Exhibit 1.1
STANDARD FORM
DIRECTORS ASSET CONDUIT CORPORATION
Home Equity Loan Asset-Backed Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
[Date]
[Underwriter]
[Address]
Ladies and Gentlemen:
Directors Asset Conduit Corporation, a Delaware corporation ("DACC")
proposes to issue and sell from time to time its Home Equity Loan Asset-Backed
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 Home Equity Loan
Asset- Backed Certificates may be offered through you, as underwriter (the
"Underwriter"). Whenever DACC determines to make an offering of a series of its
Home Equity Loan Asset-Backed Certificates through the Underwriter, DACC 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 Home Equity Loan Asset-Backed Certificates to the Underwriter.
DACC is a wholly-owned subsidiary of Norwest Mortgage. The Home Equity Loan
Asset-Backed 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 DACC (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
DACC, as depositor, Norwest Mortgage, as seller, 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, DACC and
Norwest Mortgage. Each offering of Home Equity Loan Asset- Backed Certificates
under this Underwriting Agreement will be governed by this Underwriting
Agreement, as supplemented by the applicable Terms Agreement. This Underwriting
Agreement, as supplemented by the applicable Terms Agreement, is referred to
herein as "this Agreement".
1. REPRESENTATIONS AND WARRANTIES. (a) DACC 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. 333-32577), 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 DACC'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 DACC, 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 DACC).
(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 DACC 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 DACC 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 DACC in a timely manner any information required to be
filed by DACC 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 DACC to the Underwriter which was not
corrected by information subsequently supplied by DACC 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 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, DACC 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 DACC and, as of the Closing Date, the Pooling and
Servicing Agreement will have been duly authorized, executed and
delivered by DACC 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, Norwest Mortgage and the Master Servicer, the Pooling and
Servicing Agreement will constitute a valid and binding agreement of
DACC 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) DACC 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 DACC, and DACC 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 DACC is a party or by which it or
its properties are bound, or (ii) any law, decree, order, rule or
regulation applicable to DACC of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or
arbitrator having jurisdiction over DACC, or its properties, the
default in or the breach or violation of which would have a material
adverse effect on DACC or the ability of DACC 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
DACC 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 DACC), 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 DACC is a party, or to the
best of DACC's knowledge threatened against DACC, 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 DACC 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 DACC 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, DACC 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. DACC 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 DACC 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 DACC 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 DACC 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.
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 DACC (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 DACC 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. DACC 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 DACC with information related to the offer and
sale of the Certificates that is reasonably requested by DACC, 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. DACC agrees with the Underwriter that:
(a) DACC 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 (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 DACC, the
threatening of any proceeding for that purpose. DACC 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, DACC 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, DACC 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) DACC 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 DACC 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) DACC 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, (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 DACC of DACC'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, DACC 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 DACC 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 DACC 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 DACC
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 DACC
and Norwest Mortgage made in any officer's certificate pursuant to the
provisions hereof, to the performance in all material respects by DACC 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) DACC shall have furnished to the Underwriter a certificate, dated
the Closing Date, of DACC, signed by a vice president of DACC, 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 DACC 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 DACC 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) DACC 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) DACC shall have furnished to the Underwriter an opinion, dated the
Closing Date, of Stroock & Stroock & Xxxxx LLP, counsel to DACC, to the effect
that:
(i) DACC 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 DACC 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 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 DACC and, assuming valid
execution and delivery thereof by the Master Servicer, Norwest
Mortgage, the Trustee and the Trust Administrator, if applicable,
constitutes a valid and legally binding agreement of DACC, enforceable
against DACC 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 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 DACC 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 DACC 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 DACC;
(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 DACC 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 DACC, or, to the
knowledge of such counsel, without independent investigation, any
indenture or other agreement or instrument to which DACC is a party or
by which it is bound, or any State of New York or federal statute or
regulation applicable to DACC 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 DACC; 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 DACC is a
party, or threatened against DACC, (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 DACC 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 DACC 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 DACC. 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;
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by Norwest Bank and, assuming valid
execution and delivery thereof by DACC, Norwest Mortgage, 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 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) DACC'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 DACC 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 DACC 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 DACC,
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 DACC
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.
(l) DACC 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 DACC in writing, or by telephone or telegraph
confirmed in writing.
7. INDEMNIFICATION AND CONTRIBUTION. (a) DACC 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 DACC
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 DACC 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 DACC
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
DACC to the Underwriter which was not corrected by information subsequently
supplied by DACC 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 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 DACC 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 DACC has previously
furnished copies thereof to the Underwriter. This indemnity agreement will be in
addition to any liability which DACC may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless DACC, its
officers who signed the Registration Statement or any amendment thereof, its
directors, and each person who controls DACC 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 DACC 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 DACC 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
DACC 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 DACC to the Underwriter which was not corrected by
information subsequently supplied by DACC 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
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 DACC on the one hand and the Underwriter on the other from the
offering of the Certificates and (ii) the relative fault of DACC 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 DACC 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 DACC 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
DACC 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 DACC 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 DACC or the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. DACC,
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 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 DACC under this Section 7 shall be in addition
to any liability which DACC 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 DACC who signed the Registration Statement or any amendment thereof,
to its directors, and to each person who controls DACC 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 DACC, to indemnify
and hold harmless the Underwriter against any failure by DACC 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) DACC 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 DACC 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
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.
