[FORM OF UNDERWRITING AGREEMENT]
NORWEST STRUCTURED ASSETS, INC.
Mortgage Asset-Backed Pass-Through Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
__________[ ], 199_
[Underwriter]
[Address]
Ladies and Gentlemen:
Norwest Structured Assets, Inc., a Delaware corporation (the "Company")
proposes to issue and sell from time to time its Mortgage Asset-Backed
Pass-Through Certificates in various series, each series of which may be divided
into classes and each class of which may be divided into subclasses, in one or
more offerings on terms determined at the time of sale. One or more series of
Mortgage Asset-Backed Pass-Through Certificates may be offered through you, as
underwriter (the "Underwriter"). Whenever the Company determines to make an
offering of a series of its Mortgage Asset-Backed Pass-Through Certificates
through the Underwriter, the Company and Norwest Mortgage, Inc., a California
corporation ("Norwest Mortgage"), 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 Asset-Backed
Pass-Through Certificates to the Underwriter. The Company is a wholly-owned
subsidiary of Norwest Mortgage. The Mortgage Asset-Backed Pass-Through
Certificates of the series, classes and subclasses 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 Certificates will have the characteristics set forth in the applicable Terms
Agreement and will evidence the ownership interests in a trust consisting of
mortgage loans acquired by the Company (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 under 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 the Company,
as depositor, Norwest Bank Minnesota, National Association, a national banking
association ("Norwest 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 $100,000, or such lesser amount 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 between the Underwriter, the Company
and Norwest Mortgage. Each offering of Mortgage Asset-Backed 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) The Company represents and
warrants to, and agrees with, the Underwriter as of the date of the applicable
Terms Agreement that:
(i) A registration statement (File No. ___________), including a
prospectus, has been filed with the Securities and Exchange Commission (the
"Commission") and has become effective under the Securities Act of 1933, as
amended (the "Act"), and no stop order suspending the effectiveness of such
registration statement has been issued and no proceedings for that purpose
have been initiated or to the Company's knowledge threatened by the
Commission; and the prospectus in the form in which it will be used in
connection with the offering of the Certificates is proposed to be
supplemented by a prospectus supplement relating to the Certificates and,
as so supplemented, to be filed with the Commission pursuant to Rule 424
under the Act. (Such registration statement, as amended to the date of the
applicable Terms Agreement, excluding for purposes of this Agreement any
information contained in any Form 8-K filed and incorporated by reference
therein pursuant to Section 9 hereof or pursuant to any other underwriting
agreement entered into by the Company, is hereinafter referred to as the
"Registration Statement"; such prospectus supplement, as first filed with
the Commission, is hereinafter referred to as the "Prospectus Supplement";
and such prospectus, in the form in which it will first be filed with the
Commission in connection with the offering of the Certificates, as
supplemented by the Prospectus Supplement, is hereinafter referred to as
the "Prospectus"; all references herein to the Prospectus or to the
Prospectus, as revised, amended, or supplemented, shall be deemed to
exclude any information contained in any Form 8-K filed and incorporated by
reference therein pursuant to Section 9 hereof or pursuant to any other
underwriting agreement entered into by the Company).
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(ii) The Registration Statement and the Prospectus, as of the date of
the Prospectus Supplement, will conform, and the Registration Statement and
the Prospectus, as revised, amended or supplemented and filed with the
Commission prior to the termination of the offering of the Certificates, as
of their respective effective or issue dates, will conform in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder applicable to such documents as of such
respective dates, and the Registration Statement and the Prospectus, as
revised, amended or supplemented and filed with the Commission as of the
"Closing Date" (as hereinafter defined), will conform in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder applicable to such documents; and the
Registration Statement and the Prospectus, as of the date of the Prospectus
Supplement, will not include any untrue statement of a material fact or
will not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and, in the case of
the Prospectus, as revised, amended or supplemented and filed prior to the
Closing Date, as of the Closing Date, will not include any untrue statement
of a material fact or will not omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that the Company makes no representations, warranties or
agreements (A) as to the information contained in or omitted from the
Prospectus or any revision or amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of the Underwriter specifically for use in
connection with the preparation of the Prospectus or any revision or
amendment thereof or supplement thereto or (B) based on the failure by the
Underwriter to deliver to the Company in a timely manner any information
required to be filed by the Company pursuant to Section 9 or as to any
untrue statement or alleged untrue statement of a material fact contained
in such information, or an omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, when considered in conjunction with the Prospectus, and
in the light of the circumstances under which they were made, not
misleading, except to the extent that such misstatements are the result of
inaccurate information with respect to the Mortgage Loans supplied by the
Company to the Underwriter which was not corrected by information
subsequently supplied by the Company to the Underwriter at any time prior
to the earlier of (Y) the written confirmation of a sale of the
Certificates, which sale results in the loss, claim, damage or liability
arising out of or based upon such misstatement, and (Z) the 90th day
following the filing of the Prospectus, as amended or supplemented, with
the Commission.
(iii) Assuming that certain of the Certificates are rated at the time
of issuance in one of the two highest rating categories by a nationally
recognized statistical rating organization, each such Certificate at such
time will be a "mortgage related security" as
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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, the Company 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 the Company and, as of the Closing Date, the Pooling and Servicing
Agreement will have been duly authorized, executed and delivered by the
Company 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 the Company 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) The Company 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 the
Company, and the Company 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 the
Company is a party or by which it or its properties are bound, or (ii) any
law, decree, order, rule or regulation applicable to the Company of any
court or supervisory, regulatory, administrative or governmental agency,
body or
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authority, or arbitrator having jurisdiction over the Company, or its
properties, the default in or the breach or violation of which would have a
material adverse effect on the Company or the ability of the Company 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 the Company 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 the
Company), 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 the Company is a party, or to the best of the
Company's knowledge threatened against the Company, 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 the Company or could reasonably
interfere with or materially and adversely affect the consummation of the
transactions contemplated herein.
