms Agreement, is referred to
herein as this
"Agreement".
1. Representations and Warranties. (a) WFASC represents and
warrants
to, and agrees with, the Underwriter as of the date of the
applicable Terms
Agreement that:
(i) A registration statement (with the file number set forth
in the related Terms Agreement), including a prospectus (the
"Base
Prospectus"), has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective under
the
Securities Act of 1933, as amended (the "Act"), 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 include any untrue statement of a material
fact
and will not omit to state a material fact required to be
stated
therein or necessary to make the statements therein not
misleading;
provided, however, that WFASC makes no representations, warranties
or
agreements as to the information contained in or omitted from
the
Prospectus or any revision or amendment thereof or supplement
thereto
in reliance upon and in conformity with information furnished
in
writing to WFASC by or on behalf of the Underwriter specifically
for
use in connection with the preparation of the Registration
Statement ,
the Prospectus or the Time of Sale Information or any revision
or
amendment thereof or supplement thereto. The Time of Sale
Information
(as defined in Section
7(f) below), 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 to the applicable investor; provided,
however,
that WFASC makes no representations, warranties or agreements as to
the
information contained in or omitted from the Time of Sale
Information
or any revision or amendment thereof or supplement thereto in
reliance
upon and in conformity with information furnished in writing to
WFASC
by or on behalf of the Underwriter specifically for use in
connection
with the preparation of the Registration Statement, the Prospectus
or
the Time of Sale Information or any revision or amendment thereof
or
supplement thereto.
(iii) Assuming that it is rated at the time of issuance in one
of the two highest rating categories by a nationally recognized
statistical rating organization, each Certificate designated as
a
"mortgage related security" in the Prospectus Supplement will, at
the
time of issuance, be a "mortgage related security," as such term
is
defined in Section 3(a)(41) of the Securities Exchange Act of 1934,
as
amended (the "Exchange Act").
(iv) Each of the Certificates will conform in all material
respects to the description thereof contained in the Issuer
Free
Writing Prospectus and the Prospectus, and each of the
Certificates,
when validly authenticated, issued and delivered in accordance with
the
Pooling and Servicing Agreement, will be duly and validly issued
and
outstanding and entitled to the benefits of the Pooling and
Servicing
Agreement, and immediately prior to the delivery of the
Certificates to
the Underwriter, WFASC will own the Certificates, and upon such
delivery the Underwriter will acquire title thereto, free and clear
of
any lien, pledge, encumbrance or other security interest other than
one
created or granted by the Underwriter or permitted by the Pooling
and
Servicing Agreement.
(v) This Agreement has been duly authorized, executed and
delivered by WFASC and, as of the Closing Date, the Pooling and
Servicing Agreement will have been duly authorized, executed
and
delivered by WFASC and will conform in all material respects to
the
description thereof contained in the Issuer Free Writing Prospectus
and
the Prospectus and, assuming the valid execution thereof by the
parties
to the Pooling and Servicing Agreement (other than WFASC), will
constitute a valid and binding agreement of WFASC enforceable
in
accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to
or
affecting the enforcement of creditors' rights and by general
equity
principles.
(vi) WFASC has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State
of
Delaware with corporate power and authority to own its properties
and
conduct its business as described in the Issuer Free Writing
Prospectus
and the Prospectus and to enter into and perform its obligations
under
the Pooling and Servicing Agreement and this Agreement.
