Exhibit 1.1
WELLS FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
Effective as of February 15, 2006
Citigroup Global Markets Inc.
390 Greenwich Street
New York, New York 10013
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