(x) At the Closing Date the representations and warranties made by
the Company 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, the Company 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. The Company 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
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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 the
Company at 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 the Company in accordance with the Pooling and Servicing Agreement.
(xiii) The transfer of the Mortgage Loans and the related assets to the
Trust Estate at the Closing Date will be treated by the Company for
financial accounting and reporting purposes as a sale of assets and not as
a pledge of assets to secure debt.
(b) Norwest Mortgage represents and warrants to, and agrees with, the
Underwriter as of the date of the applicable Terms Agreement that:
(i) Norwest Mortgage has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
California 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 Norwest Mortgage of this Agreement
are within the corporate power of Norwest Mortgage and have been duly
authorized by all necessary corporate action on the part of Norwest
Mortgage.
(iii) Neither the execution and delivery of this Agreement, nor the
consummation by Norwest Mortgage 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 certificate of incorporation or bylaws of Norwest
Mortgage.
(iv) This Agreement has been duly authorized, executed and delivered
by Norwest Mortgage.
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.
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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 the Company (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 the Company
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. The Company 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 the Company with information related to the
offer and sale of the Certificates that is reasonably requested by the Company,
from time to time (but not in excess of one year from the Closing Date), and
necessary for complying with its tax reporting obligations, including, without
limitation, the issue price of the Certificates.
The Underwriter further 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.
5. AGREEMENTS. The Company agrees with the Underwriter that:
(a) The Company will cause the Prospectus to be filed with the Commission
pursuant to Rule 424 under the Act and, if necessary, within 15 days of the
Closing Date, will file a report on Form 8-K setting forth specific information
concerning the Certificates (but will not include any information required to be
filed under Section 9), and will promptly advise the Underwriter when the
Prospectus has been so filed, and, prior to the termination of the offering of
the Certificates, will also promptly advise the Underwriter (i) when any
amendment to the Registration Statement has become effective or any revision of
or supplement to the Prospectus has been so filed (unless such amendment,
revision or supplement does not relate to the Certificates), (ii) of any request
by the Commission for any amendment of the Registration Statement or the
Prospectus or for any additional information
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(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 the Company, the threatening of any proceeding for that
purpose. The Company 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, the Company will
not file prior to the termination of such offering any amendment to the
Registration Statement or any revision of or supplement to the Prospectus (other
than any such amendment, revision or supplement which does not relate to the
Certificates) which shall be disapproved by the Underwriter after reasonable
notice and review of such filing.
(b) If, at any time when a prospectus relating to the Certificates is
required to be delivered under the Act (i) any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein in the light of the circumstances under which they were
made not misleading, or (ii) it shall be necessary to revise, amend or
supplement the Prospectus to comply with the Act or the rules and regulations of
the Commission thereunder, the Company 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) The Company 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 the Company 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) The Company will, as between itself and the Underwriter, pay all
expenses incidental to the performance of its obligations under this Agreement
including, without limitation, (i) expenses of preparing, printing and
reproducing the Registration Statement, the Prospectus, the Pooling and
Servicing Agreement and the Certificates, (ii) the cost of delivering the
Certificates to the Underwriter, insured to the satisfaction of the Underwriter,
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(iii) the fees charged by securities rating services for rating the
Certificates, (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 the Company of the Company's
obligations hereunder which are not otherwise specifically provided for in this
subsection. It is understood that, except as provided in this paragraph (d) and
in Sections 7 and 12 hereof, the Underwriter will pay all of its own expenses,
including (i) the fees of any counsel to the Underwriter, (ii) any transfer
taxes on resale of any of the Certificates by it, (iii) any advertising expenses
connected with any offers that the Underwriter may make, (iv) any expenses for
the qualification of the Certificates under state securities laws or Blue Sky
laws, including filing fees and the fees and disbursements of counsel for the
Underwriter in connection therewith and in connection with the preparation of
any Blue Sky survey and (v) any expenses incurred in connection with the
preparation of any Computational Materials, Structural Term Sheets and
Collateral Term Sheets (each as defined in Section 9) and the filing of such
materials with the Commission.
(e) So long as any Certificates are outstanding, upon the request of the
Underwriter, the Company 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 the Company 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 the Company or the Master Servicer without undue
expense and without violation of applicable law.
6. CONDITIONS TO THE OBLIGATION OF THE UNDERWRITER. The obligation of
the Underwriter to purchase the Certificates shall be subject to the accuracy in
all material respects of the representations and warranties on the part of the
Company and Norwest Mortgage contained herein as of the date of the applicable
Terms Agreement and as of the Closing Date, to the accuracy of the statements of
the Company and Norwest Mortgage made in any officer's certificate pursuant to
the provisions hereof, to the performance in all material respects by the
Company 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.