(vii) Neither the issuance or delivery of the Certificates,
nor the consummation of any other of the transactions
contemplated
herein, nor compliance with the provisions of the Pooling and
Servicing
Agreement or this Agreement, will conflict with or result in the
breach
of any material term or provision of the certificate of
incorporation
or bylaws of WFASC, and WFASC is not in breach or violation of or
in
default (nor has an event occurred which with notice or lapse of
time
or both would constitute a default) under the terms of (i) any
indenture, contract, lease, mortgage, deed of trust, note agreement
or
other evidence of indebtedness or other agreement, obligation
or
instrument to which WFASC is a party or by which it or its
properties
are bound, or (ii) any law, decree, order, rule or regulation
applicable to WFASC of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or
arbitrator
having jurisdiction over WFASC, or its properties, the default in
or
the breach or violation of which would have a material adverse
effect
on WFASC or the ability of WFASC to perform its obligations under
the
Pooling and Servicing Agreement; and neither the delivery of
the
Certificates, nor the consummation of any other of the
transactions
contemplated herein, nor the compliance with the provisions of
the
Pooling and Servicing Agreement or this Agreement will result in
such a
breach, violation or default which would have such a material
adverse
effect.
(viii) No filing or registration with, notice to, or consent,
approval, authorization or order or other action of, any court
or
governmental authority or agency is required for the consummation
by
WFASC of the transactions contemplated by this Agreement or the
Pooling
and Servicing Agreement (other than as required under state
securities
laws or Blue Sky laws, as to which no representations and
warranties
are made
by WFASC), except such as have been, or will have been prior
to the Closing Date, obtained under the Act, and such recordations
of
the assignment of the Mortgage Loans to the Trustee or, if
applicable,
to the Securities Administrator on behalf of the Trustee, pursuant
to
the Pooling and Servicing Agreement that have not yet been
completed.
(ix) There is no action, suit or proceeding before or by any
court, administrative or governmental agency, or other
tribunal,
domestic or foreign, now pending to which WFASC is a party, or, to
the
best of WFASC's knowledge, threatened against WFASC, which
could
reasonably result individually or in the aggregate in any
material
adverse change in the condition (financial or otherwise),
earnings,
affairs, regulatory situation or business prospects of WFASC or
could
reasonably interfere with or materially and adversely affect
the
consummation of the transactions contemplated herein.
(x) On the Closing Date the representations and warranties
made by WFASC in the Pooling and Servicing Agreement will be true
and
correct in all material respects as of the date made.
(xi) At the time of execution and delivery of the Pooling and
Servicing Agreement, WFASC will own the mortgage notes (the
"Mortgage
Notes") being transferred to the Trust Fund pursuant thereto, free
and
clear of any lien, mortgage, pledge, charge, encumbrance, adverse
claim
or other security interest (collectively, "Liens"), except to
the
extent permitted in the Pooling and Servicing Agreement, and will
not
have assigned to any person other than the Trust Fund any of its
right,
title or interest in the Mortgage Notes. WFASC will have the power
and
authority to transfer the Mortgage Notes to the Trust Fund and
to
transfer the Certificates to the Underwriter, and, upon execution
and
delivery to the Trustee of the Pooling and Servicing Agreement,
payment
by the Underwriter for the Certificates, and delivery to the
Underwriter of the Certificates, the Trust Fund will own the
Mortgage
Notes and the Underwriter will acquire title to the Certificates,
in
each case free of Liens except to the extent permitted by the
Pooling
and Servicing Agreement.
(xii) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this
Agreement,
the Pooling and Servicing Agreement and the Certificates have been
or
will be paid by WFASC on or prior to the Closing Date, except for
fees
for
recording assignments of mortgage loans to the Trustee or, if
applicable, to the Securities Administrator on behalf of the
Trustee,
pursuant to the Pooling and Servicing Agreement that have not yet
been
completed, which fees will be paid by WFASC in accordance with
the
Pooling and Servicing Agreement.
(xiii) The transfer of the Mortgage Loans and the related
assets to the Trust Fund on the Closing Date will be treated by
WFASC
for financial
accounting and reporting purposes as a sale of assets and
not as a pledge of assets to secure debt.
