EXHIBIT 1.1
NAMCO SECURITIES CORP.
$_________________ (Approximate)
Mortgage Pass-Through Certificates
Mortgage-Backed Notes
Series ____-___
UNDERWRITING AGREEMENT
----------------------
_________________ __, ____
[UNDERWRITER]
Ladies and Gentlemen:
NAMCO Securities Corp. (the "Depositor"), a Delaware
corporation, has authorized the issuance and sale of [Mortgage Pass-Through
Certificates] [Mortgage-Backed Notes], Series ____-__, [Insert Name of Classes].
Only the Offered Certificates are being purchased by the
Underwriters named in Schedule A hereto, and the Underwriters are purchasing,
severally, only the Offered Certificates set forth opposite their names in
Schedule A, except that the amounts purchased by the Underwriters may change in
accordance with Section 10 of this Agreement. [Underwriter] is acting as
representative of the several Underwriters and in such capacity is hereinafter
referred to as the "Representative."
The [Certificates/Notes] will be issued under [a pooling and
servicing agreement (the "Pooling and Servicing Agreement")/an Indenture (the
"Indenture")], to be dated as of ______ __, ____ among the Depositor as
depositor, [Master Servicer], as master servicer (in such capacity, the "Master
Servicer") and [Trustee], as the Trustee (in such capacity, the "Trustee").
Capitalized but undefined terms shall have the meanings set forth in the
[Pooling and Servicing Agreement/Indenture].
The [Certificates/Notes] will evidence [fractional undivided
interests in/debt obligations of] the Trust (the "Trust") formed pursuant to the
[Pooling and Servicing Agreement/Trust Agreement]. The assets of the Trust will
initially include, among other things, pools of mortgage loans, comprised of
fixed rate mortgage loans, adjustable rate mortgage loans in each case, having a
Cut-Off Date as of the close of business on ______ __, ____ (the "Initial
Mortgage Loans"), the Pre-Funding Accounts used to purchase additional mortgage
loans after the Closing Date under the Subsequent Mortgage Loan Purchase
Agreement (the "Subsequent Mortgage Loans"; together with the Initial Mortgage
Loans, the "Mortgage Loans"), Interest Coverage Accounts and such amounts as may
be held by the Trustee in any other accounts held by the Trustee for the Trust.
First and second deeds of trust or mortgages on one- to four-family residential
properties secure the Mortgage Loans. A form of the [Pooling and Servicing
Agreement/Trust Agreement] has been filed as an exhibit to the Registration
Statement.
The [Certificates/Notes] are more fully described in a
Registration Statement which the Depositor has furnished to the Underwriters.
[The Offered Certificates will be entitled to the benefits of
a financial guaranty insurance policy (the "Policy") issued by
____________________. The Depositor and the Seller will enter into an Insurance
Agreement, dated as of _________ __, ____ (the "Insurance Agreement"), among
_________, the Seller and the Depositor. The Depositor and the Seller will also
enter into an Indemnification Agreement, dated as of ______ __, ____ (the
"Indemnification Agreement"), among the Underwriters, the Depositor, the Seller
and ____, governing the liability of the several parties with respect to the
losses resulting from material misstatements or omissions contained in the
Prospectus Supplement.]