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(b) The Company shall have furnished to the Underwriter a certificate,
dated the Closing Date, of the Company, signed by a vice president of the
Company, 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 the Company 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 the Company has complied
with all agreements and satisfied all the conditions on its part to be
performed or satisfied at 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 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) The Company shall have caused Norwest Mortgage to furnish to the
Underwriter a certificate, dated the Closing Date, of Norwest Mortgage, signed
by a vice president or an assistant vice president of Norwest Mortgage, to the
effect that the representations and warranties of Norwest Mortgage 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 Norwest Mortgage 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) The Company shall have furnished to the Underwriter an opinion, dated
the Closing Date, of Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the Company, to
the effect that:
(i) The Company is a corporation validly existing as a corporation in
good standing under the laws of the State of Delaware;
(ii) The Certificates have been duly authorized and executed and,
assuming authentication and delivery in the manner contemplated in the
Pooling and Servicing Agreement, are validly issued and outstanding and
entitled to the benefits provided by the Pooling and Servicing Agreement
and this Agreement, and upon delivery by the Company of the Certificates to
the Underwriter and payment by the Underwriter of the purchase price
therefor in the manner contemplated by this Agreement, the Underwriter
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will acquire the Certificates 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;
(iii) 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;
(iv) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Company and, assuming valid execution and
delivery thereof by the Master Servicer, the Trustee and the Trust
Administrator, if applicable, constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, reorganization or other
laws of general applicability relating to or affecting creditors' rights
generally and to general equity principles, regardless of whether such
enforcement is considered in a proceeding at law or in equity;
(v) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and 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;
(vi) The Registration Statement has become effective under the Act,
and, to the best of the knowledge of such counsel, (x) 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 or are pending or have been threatened under the Act; (y)
the Registration Statement and the Prospectus, as of the date of the
Prospectus Supplement, and each revision or amendment thereof or supplement
thereto relating to the Certificates, as of its effective or issue
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date, appeared on their respective faces to be appropriately responsive 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 (z) the Prospectus, as revised, amended or
supplemented as of the Closing Date, 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 to be used as of the
Closing Date; in the course of such counsel's review of the Registration
Statement and the Prospectus and discussion of the same with certain
officers of the Company and its accountants, no facts came to the attention
of such counsel that caused such counsel to believe that the Registration
Statement or the Prospectus, as of the date of the Prospectus Supplement,
or any revision or amendment thereof or supplement thereto, as of its
effective or issue date, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or that the Prospectus, or any
revision or amendment thereof or supplement thereto filed prior to the date
of such opinion, as of the date of such opinion, contained any untrue
statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; the descriptions in the Registration
Statement and the Prospectus, as of the date of such opinion, of the
Certificates and the Pooling and Servicing Agreement and such descriptions,
as of the date of the Prospectus Supplement, of the aspects of certain
statutes as set forth in the Prospectus under the headings "ERISA
Considerations" and "Certain Federal Income Tax Consequences" were, to the
extent that they constitute matters of law or legal conclusions, accurate;
and such counsel does not know of any contracts or documents relating to
the Company of a character required to be described in or to be filed as
exhibits to the Registration Statement, as of the date of the Prospectus
Supplement, which were not described and filed as required; it being
understood that such counsel need express no opinion as to the financial
statements or other financial, numerical or statistical data contained in
the Registration Statement or the Prospectus or any material incorporated
by reference in the Registration Statement or the Prospectus;
(vii) This Underwriting Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Company;
(viii) No consent, approval, authorization or order of any State of New
York or federal governmental agency or body or, to the knowledge of such
counsel, any State of New York or federal court is required for the
consummation by the Company of the transactions contemplated by the terms
of this Agreement or the Pooling and Servicing Agreement except such as may
be required under the Blue Sky laws of any jurisdiction in connection with
the offering, sale or acquisition of the Certificates, any recordations of
the 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 and such other
approvals as have been obtained;
(ix) The sale of the Certificates to the Underwriter pursuant to this
Agreement and the consummation of any of the transactions contemplated by
the terms of the Pooling and Servicing Agreement or this Agreement do not
conflict with or result in a breach or violation of any material term or
provision of, or constitute a default under, the certificate of
incorporation or bylaws of the Company, or, to the knowledge of such
counsel, without independent investigation, any indenture or other
agreement or
12
instrument to which the Company is a party or by which it is bound, or any
State of New York or federal statute or regulation applicable to the
Company or, to the knowledge of such counsel, without independent
investigation, an order of any State of New York or federal court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Company; and
(x) To the knowledge of such counsel, without independent
investigation, after due inquiry, there are no legal or governmental
actions, investigations or proceedings pending to which the Company is a
party, or threatened against the Company, (A) asserting the invalidity of
this 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, (C) which might
materially and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, this 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 under the heading "Certain Federal Income Tax
Consequences." For purposes of the foregoing, such counsel may state that
it has not regarded any legal or governmental actions, investigations or
proceedings to be "threatened" unless the potential litigant or
governmental authority has manifested to the Company a present intention to
initiate such proceedings.