(xiv) WFASC acknowledges and agrees that (i) the purchase and
sale of the Certificates pursuant to this Agreement is an
arm's-length
commercial transaction between WFASC and Wells Fargo Bank on the
one
hand, and the Underwriter, on the other, (ii) in connection
therewith
and with the process leading to such transaction, the Underwriter
is
acting solely as a principal and not the agent or fiduciary of
WFASC,
(iii) the Underwriter has not assumed an advisory or fiduciary
responsibility in favor of WFASC with respect to the offering
contemplated hereby or the process leading thereto (irrespective
of
whether the Underwriter has advised or is currently advising WFASC
on
other matters) or any other obligation to WFASC except the
obligations
expressly set forth in this Agreement and (iv) WFASC has consulted
its
own legal advisors to the extent it deemed appropriate.
(xv) WFASC is not, and on the date on which the first bona
fide offer of the Certificates is made will not be, an
"ineligible
issuer," as defined in Rule 405 under the Act.
(b) 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 the
Issuer
Free Writing 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.
(v) Wells Fargo Bank acknowledges and agrees that (i) the
purchase and sale of the Certificates pursuant to this Agreement is
an
arm's-length commercial transaction between WFASC and Wells Fargo
Bank,
on the one hand, and the Underwriter, on the other, (ii) in
connection
therewith and with the process leading to such transaction, the
Underwriter is acting solely as a principal and not the agent
or
fiduciary of Wells Fargo Bank, (iii) Underwriter has not assumed
an
advisory or fiduciary responsibility in favor of Wells Fargo Bank
with
respect to the offering contemplated hereby or the process
leading
thereto (irrespective of whether the Underwriter has advised or
is
currently advising Wells Fargo Bank on other matters) or any
other
obligation to Wells Fargo Bank except the obligations expressly
set
forth in this Agreement and (iv) Wells Fargo Bank has consulted its
own
legal advisors to the extent it deemed appropriate.
2. Purchase Price. The purchase price at which the Underwriter
will
purchase the Certificates shall be the aggregate purchase price set
forth in the
applicable Terms Agreement.
3. Delivery and Payment. The Certificates shall be delivered at
the
office, on the 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
Time of Sale
Information and the Prospectus and that the Underwriter will not
offer, sell or
otherwise distribute the Certificates (except for the sale thereof
in exempt
transactions) in any state in which the Certificates are not exempt
from
registration under state securities laws or Blue Sky laws (except
where the
Certificates will have been qualified for offering and sale at the
direction of
the Underwriter under such state securities laws or Blue Sky laws).
In
connection with such offering(s), the Underwriter agrees to provide
WFASC with
information related to the offer and sale of the Certificates that
is reasonably
requested by WFASC, from time to time (but not in excess of three
years from the
Closing Date), and necessary for complying with its tax reporting
obligations,
including, without limitation, the issue price of the
Certificates.
(b) The Underwriter agrees that it will not sell or transfer
any
Certificate or interest therein in the initial sale or transfer of
such
Certificate by the Underwriter in an amount less than the minimum
denomination
for such Certificate to be set forth in the Issuer Free Writing
Prospectus and
the Prospectus Supplement.
(c) The Underwriter further agrees that (i) if it delivers to
an
investor the Prospectus in portable document format ("PDF"), upon
the
Underwriter's receipt of a request from the investor within the
period for which
delivery of the Prospectus is required, the Underwriter will
promptly deliver or
cause to be delivered to the investor, without charge, a paper copy
of the
Prospectus and (ii) it will provide to WFASC any Underwriter Free
Writing
Prospectuses (as defined in Section 9(a)), or portions thereof,
which WFASC is
required to file with the Commission in electronic format and will
use
reasonable efforts to provide to WFASC such Underwriter Free
Writing
Prospectuses, or portions thereof, in either Microsoft Word(R) or
Microsoft
Excel(R) format and not in a PDF, except to the extent that WFASC,
in its sole
discretion, waives such requirements.