Pursuant to the Mortgage Loan Purchase Agreement, dated _____
__, ____ (the "Mortgage Loan Purchase Agreement"), between the Seller and the
Depositor, the Seller will transfer to the Depositor all of its right, title and
interest in and to the scheduled principal balances of the Initial Mortgage
Loans as of the Cut-off Date and interest due after the Cut-off Date and the
collateral securing each Mortgage Loan. Pursuant to the [Pooling and Servicing
Agreement/Indenture], the Depositor will transfer to the Trust all of its right,
title and interest in and to the scheduled principal balances of the Initial
Mortgage Loans as of the Cut-Off Date and interest due after the Cut-Off Date
and the collateral securing each Mortgage Loan.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor represents and warrants to, and agrees with the Underwriters that as
of the date hereof and as of the Closing Date:
(a) A Registration Statement on Form S-3 (No. 333-74623), has
(i) been prepared by the Depositor in conformity with the requirements
of the Securities Act of 1933, as amended (the "Securities Act") and
the rules and regulations (the "Rules and Regulations") of the United
States Securities and Exchange Commission (the "Commission")
thereunder, (ii) been filed with the Commission under the Securities
Act and (iii) become effective and is still effective as of the date
hereof under the Securities Act; Copies of such Registration Statement
have been delivered by the Depositor to the Underwriters. As used in
this Agreement, "Effective Time" means the date and the time as of
which such Registration Statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Registration
Statement" means such registration statement, at the Effective Time,
including any documents incorporated by reference therein at such time;
"Basic Prospectus" means such final prospectus dated _____ __, ____;
and "Prospectus Supplement" means the final prospectus supplement
relating to the Offered Certificates, to be filed with the Commission
pursuant to paragraphs (2), (3) or (5) of Rule 424(b) of the Rules and
Regulations. "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. Reference made herein to the Prospectus shall be
deemed to refer to and include any
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documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, as of the date of the Prospectus and any
reference to any amendment or supplement to the Prospectus shall be
deemed to refer to and include any document filed under the Securities
Exchange Act of 1934 (the "Exchange Act") after the date of the
Prospectus, and incorporated by reference in the Prospectus and any
reference to any amendment to the Registration Statement shall be
deemed to include any report of the Depositor filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Time that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or
suspending the use of the Prospectus or the effectiveness of the
Registration Statement and no proceedings for such purpose are pending
or, to the Depositor's knowledge, threatened by the Commission. There
are no contracts or documents of the Depositor which are required to be
filed as exhibits to the Registration Statement pursuant to the
Securities Act or the Rules and Regulations which have not been so
filed or incorporated by reference therein on or prior to the Effective
Date of the Registration Statement other than such documents or
materials, if any, as any Underwriter delivers to the Depositor
pursuant to Section 8(d) hereof for filing on Form 8-K. The conditions
for use of Form S-3, as set forth in the General Instructions thereto,
have been satisfied.
To the extent that any Underwriter has provided to the
Depositor Computational Materials that such Underwriter has provided to a
prospective investor, the Depositor will file or cause to be filed with the
Commission a report on Form 8-K containing such Computational Materials, as soon
as reasonably practicable after the date of this Agreement, but in any event,
not later than 11:00 a.m. New York time the date on which the Prospectus is made
available to the Underwriter and is filed with the Commission pursuant to Rule
424 of the Rules and Regulations.
(b) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, when they become effective or are filed
with the Commission, as the case may be, in all respects to the
requirements of the Securities Act and the Rules and Regulations. The
Registration Statement, as of the Effective Date thereof and of any
amendment thereto, did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus
as of its date, and as amended or supplemented as of the Closing Date
does not and will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided that no representation or warranty
is made as to (i) information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Depositor in
writing by any Underwriter through the Representative expressly for use
therein ("Underwriters' Information") or (ii) other than with respect
to any Pool Information or any information contained in Collateral Term
Sheet, Structural Term Sheet, Series Term Sheet or Computational
Materials (each as defined in Section 5(b) below) in each case to the
extent not included in the Prospectus.
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(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder; and any further documents
so filed and incorporated by reference in the Prospectus, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all materials respects to the requirements
of the Securities Act or the Exchange act, as applicable, and the rules
and regulations of the Commission thereunder.
(d) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business so requires such standing. The
Depositor has all power and authority necessary to own or hold its
properties, to conduct the business in which it is engaged and to enter
into and perform its obligations under this Agreement, the [Insurance
Agreement, the Indemnification Agreement, the] Mortgage Loan Purchase
Agreement, each Subsequent Mortgage Loan Purchase Agreement and the
[Pooling and Servicing Agreement/ Indenture/ Trust Agreement] (the
"Agreements") and to cause the [Certificates/Notes] to be issued.
(e) There are no actions, proceedings or investigations
pending with respect to which the Depositor has received service of
process before or threatened by any court, administrative agency or
other tribunal to which the Depositor is a party or of which any of its
properties is the subject (a) which if determined adversely to the
Depositor would have a material adverse effect on the business or
financial condition of the Depositor, (b) asserting the invalidity of
any of the Agreements or the Certificates, (c) seeking to prevent the
issuance of the [Certificates/Notes] or the consummation by the
Depositor of any of the transactions contemplated by any of the
Agreements or (d) which might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity
or enforceability of any of the Agreements or the [Certificates/Notes].