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 the Company. 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) Norwest Bank shall have furnished to the Underwriter an opinion, dated
the Closing Date, of counsel to Norwest Bank (who may be an employee of Norwest
Bank), to the effect that:
(i) Norwest Bank has been duly incorporated and is validly existing
as a national banking association and has the power and authority to enter
into, and to take all action required of it under, the Pooling and
Servicing Agreement;
13
(ii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by Norwest Bank and, assuming valid execution and
delivery thereof by the Company, the Trustee and the Trust Administrator,
if applicable, the Pooling and Servicing Agreement constitutes a valid and
legally binding agreement of Norwest Bank, enforceable against Norwest Bank
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or
affecting creditors' rights generally and to general equity principles
regardless of whether such enforcement is considered in a proceeding at law
or in equity;
(iii) No consent, approval, authorization or order of any Minnesota or
federal court or governmental agency or body is required for the
consummation by Norwest Bank of the transactions contemplated by the
Pooling and Servicing Agreement except any such as may be required under
the Blue Sky laws of any jurisdiction in connection with the offering, sale
or acquisition of the Certificates, any recordations of the assignment of
the mortgage loans evidenced by the Certificates pursuant to the Pooling
and Servicing Agreement that have not yet been completed and any approvals
as have been obtained;
(iv) The consummation by Norwest Bank of any of the transactions
contemplated by the terms of the Pooling and Servicing Agreement does not,
to the knowledge of such counsel, conflict with or result in a breach or
violation of any material term or provision of, or constitute a default
under, the charter or bylaws of Norwest Bank, any indenture or other
agreement or instrument to which Norwest Bank is a party or by which it is
bound, any state or federal statute or regulation applicable to Norwest
Bank or, to the knowledge of such counsel, any order of any state or
federal court, regulatory body, administrative agency or governmental body
having jurisdiction over Norwest Bank; and
(v) To the best knowledge of such counsel, there are no legal or
governmental actions, investigations or proceedings pending to which
Norwest Bank is a party, or threatened against Norwest Bank, (A) asserting
the invalidity of the Pooling and Servicing Agreement or (B) which might
materially and adversely affect the performance by Norwest Bank of its
obligations under, or the validity or enforceability of, the Pooling and
Servicing Agreement. For purposes of the foregoing, such counsel may state
that it has not regarded any legal or governmental actions, investigations
or proceedings to be "threatened" unless the potential litigant or
governmental authority has manifested to a member of the legal department
of Norwest Bank having responsibility for litigation matters involving the
master servicing activities of Norwest Bank a present intention to initiate
such proceedings.
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
14
parties to 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 Norwest Bank. Such opinion may be
qualified as an opinion only on the laws of the State of Minnesota and the
federal law of the United States and, with respect to the opinions set forth in
paragraph (e)(ii) above, the laws of the State of New York. To the extent that
such counsel relies upon the opinion of other counsel in rendering any portion
of its opinion, the opinion of such other counsel shall be attached to and
delivered with the opinion of such counsel that is delivered to the Underwriter.
(f) The Underwriter shall have received from counsel for the Underwriter
such opinion or opinions, dated the Closing Date, with respect to the issuance
and sale of the Certificates, the Registration Statement and the Prospectus, and
such other related matters as the Underwriter may reasonably require.
(g) The Company's independent accountants, as identified in the applicable
Terms Agreement (the "Independent Accountants"), shall have furnished to the
Underwriter a letter dated as of or prior to the date of first use of the
Prospectus Supplement in the form and reflecting the performance of the
procedures previously agreed to by the Company and the Underwriter.
(h) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company which the Underwriter concludes, in the
reasonable judgment of the Underwriter, materially impairs the investment
quality of the Certificates so as to make it impractical or inadvisable to
proceed with the public offering or the delivery of the Certificates as
contemplated by the Prospectus.
(i) The Certificates shall be rated not lower than the required ratings
set forth in the applicable Terms Agreement, such ratings shall not have been
rescinded and no public announcement shall have been made that either rating of
the Certificates has been placed under review (otherwise than for possible
upgrading).
(j) You shall have received an opinion of special counsel to the Company,
dated the Closing Date, in form and substance satisfactory to you, with respect
to certain state tax consequences under the tax laws of the jurisdiction in
which the Trustee is located relating to the Trust Estate and the holders of the
Certificates.
(k) You shall have received copies of any opinions of counsel to the
Company supplied to the rating organizations relating to certain matters with
respect to the Certificates. Any such opinions shall be dated the Closing Date
and addressed to you or accompanied by reliance letters to you or shall state
that you may rely upon them.
15
(l) The Company shall have furnished to the Underwriter such further
information, certificates and documents as the Underwriter may reasonably have
requested, and all proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be in all material
respects reasonably satisfactory in form and substance to the Underwriter and
its counsel.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, this
Agreement and all obligations of the Underwriter hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriter. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless the Underwriter and each person who controls the
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
may become subject under the Act, the Exchange Act, or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or in the Prospectus, or in any
revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it or him in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon (A) any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of the Underwriter specifically for use in
connection with the preparation thereof or (B) any untrue statement or alleged
untrue statement of a material fact contained in any information delivered by
the Underwriter to the Company pursuant to Section 9(e), or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, when
considered in conjunction with the Prospectus, and in the light of the
circumstances under which they were made, not misleading, except to the extent
that such misstatements are the result of inaccurate information with respect to
the Mortgage Loans supplied by the Company to the Underwriter which was not
corrected by information subsequently supplied by the Company to the Underwriter
at any time prior to the earlier of (i) the written confirmation of a sale of
the Certificates, which sale results in the loss, claim, damage or liability
arising out of
16
or based upon such misstatement, and (ii) the 90th day following the filing of
the Prospectus, as amended or supplemented, with the Commission; provided,
further, that the Company shall not be liable to the Underwriter and each person
who controls the Underwriter with respect to any Prospectus or any Prospectus
Supplement to the extent that any loss, claim, damage or liability results from
the fact that the Certificates were offered or sold to a person to whom there
was not delivered, at or prior to the written confirmation of such sale, a copy
of the Prospectus or of the Prospectus as then revised, amended or supplemented
in any case where such delivery is required by the Act or the Exchange Act, if
the Company has previously furnished copies thereof to the Underwriter. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the Company, its
officers who signed the Registration Statement or any amendment thereof, its
directors, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, and Norwest Mortgage, and each person who controls
Norwest Mortgage within the meaning of either the Act or the Exchange Act, (i)
to the same extent as the foregoing indemnities from the Company to the
Underwriter, but only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Underwriter specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto or (ii)
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) are based on, result from or arise out of any untrue statement or
alleged untrue statement of a material fact contained in any information
delivered by the Underwriter to the Company pursuant to Section 9(e), or arise
out of or are based upon the omission or alleged omission to state in such
information a material fact required to be stated therein or necessary to make
the statements therein, when considered in conjunction with the Prospectus, and
in the light of the circumstances under which they were made, not misleading;
except to the extent that such misstatements are the result of inaccurate
information with respect to the Mortgage Loans supplied by the Company to the
Underwriter which was not corrected by information subsequently supplied by the
Company to the Underwriter at any time prior to the earlier of (A) the written
confirmation of a sale of the Certificates, which sale results in the loss,
claim, damage or liability arising out of or based upon such misstatement, and
(B) the 90th day following the filing of the Prospectus, as amended or
supplemented, with the Commission. This indemnity agreement will be in addition
to any liability which the Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified
17
party otherwise than under this Section 7. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after receipt of
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation by the indemnified party
undertaken with notice to and approval by the indemnifying party.