(d) The Underwriter represents and warrants to, and agrees with,
WFASC,
as of the date of the applicable Terms Agreement and as of the
Closing Date,
that:
(i) In relation to each Member State of the European Economic
Area which has implemented the Prospectus Directive (each, a
"Relevant Member
State"), it has not made and will not make an offer of Certificates
to the
public in that Relevant Member State prior to the publication of a
prospectus in
relation to the Certificates which has been approved by the
competent authority
in that Relevant Member State or, where appropriate, approved in
another
Relevant Member State and notified to the competent authority in
that Relevant
Member State, all in accordance with the Prospectus Directive,
except that it
may, with effect from and including the relevant implementation
date, make an
offer of Certificates to the public in that Relevant Member State
at any time:
(A) to legal entities which are authorized or
regulated to operate in the financial markets or, if not so
authorized
or regulated, whose corporate purpose is solely to invest in
securities;
(B) to any legal entity which has two or more of (1)
an average of at least 250 employees during the last financial
year;
(2) a total balance sheet of more than (euro)43,000,000 and (3)
an
annual net turnover of more than (euro)50,000,000, as shown in its
last
annual or consolidated accounts; or
(C) in any other circumstances which do not require
the publication by the issuer of a prospectus pursuant to Article 3
of
the Prospectus Directive.
For the purposes of this representation, the expression an
"offer of Certificates to the public" in relation to any
Certificates in any
Relevant Member State means the communication in any form and by
any means of
sufficient information on the terms of the offer and the
Certificates to be
offered so as to enable an investor to decide to purchase or
subscribe the
Certificates, as the same may be varied in that Member State by any
measure
implementing the Prospectus Directive in that Member State and the
expression
"Prospectus Directive" means the European Commission Directive
2003/71/EC and
includes any relevant implementing measure in each Relevant Member
State.
(ii) It has only communicated or caused to be communicated and
will only communicate or cause to be communicated an invitation or
inducement to
engage in investment activity (within the meaning of Section 21 of
the United
Kingdom Financial Services and Markets Act 2000 (the "FSMA"))
received by it in
connection with the issue or sale of the Certificates in
circumstances in which
Section 21(1) of the FSMA does not apply to the issuer.
(iii) It has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to the
Certificates in, from or otherwise involving the United
Kingdom.
5. Agreements. WFASC agrees with the Underwriter that:
(a) WFASC will cause the Prospectus to be filed with the
Commission
pursuant to Rule 424 under the Act and, if necessary, within 15
days of the
Closing Date, will file a report on Form 8-K setting forth specific
information
concerning the Certificates, and will promptly advise the
Underwriter when the
Prospectus has been so filed, and, prior to the termination of the
offering of
the Certificates, will also promptly advise the Underwriter (i)
when any
amendment to the Registration Statement has become effective or any
revision of
or supplement to the Prospectus has been so filed (unless such
amendment,
revision or supplement does not relate to the Certificates), (ii)
of any request
by the Commission for any amendment of the Registration Statement
or the
Prospectus or for any additional information (unless such request
does not
relate to the Certificates), and (iii) of the issuance by the
Commission of any
stop order suspending the effectiveness of the Registration
Statement with
respect to the Certificates or the institution or, to the knowledge
of WFASC,
the threatening of any proceeding for that purpose. WFASC will use
its best
efforts to prevent the issuance of any such stop order and, if
issued, to obtain
as soon as possible the withdrawal thereof. Except as otherwise
provided in
Section 5(b) hereof, WFASC will not file prior to the termination
of such
offering any amendment to the Registration Statement or any
revision of or
supplement to the Prospectus (other than any such amendment,
revision or
supplement which does not relate to the Certificates) which shall
be disapproved
by the Underwriter after reasonable notice and review of such
filing.
(b) If, at any time when a prospectus relating to the Certificates
is
required to be delivered under the Act (without regard to reliance
on Rule 174
under the Act) (i) any event occurs as a result of which the
Prospectus as then
amended or supplemented would include any untrue statement of a
material fact or
omit to state a material fact necessary to make the statements
therein in the
light of the circumstances under which they were made not
misleading, or (ii) it
shall be necessary to revise, amend or supplement the Prospectus to
comply with
the Act or the rules and regulations of the Commission thereunder,
WFASC
promptly will notify the Underwriter and will, upon request of the
Underwriter,
or may, after consultation with the Underwriter, prepare and file
with the
Commission a revision, amendment or supplement which will correct
such statement
or omission or effect such compliance, and furnish without charge
to the
Underwriter as many copies as the Underwriter may from time to time
reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will
correct such statement or omission or effect such compliance.