(f) This Agreement has been, and the other Agreements when
executed and delivered as contemplated hereby and thereby will have
been, duly authorized, executed and delivered by the Depositor, and
this Agreement constitutes, and the other Agreements when executed and
delivered as contemplated herein will constitute, legal, valid and
binding instruments enforceable against the Depositor in accordance
with their respective terms, subject as to enforceability to (x)
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally, (y) general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of
indemnity under any of the Agreements, limitations of public policy
under applicable securities laws.
(g) The execution, delivery and performance of the Agreements
by the Depositor and the consummation of the transactions contemplated
hereby and thereby, and the issuance and delivery of the
[Certificates/Notes] do not and will not conflict with or result in a
breach
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or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Depositor is a party, by
which the Depositor is bound or to which any of the properties or
assets of the Depositor or any of its subsidiaries is subject, which
breach or violation would have a material adverse effect on the
business, operations or financial condition of the Depositor or its
ability to perform its obligations under any of the Agreements, nor
will such actions result in any violation of the provisions of the
articles of incorporation or by-laws of the Depositor or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Depositor or any of its properties or
assets, which breach or violation would have a material adverse effect
on the business, operations or financial condition of the Depositor or
its ability to perform its obligations under any of the Agreements.
(h) The direction by the Depositor to the Trustee to execute,
authenticate, issue and deliver the [Certificates/Notes] has been duly
authorized by the Depositor, and, assuming the Trustee has been duly
authorized to undertake such actions, when executed, authenticated,
issued and delivered by the Trustee, in accordance with the [Pooling
and Servicing Agreement/Indenture], the [Certificates/Notes] will be
validly issued and outstanding and the holders of the
[Certificates/Notes] will be entitled to the rights and benefits of the
[Certificates/Notes] as provided by the [Pooling and Servicing
Agreement/Indenture].
(i) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body of
the United States is required for the issuance of the
[Certificates/Notes] and the sale of the Offered [Certificates/Notes]
to the Underwriters, or the consummation by the Depositor of the other
transactions contemplated by the Agreements except such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Offered [Certificates/Notes] by the
Underwriters or as have been obtained.
(j) At the time of the execution and delivery of the [Pooling
and Servicing Agreement/Indenture], the Depositor will: (i) have
equitable title to the interest in the Initial Mortgage Loans conveyed
by the Seller, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively,
"Liens"); (ii) not have assigned to any person (other than the Trustee)
any of its right, title or interest in the Initial Mortgage Loans; and
(iii) have the power and authority to sell its interest in the Initial
Mortgage Loans to the Trustee and to sell the Offered
[Certificates/Notes] to the Underwriters. At each Subsequent Transfer
Date, the Depositor will: (i) have equitable title to the interest in
the Subsequent Mortgage Loans conveyed by the Seller on such Subsequent
Transfer Date, free and clear of any Liens; (ii) not have assigned to
any person (other than the Trustee) any of its right, title or interest
in such Subsequent Mortgage Loans; and (iii) have the power and
authority to sell its interest in such Subsequent Mortgage Loans to the
Trustee. Upon execution and delivery of the [Pooling and Servicing
Agreement/Indenture] by the Trustee, the Trustee will have acquired
beneficial ownership of all of the Depositor's
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right, title and interest in and to the Initial Mortgage Loans. On each
Subsequent Transfer Date, the Trustee will have acquired beneficial
ownership of all of the Depositor's right, title and interest in and to
the Subsequent Mortgage Loans conveyed by Seller on such Subsequent
Transfer Date. Upon delivery to the Underwriters of the Offered
[Certificates/Notes], the Underwriters will have good title to the
Offered [Certificates/Notes] free of any Liens.
(k) As of the related Cut-off Date or Subsequent Transfer
Date, as applicable, each of the Mortgage Loans will meet the
eligibility criteria described in the Prospectus and will conform to
the descriptions thereof contained in the Prospectus.
(l) Neither the Depositor nor the Trust is an "investment
company" within the meaning of such term under the Investment Company
Act of 1940 (the "1940 Act") and the
rules and regulations of the Commission thereunder.
(m) At the Closing Date, the Offered [Certificates/Notes] and
the [Pooling and Servicing Agreement/Indenture] will conform in all
material respects to the descriptions thereof contained in the
Prospectus.
(n) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the Agreements
and the [Certificates/Notes] have been
paid or will be paid at or prior to the Closing Date.