(d) If the indemnification provided for in this Section 7 is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to (A) in subsection (a) or (b)(i) above in such proportion
as is appropriate to reflect both (i) the relative benefits received by the
Company on the one hand and the Underwriter on the other from the offering of
the Certificates and (ii) the relative fault of the Company on the one hand and
the Underwriter on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations and (B) in subsection (b)(ii) above, in
such proportion as is appropriate to reflect the relative fault of the
Underwriter on the one hand and the Company on the other in connection with the
actions, statements or omissions that resulted in such losses, claims, damages
or liabilities. The relative benefits received by the Company on the one hand
and the Underwriter on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the difference between (i) the total price at which the
Certificates underwritten by the Underwriter and distributed to the public were
offered to the public, and (ii) the portion of the total net proceeds from the
offering (before deducting expenses) received by the Company attributable to the
Certificates. The relative fault for the purposes of clauses (A) and (B) above
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact related to information supplied by the Company or the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company, Norwest Mortgage and the Underwriter agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d)
shall
18
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), and with respect to losses, claims, damages
or liabilities referred to in subsection (a) or (b) above, the Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Certificates underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Underwriter within the meaning of the Act; and the obligations of the
Underwriter under this Section 7 shall be in addition to any liability which the
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to (i) the officers of the Company who signed the Registration
Statement or any amendment thereof, to its directors, and to each person who
controls the Company within the meaning of either the Act or the Exchange Act
and (ii) each person who controls Norwest Mortgage within the meaning of either
the Act or the Exchange Act.
8. OBLIGATIONS OF NORWEST MORTGAGE. Norwest Mortgage agrees with the
Underwriter, for the sole and exclusive benefit of the Underwriter and each
person who controls the Underwriter within the meaning of either the Act or the
Exchange Act and not for the benefit of any assignee thereof or any other person
or persons dealing with the Underwriter, in consideration of and as an
inducement to its agreement to purchase the Certificates from the Company, to
indemnify and hold harmless the Underwriter against any failure by the Company
to perform its obligations to the Underwriter pursuant to Section 7 hereof;
provided, however, that the aggregate liability of Norwest Mortgage for the
foregoing indemnity shall not exceed an amount equal to the aggregate principal
amount of the Certificates.
9. FILING OF INVESTOR INFORMATION. (a) The Company agrees to file with
the Commission current reports on Form 8-K under the Exchange Act in accordance
with paragraph (c) below, containing the Computational Materials, Structural
Term Sheets and Collateral Term Sheets described in paragraph (b) below,
provided by the Underwriter to the Company in accordance with paragraph (e)
below and subject, in the case of Computational Materials and Structural Term
Sheets, to the conditions precedent set forth in paragraph (d) below for the
purpose of permitting the Underwriter to comply as to the Certificates with the
No-Action Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx
Acceptance
19
Corporation I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx Structured Asset
Corporation and the No-Action Letter of May 27, 1994 issued by the Commission to
the Public Securities Association (collectively, the "Xxxxxx/PSA Letter") and
the No-Action Letter of February 17, 1995 issued by the Commission to the Public
Securities Association (the "PSA Letter").
(b)(i) For purposes of Section 9(a), Computational Materials shall mean
any information with respect to the Certificates which constitutes
"computational materials", as defined in the Xxxxxx/PSA Letter ("Computational
Materials"), excluding (i) complex multi-scenario vector analyses, (ii)
option-adjusted spreads and (iii) option-adjusted durations, prepared by the
Underwriter and delivered to investors, which information may be aggregated and
filed in consolidated form to the extent described in the Xxxxxx/PSA Letter, and
that meets the criteria set forth in Section 9(b)(ii).
For purposes of Section 9(a), Structural Term Sheets and Collateral Term
Sheets shall mean any information with respect to the Certificates which
constitutes "Structural Term Sheets" and "Collateral Term Sheets" as defined in
the PSA Letter and that, with respect to Structural Term Sheets meets the
criteria set forth in Section 9(b)(ii).
(ii) For purposes of Section 9(a), Computational Materials and
Structural Term Sheets are those that:
(A) are generated based on assumptions regarding the payment
priorities and characteristics of a class or subclass of Certificates
that will be actually issued and purchased by the Underwriter; and
(B) are provided to prospective investors under the following
conditions prior to the time of filing of the Prospectus pursuant to
Rule 424(b) under the Act:
(x) in the case of each prospective investor that has
orally indicated to the Underwriter that it will purchase all or
a portion of a class or subclass of Certificates to which such
Computational Materials or Structural Term Sheets, as the case
may be, relate, the Computational Materials or Structural Term
Sheets, as the case may be, relating to such class or subclass
that are sent to such prospective investor; and
(y) for any prospective investor, all Computational
Materials or Structural Term Sheets, as the case may be, that are
sent to such prospective investor after the structure for the
entire issue of Certificates is finalized.