(c) WFASC will (i) furnish to the Underwriter and counsel for
the
Underwriter, without charge, conformed copies of the Registration
Statement
(including exhibits thereto) and, so long as delivery of a
prospectus relating
to the Certificates is required under the Act, as many copies of
the Prospectus
and any revisions or amendments thereof or supplements thereto as
may be
reasonably requested, and (ii) file promptly all reports and any
definitive
proxy or information statements required to be filed by WFASC with
the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act (as
such requirements may be modified pursuant to Section 12(h) of the
Exchange Act)
subsequent to the date of the Prospectus and for so long as the
delivery of a
prospectus is required under applicable law in connection with the
offering or
sale of the Certificates.
(d) WFASC will, as between itself and the Underwriter, pay all
expenses
incidental to the performance of its obligations under this
Agreement including,
without limitation, (i) expenses of preparing, printing,
reproducing and filing
the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus,
the Pooling and Servicing Agreement and the Certificates, (ii) the
cost of
delivering the Certificates to the Underwriter, insured to the
satisfaction of
the Underwriter, (iii) the fees charged by (a) securities rating
services for
rating the Certificates and (b) WFASC's independent accountants in
connection
with the letters to be delivered pursuant to Section 6(g) hereof,
(iv) the fees
and expenses of the Trustee, the Securities Administrator, if
applicable, and
any agent of the Trustee or the Securities Administrator, if
applicable, and the
fees and disbursements of counsel for the Trustee and the
Securities
Administrator, if applicable, in connection with the Pooling and
Servicing
Agreement and the Certificates, and (v) all other costs and
expenses incidental
to the performance by WFASC of WFASC's obligations hereunder which
are not
otherwise specifically provided for in this subsection. It is
understood that,
except as provided in this paragraph (d) and in Sections 7 and 12
hereof, the
Underwriter will pay all of its own expenses, including (i) the
fees of any
counsel to the Underwriter, (ii) any transfer taxes on resale of
any of the
Certificates by it, (iii) any advertising expenses connected with
any offers
that the Underwriter may make, (iv) any expenses for the
qualification of the
Certificates under state securities laws or Blue Sky laws,
including filing fees
and the fees and disbursements of counsel for the Underwriter in
connection
therewith and in connection with the preparation of any Blue Sky
survey, and (v)
any expenses incurred in connection with the preparation and
delivery of any
Underwriter Free Writing Prospectus and the filing of such Free
Writing
Prospectus, if required to be filed by Underwriter with the
Commission.
(e) So long as any Certificates are outstanding, upon the request
of
the Underwriter, WFASC will, or will cause the Servicer to, furnish
to the
Underwriter, as soon as available, a copy of (i) the annual
statement of
compliance delivered by the Servicer to the Trustee or the
Securities
Administrator under the Pooling and Servicing Agreement, (ii) the
annual
independent public accountants' servicing report furnished to the
Trustee or the
Securities Administrator pursuant to the Pooling and Servicing
Agreement, (iii)
each report of WFASC regarding the Certificates filed with the
Commission under
the Exchange Act or mailed to the holders of the Certificates, and
(iv) from
time to time, such other information concerning the Certificates
which may be
furnished by WFASC or the Servicer without undue expense and
without violation
of applicable law.
(f) 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, at the request of the Underwriter, use reasonable efforts to
take such
action as may be necessary or appropriate to permit the public
offering and sale
of the Certificates as contemplated herein.
6. Conditions to the Obligation of the Underwriter. The obligation
of
the Underwriter to purchase the Certificates shall be subject to
the accuracy in
all material respects of the representations and warranties on the
part of WFASC
and 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) purpor