(o) Since the respective dates as of which information is
given in the Prospectus, there has not been any material adverse change
in the general affairs, management, financial condition, or results of
operations of the Depositor, otherwise than as set forth or
contemplated in the Prospectus as supplemented or amended as of the
Closing Date.
(p) Any certificate signed by an officer of the Depositor and
delivered to the Representative or counsel for the Representative in
connection with an offering of the Offered [Certificates/Notes] shall
be deemed, and shall state that it is, a representation and warranty as
to the matters covered thereby to each person to whom the
representations and warranties in this Section 1 are made.
SECTION 2. PURCHASE AND SALE. The commitment of the Underwriters to
purchase the Offered [Certificates/Notes] pursuant to this Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth. The Depositor agrees to instruct the Trustee to issue the
[Certificates/Notes] and agrees to sell to the Underwriters, and the
Underwriters agree (except as provided in Sections 10 and 11 hereof) severally
and not jointly to purchase from the Depositor, the aggregate initial principal
amounts or percentage interests of the Offered [Certificates/Notes] of each
Class, as set forth opposite their names on Schedule A, at the purchase price or
prices set forth on Schedule A.
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SECTION 3. DELIVERY AND PAYMENT. Delivery of and payment for the
Offered [Certificates/Notes] shall be made at the offices of Xxxxxxx Xxxxxxxx &
Xxxx, Two World Trade Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as shall be agreed upon by the Representative and the Depositor at
10:00 A.M. New York City time on _____ __, ____ or at such other time or date as
shall be agreed upon in writing by the Representative and the Depositor (such
date being referred to as the "Closing Date"). Payment shall be made to the
Depositor by wire transfer of same day funds payable to the account of the
Depositor. Delivery of the Offered [Certificates/Notes] shall be made to the
Representative for the accounts of the Underwriters against payment of the
purchase price thereof. The Offered [Certificates/Notes] so delivered will be
initially represented by one or more [certificates/notes] registered in the name
of Cede & Co., the nominee of The Depository Trust Company ("DTC"). The
interests of the beneficial owners of the Offered [Certificates/Notes] will be
represented by book entries on the records of DTC and participating members
thereof. Definitive [Certificates/Notes] will be available only under the
limited circumstances specified in the [Pooling and Servicing
Agreement/Indenture].
SECTION 4. OFFERING BY THE UNDERWRITERS. It is understood that, subject
to the terms and conditions hereof, the Underwriters propose to offer the
Offered [Certificates/Notes] for sale to the public as set forth in the
Prospectus.
SECTION 5. AGREEMENTS.
(a) The Depositor agrees as follows:
(i) To prepare the Prospectus in a form approved by the
Underwriters and to file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than the
Commission's close of business on the second business day
following the availability of the Prospectus to the
Underwriters; to make no further amendment or any
supplement to the Registration Statement or to the
Prospectus prior to the Closing Date except as permitted
herein; to advise the Underwriters, promptly after it
receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes
effective prior to the termination of the offering of the
Offered [Certificates/Notes] or any supplement to the
Prospectus or any amended Prospectus has been filed and to
furnish the Underwriters or their counsel with copies
thereof without charge; to file promptly all reports and
any definitive proxy or information statements required to
be filed by the Depositor with the Commission pursuant to
Section 13(a), 13(c), 14 or l5(d) 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 Offered
[Certificates/Notes]; to promptly advise the Underwriters
of its receipt of notice of the issuance by the Commission
of any stop order or the institution of or, to the
knowledge of the Depositor, the threatening of any
proceeding for such purpose, or of: (i) any order
preventing or suspending the use of the Prospectus; (ii)
the suspension of the qualification of the Offered
[Certificates/Notes] for offering or sale in any
jurisdiction; (iii) the initiation
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of or threat of any proceeding for any such purpose; or
(iv) any request by the Commission for the amending or
supplementing of the Registration Statement or the
Prospectus or for additional information. In the event of
the issuance of any stop order or of any order preventing
or suspending the use of the Prospectus or suspending any
such qualification, the Depositor promptly shall use its
best efforts to obtain the withdrawal of such order by the
Commission.
(ii) To furnish promptly to the Underwriters and to counsel for
the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and of
each amendment thereto filed with the Commission, including
all consents and exhibits filed therewith.