20
Computational Materials and Structural Term Sheets required to be filed
with the Commission will not include materials relating to abandoned structures
or materials that are furnished to prospective investors prior to the time that
the structure of the entire issue of Certificates is finalized where such
investors have not indicated to the Underwriter their intention to purchase the
Certificates described in such materials.
(c)(i) Subject to the timely receipt pursuant to Section 9(e)(i) of the
Computational Materials and Structural Term Sheets to be filed and the
satisfaction of the condition precedent set forth in paragraph (d), the Company
agrees and covenants to file the Computational Materials and Structural Term
Sheets delivered to it by the Underwriter not later than the filing of the
Prospectus pursuant to Rule 424 under the Act.
(ii) Subject to the timely receipt pursuant to Section 9(e)(ii) of the
Collateral Term Sheets to be filed, the Company agrees and covenants to file the
Collateral Term Sheets delivered to it by the Underwriter within two business
days of delivery.
(iii) The Company agrees to file any information delivered to the
Company for filing pursuant to Section (9)(e)(v) (A) or (C) on the business day
following the receipt of the accountant's letter pursuant to Section 9(d) with
respect to such information.
(iv) The Company agrees to file any Collateral Term Sheet delivered to
the Company for filing pursuant to Section 9(e)(v)(B) within two business days
following the receipt of such Collateral Term Sheet.
(d)(i) It shall be a condition precedent to the Company's obligation to
file Computational Materials and Structural Term Sheets pursuant to this Section
9, that the Company shall have received a letter not later than 5:00 P.M. on the
business day prior to such filing from the Company's Independent Accountants,
reflecting the performance of procedures previously agreed to by the Company and
otherwise in form and substance satisfactory to the Company with respect to the
structural, financial, numerical or statistical information to be filed. The
Company agrees to cooperate with the Independent Accountants to facilitate the
obtaining of such letter but nothing contained herein shall be construed as a
representation by the Company that it will cause the Independent Accountants to
provide such letter or shall require the Company to accept a letter in substance
unsatisfactory to it. Such letter will be obtained at the sole expense of the
Underwriter. The Underwriter acknowledges and agrees that the Company is not
able to obtain such letter with respect to (i) complex multi-scenario vector
analyses, (ii) option-adjusted spreads and (iii) option-adjusted durations, and
accordingly, the Underwriter agrees it will not disseminate any such information
in written form to an investor prior to its delivery of a final Prospectus to
such investor.
21
(ii) The Underwriter agrees to cooperate with the Independent
Accountants and agrees to furnish revised Computational Materials or
Structural Term Sheets, if necessary, in order for the accountants to
provide such letter.
(iii) The Company intends, but is not obligated, to obtain a letter
from the Independent Accountants regarding the information set forth in any
Collateral Term Sheets filed or to be filed pursuant to Section 9(a). Any
such letter will be at the expense of the Underwriter. If the Independent
Accountants are unable to deliver such letter because of inaccuracies in
the Collateral Term Sheets, the provisions of Section 9(e)(v)(B) shall
apply.
(e)(i) The Underwriter agrees and covenants to deliver to the Company no
later than four business days before the delivery of the final Prospectus to the
Underwriter copies of all Computational Materials and Structural Term Sheets
that are required under the Xxxxxx/PSA Letter or the PSA Letter, as the case may
be, to be filed with the Commission.
(ii) The Underwriter agrees and covenants to deliver to the Company
any Collateral Term Sheets that are required under the PSA Letter to be
filed with the Commission simultaneously with the delivery of such
Collateral Term Sheets to an investor.
(iii) The Underwriter represents and warrants to the Company that the
Computational Materials, Structural Term Sheets and Collateral Term Sheets
to be furnished to the Company by the Underwriter for filing with the
Commission pursuant to Section 9(c)(i) or (ii) will constitute all
Computational Materials (either in original, aggregated or consolidated
form), Structural Term Sheets and Collateral Term Sheets with respect to
the Certificates that (i) were furnished to prospective investors by the
Underwriter in connection with its offer and sale of the Certificates and
(ii) are required to be filed with the Commission in order to secure the
relief granted under the Xxxxxx/PSA Letter or the PSA Letter, as the case
may be.
(iv) The Underwriter represents and warrants to, and covenants with,
the Company that any information produced by it and filed by the Company
with the Commission pursuant to this Section 9 as of the date of filing
will not include any untrue statements of a material fact and, when
considered in conjunction with the Prospectus, will not omit to state any
material facts required to be stated therein or necessary to make the
statements contained therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the Underwriter
22
makes no representation with respect to the accuracy of the Prospectus
exclusive of any information filed with the Commission pursuant to this
Section 9 and any other written information furnished to the Company by or
on behalf of the Underwriter specifically for use in connection with the
Prospectus and, provided further, that the Underwriter makes no
representation to the extent such misstatements are the result of
inaccurate information with respect to the Mortgage Loans supplied by the
Company to the Underwriter which was not corrected by information
subsequently supplied by the Company to the Underwriter prior to the
earlier of (A) the written confirmation of a sale of the Certificates which
sale results in a loss, claim, damage or liability arising out of or based
upon such misstatement, and (B) the 90th day following the filing of the
Prospectus, as amended or supplemented, with the Commission.