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), DACC 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, DACC agrees and covenants to file the
Collateral Term Sheets delivered to it by the Underwriter within two business
days of delivery.
(iii) DACC agrees to file any information delivered to DACC 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) DACC agrees to file any Collateral Term Sheet delivered to DACC
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 DACC's obligation to file
Computational Materials and Structural Term Sheets pursuant to this Section 9,
that DACC shall have received a letter not later than 5:00 P.M. on the business
day prior to such filing from DACC's Independent Accountants, reflecting the
performance of procedures previously agreed to by DACC and otherwise in form and
substance satisfactory to DACC with respect to the structural, financial,
numerical or statistical information to be filed. DACC 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 DACC that it
will cause the Independent Accountants to provide such letter or shall require
DACC 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 DACC 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.
(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) DACC 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 DACC 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 DACC 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 DACC that the
Computational Materials, Structural Term Sheets and Collateral Term
Sheets to be furnished to DACC 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, DACC that any information produced by it and filed by DACC 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 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 DACC 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 DACC to the Underwriter which was not corrected by
information subsequently supplied by DACC 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 DACC 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 DACC 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 DACC 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 DACC 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
DACC, 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
DACC 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 DACC 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 DACC to the
Underwriter, the Underwriter shall be under no obligation to
prepare and deliver to DACC corrected Computational Materials or
Structural Term Sheets, as the case may be, unless and until
corrected information is supplied by DACC to the Underwriter and
such corrected information is supplied by DACC 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 DACC 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 DACC as set forth in Exhibit B hereto.
In addition, the Underwriter covenants with DACC 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
DACC 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 DACC against the other party to enforce
any of its rights set forth in this Section 9.
(g) The Underwriter covenants with DACC that it will make available to
DACC 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.
(h) The Underwriter covenants with DACC 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 DACC 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 DACC 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
DACC, 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,
DACC, 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 DACC) or termination by the Underwriter pursuant to Section 10
hereof, the Certificates are not delivered by or on behalf of DACC as provided
herein, DACC 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 DACC and Norwest Mortgage shall then
be under no further liability to the Underwriter with respect to the
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 DACC 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 DACC), the Underwriter will reimburse
DACC for all out-of-pocket expenses of DACC, including reasonable fees and
disbursements of its counsel, reasonably incurred by DACC in making preparations
for the issuance and delivery of the Certificates, but the Underwriter shall
then be under no further liability to DACC 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 DACC
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 DACC.
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 DACC 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 DACC, 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 DACC'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.
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 DACC, will be delivered to DACC at 0000 Xxx Xxxxxxx
Xxx, Xxxxxxxxx, Xxxxxxxx 00000; or if sent to Norwest Mortgage, will be
delivered to Norwest Mortgage at 000 Xxxxxxxxx 0xx Xxxxxx, Xxx Xxxxxx, Xxxx
00000.
* * *
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 DACC, Norwest Mortgage and the Underwriter.
Very truly yours,
DIRECTORS ASSET CONDUIT
CORPORATION
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:
Exhibit A
DIRECTORS ASSET CONDUIT CORPORATION
Home Equity Loan Asset-Backed Certificates
Terms Agreement
[Underwriter]
[Address]
Underwriting Agreement dated [ ].
Title of Certificates: Home Equity Loan Asset-Backed Certificates,
Series 199_, [Classes] (the "Offered
Certificates").
Subclasses of Certificates: Each of the Class __ Certificates and the
Class __ Certificates will consist of one
or more Subclasses with the prior consent
of DACC, which consent shall not be
unreasonably withheld. The Class __ and
Class __ Certificates will not be divided
into subclasses.
Aggregate Principal Amount
of the Offered Certificates: $__________ (Approximate)
Certificates Not Offered Hereby: [Classes]
Enhancement:
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 or adjustable interest rate,
conventional, monthly pay, fully
amortizing, one- to four-family,
residential first mortgage loans having
original stated terms to maturity of
approximately [ ] years.
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").
Sub-Servicing Fee (Monthly fee
payable to the Sub-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 __
Certificates will not be issued in
book-entry form, unless authorized by DACC.
Optional Termination: [ ].
Required Ratings: [Ratings]
Closing Date, Location and Time: ________ __, 199_; offices of Stroock &
Stroock & Xxxxx LLP, 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 The Closing Date.
Agreement:
Notwithstanding any other provision of the related Underwriting Agreement, the
certificate of DACC required under Section 6(b) of the Underwriting Agreement
may be signed by a vice president or an assistant vice president of DACC.