(v) The Underwriter covenants with the Company that:
(A) if a filing was made with the Commission with respect to a
structure which was considered final with respect to any class or
subclass of Certificates, and such structure is subsequently revised,
the Underwriter shall prepare and deliver to the Company for filing
with the Commission, pursuant to Section 9(c)(ii), revised
Computational Materials and Structural Term Sheets based on such
revised structure; and
(B) in the event that the Company determines that any information
contained in a Collateral Term Sheet is inaccurate, the Underwriter
shall prepare and deliver to any investor that received the inaccurate
Collateral Term Sheet and to the Company for filing with the
Commission pursuant to Section 9(c)(iv), a revised Collateral Term
Sheet.
(C) if any Computational Materials or Structural Term Sheets
filed with the Commission are determined by the Underwriter or the
Company, at any time prior to the 90th day following the filing of the
Prospectus, as amended or supplemented, with the Commission, to
contain any information that is inaccurate or misleading, and the
Company determines that as a result such Computational Materials or
Structural Term Sheets include an untrue statement of a material fact
or, when considered in conjunction with the Prospectus, will omit to
state any material fact required to be stated therein or necessary to
make the statements contained therein, in light of the circumstances
under which they were made, not misleading, the Underwriter shall
prepare and deliver to the Company for filing with the Commission
pursuant to Section 9(c)(iii), corrected Computational Materials or
Structural Term Sheets, as the case may be; provided, however, that if
such information is inaccurate or misleading solely because it is
based on inaccurate information with respect to the Mortgage Loans
supplied by the Company to the Underwriter, the Underwriter shall be
under no obligation to prepare and deliver to the Company corrected
Computational Materials or Structural Term Sheets, as the case may
be, unless and until corrected information is supplied by the
Company to the Underwriter
23
and such corrected information is supplied by the Company to the
Underwriter at any time prior to the 90th day following the filing of
the Prospectus, as amended or supplemented, with the Commission.
(vi) The Underwriter covenants with the Company that any Computational
Materials, Structural Term Sheets or Collateral Term Sheets delivered to
prospective investors shall contain the following legend:
"THIS INFORMATION IS FURNISHED TO YOU SOLELY BY [UNDERWRITER] AND NOT BY
THE ISSUER OF THE SECURITIES OR ANY OF ITS AFFILIATES. [UNDERWRITER] IS
ACTING AS UNDERWRITER AND NOT ACTING AS AGENT FOR THE ISSUER OR ITS
AFFILIATES IN CONNECTION WITH THE PROPOSED TRANSACTION."
or shall contain the legend mutually agreed upon between the Underwriter
and the Company as set forth in Exhibit B hereto.
In addition, the Underwriter covenants with the Company that any Collateral
Term Sheets delivered to prospective investors shall contain the additional
legend:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE DESCRIPTION OF
THE MORTGAGE LOANS CONTAINED IN THE PROSPECTUS SUPPLEMENT."
and, except for the initial Collateral Term Sheet sent to an investor,
"SUCH INFORMATION SUPERSEDES THE INFORMATION IN ALL PRIOR COLLATERAL TERM
SHEETS."
(f) Notwithstanding any other provision herein, the Underwriter and the
Company each agree to pay all costs and expenses of the other party including,
without limitation, legal fees and expenses, incurred in connection with any
successful action by the Underwriter or the Company against the other party to
enforce any of its rights set forth in this Section 9.
(g) The Underwriter covenants with the Company that it will make available
to the Company such personnel as are familiar with the Underwriter's compliance
procedures for the purpose of answering questions concerning the Underwriter's
practices and procedures for the preparation and dissemination of written
materials concerning the Certificates to prospective investors prior to the
delivery of the final Prospectus to such investors.
24
(h) The Underwriter covenants with the Company that after the final
Prospectus is available the Underwriter shall not distribute any written
information concerning the Certificates to a prospective investor unless such
information is preceded or accompanied by the final Prospectus.
10. TERMINATION. Subsequent to the execution of the applicable Terms
Agreement, this Agreement shall be subject to termination in the absolute
discretion of the Underwriter, by notice given to the Company prior to delivery
of and payment for the Certificates, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
materially limited or any setting of minimum prices for trading on such exchange
shall have been instituted, (ii) a general moratorium on commercial banking
activities in the State of New York shall have been declared by either federal
or New York State authorities, or (iii) there shall have occurred any material
outbreak or escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the reasonable judgment of the Underwriter, impracticable or inadvisable to
market the Certificates on the terms and in the manner contemplated by the
Prospectus as amended or supplemented. In addition, following receipt of notice
from the Company that the Mortgage Loans will not conform to the specifications
set forth in the applicable Terms Agreement, if, in the reasonable judgment of
the Underwriter, such disparity would have a material adverse effect on the
marketing and sale of the Certificates, the Underwriter may terminate this
Agreement not later than the close of business on the first business day after
receipt of such notice or, if earlier, the Closing Date.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, Norwest Mortgage and their respective officers and of the Underwriter
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriter,
the Company, Norwest Mortgage or any of the officers, directors or controlling
persons referred to in Section 7 hereof, and will survive delivery of and
payment for the Certificates. The provisions of Section 5(d), Section 7,
Section 8 and Section 12 hereof shall survive the termination or cancellation of
this Agreement.
12. REIMBURSEMENT OF EXPENSES. If for any reason, other than default by
the Underwriter in its obligation to purchase the Certificates, the material
breach by the Underwriter of any of its covenants in Section 9 hereof (without
the fault of the Company) or termination by the Underwriter pursuant to Section
10 hereof, the Certificates are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriter for all
out-of-pocket expenses of the Underwriter, including reasonable fees and
disbursements of its counsel, reasonably incurred by the Underwriter in making
preparations for the purchase, sale and delivery of the Certificates, but the
Company and Norwest Mortgage shall then be under no further liability to the
Underwriter with respect to the
25
Certificates except as provided in Section 5(d), Section 7 and Section 8 hereof.
If the Certificates are not delivered by or on behalf of the Company as provided
herein because of the default by the Underwriter in its obligation to purchase
the Certificates or the material breach by the Underwriter of any of its
covenants in Section 9 hereof (without the fault of the Company), the
Underwriter will reimburse the Company for all out-of-pocket expenses of the
Company, including reasonable fees and disbursements of its counsel, reasonably
incurred by the Company in making preparations for the issuance and delivery of
the Certificates, but the Underwriter shall then be under no further liability
to the Company with respect to the Certificates except as provided in Sections
5(d) and 7 hereof.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 hereof and
their respective successors and assigns, and no other person will have any right
or obligation hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. FINAL STRUCTURE DUE DATE. The Underwriter agrees to submit to the
Company not later than 9:00 a.m. New York City Time on the Final Structure Due
Date specified in the applicable Terms Agreement its determination of the final
structure relating to, among other items, the class designations, approximate
principal amounts and payment priorities of the Certificates. Changes to such
final structure may be made by the Underwriter after the Final Structure Due
Date if the changes are of a non-material nature. The determination as to
whether such changes are non-material shall be in the sole discretion of the
Company. In addition, on or before the Final Structure Due Date the Underwriter
may elect an extension thereof for an additional one or two business days beyond
the original Final Structure Due Date if the Underwriter notifies the Company of
its election not later than 9:00 a.m. New York City Time on such original Final
Structure Due Date and the Underwriter pays to the Company, on or prior to the
Closing Date, an extension fee of $100,000 for each day the Final Structure Due
Date is extended as reimbursement for the Company's costs and expenses arising
from such extension.
16. MISCELLANEOUS. Time shall be of the essence of this Agreement. This
Agreement supersedes all prior or contemporaneous agreements and understandings
relating to the subject matter hereof. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
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17. NOTICES. All communications hereunder will be in writing and
effective only on receipt and, if sent to the Underwriter, will be delivered to
[Underwriter], or if sent to the Company, will be delivered to the Company at
0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000; or if sent to Norwest Mortgage,
will be delivered to Norwest Mortgage at 000 Xxxxxxxxx 0xx Xxxxxx, Xxx Xxxxxx,
Xxxx 00000.
* * *
27
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement by and among the
Company, Norwest Mortgage and the Underwriter.
Very truly yours,
NORWEST STRUCTURED ASSETS, INC.
By:
---------------------------
Name:
Title:
NORWEST MORTGAGE, INC.
By:
---------------------------
Name:
Title:
The foregoing Underwriting
Agreement is hereby
confirmed and accepted as of
the date first above written.
[UNDERWRITER]
By:
---------------------------
Name:
Title:
28
Exhibit A
NORWEST STRUCTURED ASSETS, INC.
Mortgage Asset-Backed Pass-Through Certificates
Terms Agreement
[Underwriter] ________, 199_
[Address]
Underwriting Agreement dated __________[ ], 1996.
Title of Certificates: Mortgage Asset-Backed Pass-Through
Certificates, Series 199_,
[Classes] (the "Offered
Certificates").
Subclasses of Certificates: Each of the Class A Certificates
and the Class B Certificates will
consist of one or more Subclasses
with the prior consent of the
Company, which consent shall not be
unreasonably withheld. The Class
AP and Class M Certificates will
not be divided into subclasses.
Aggregate Principal Amount
of the Offered Certificates: $__________ (Approximate)
Certificates Not Offered Hereby: [Classes]
Subordination: "Shifting interest" structure.
Minimum Denominations of
Offered Certificates: $100,000 initial principal balance
and integral multiples of $1,000 in
excess thereof.
Description of the Mortgage Loans: Fixed interest rate, conventional,
monthly pay, fully amortizing, one-
to four-family, residential first
mortgage loans having original
stated terms to maturity of
approximately [ ] years.
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REMIC Election: Yes.
Cut-Off Date: ________ 1, 199_
Final Structure Due Date: ________ __, 199_
Distributions: Distributions will be made monthly
on the 25th day of each month or
the next succeeding Business Day
(the "Distribution Date").
Servicing Fee (Monthly fee
payable to each Servicer): [ ]% per to [ ]% per annum.
Master Servicing Fee (Monthly fee
payable to the Master Servicer): [ ]% per annum.
Fixed Retained Yield: [Yes][No].
Trustee:
[Trust Administrator: ]
Independent Accountants:
Book-Entry Registration: Settlement in "same-day" funds, to
the extent practicable. Any REMIC
residual, floating rate, stripped
and Class M Certificates will not
be issued in book-entry form,
unless authorized by the Company.
Optional Termination: [ ].
Required Ratings: [Ratings]
30
Closing Date, Location and Time: ________ __, 199_; offices of
Cadwalader, Xxxxxxxxxx & Xxxx, New
York, New York; 10:00 a.m. New York
City Time.
Purchase Price for the Certificates: [ ]% of the initial aggregate
principal amount of the Offered
Certificates plus accrued interest
thereon.
Date of Pooling and Servicing Agreement: The Closing Date.
31