(iii) To deliver promptly to the Underwriters without charge such
number of the following documents as the Underwriters shall
reasonably request: (i) conformed copies of the
Registration Statement as originally filed with the
Commission and each amendment thereto (in each case
including exhibits); (ii) the Prospectus and any amended or
supplemented Prospectus; and (iii) any document
incorporated by reference in the Prospectus (including
exhibits thereto). If the delivery of a prospectus is
required at any time prior to the expiration of nine months
after the Closing Date in connection with the offering or
sale of the Offered [Certificates/Notes], and if at such
time any events shall have occurred 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 any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement
the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in
order to comply with the Securities Act or the Exchange
Act, the Depositor shall notify the Underwriters and, upon
any Underwriters' request, shall file such document and
prepare and furnish without charge to the Underwriters and
to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which
corrects such statement or omission or effects such
compliance, and in case the Underwriters are required to
deliver a Prospectus in connection with sales of any of the
Offered [Certificates/Notes] at any time nine months or
more after the Effective Time, upon the request of the
Underwriters but at their expense, the Depositor shall
prepare and deliver to the Underwriters as many copies as
the Underwriters may reasonably request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of
the Securities Act.
(iv) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement
to the Prospectus that may,
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in the judgment of the Depositor or the Underwriters, be
required by the Securities Act or requested by the
Commission. Neither the Underwriters' consent to nor their
distribution of any amendment or supplement shall
constitute a waiver of any of the conditions set forth in
Section 6.
(v) To furnish the Underwriters and counsel for the
Underwriters, prior to filing with the Commission, and to
obtain the consent of the Underwriters for the filing of
the following documents relating to the
[Certificates/Notes]: (i) any Post-Effective Amendment to
the Registration Statement or supplement to the Prospectus,
or document incorporated by reference in the Prospectus, or
(ii) Prospectus pursuant to Rule 424 of the Rules and
Regulations.
(vi) To use commercially reasonable efforts, in cooperation with
the Underwriters, to qualify the Offered
[Certificates/Notes] for offering and sale under the
applicable securities laws of such states and other
jurisdictions of the United States or elsewhere as the
Underwriters may reasonably designate, and maintain or
cause to be maintained such qualifications in effect for as
long as may be required for the distribution of the Offered
[Certificates/Notes]. The Depositor will file or cause the
filing of such statements and reports as may be required by
the laws of each jurisdiction in which the Offered
[Certificates/Notes] have been so qualified; provided,
however, that the Depositor shall not be required to
qualify to do business in any jurisdiction where it is not
now so qualified or to take any action which would subject
it to general or unlimited service of process in any
jurisdiction where it is now so subject.
(vii) Unless the Underwriters shall otherwise have given their
written consent, no collateralized mortgage obligations or
other similar securities representing interests in or
secured by other mortgage-related assets originated or
owned by the Seller shall be publicly offered or sold, nor
shall the Seller enter into any contractual arrangements
that contemplate the public offering or sale of such
securities, until the earlier to occur of the termination
of the syndicate or the Closing Date.
(viii) So long as the Offered [Certificates/Notes] shall be
outstanding the Depositor shall cause the Trustee, pursuant
to the [Pooling and Servicing Agreement/Indenture], to
deliver to the Underwriters as soon as such statements are
furnished to the Trustee: (i) the annual statement as to
compliance delivered to the Trustee pursuant to Section __
of the [Pooling and Servicing Agreement/Indenture]; (ii)
the annual statement of a firm of independent public
accountants furnished to the Trustee pursuant to Section __
of the [Pooling and Servicing Agreement/Indenture]; (iii)
the monthly servicing report furnished to the Trustee
pursuant to Section __ of the [Pooling and Servicing
Agreement/Indenture]; and (iv) the monthly reports
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furnished to the Certificateholders pursuant to Section __
of the [Pooling and Servicing Agreement/Indenture].
(b) Each Underwriter represents, warrants, covenants and
agrees with the Depositor that:
(i) It either (A) has not provided any potential investor with
a Collateral Term Sheet (that is required to be filed with
the Commission within two business days of first use under
the terms of the Public Securities Association Letter as
described below), or (B) has, prior to its first delivery
of such Collateral Term Sheet to a potential investor,
delivered such Collateral Term Sheet (in hard copy) to the
Depositor or its counsel and has substantially
contemporaneously with its first delivery of such
Collateral Term Sheet to a potential investor, delivered
such Collateral Term Sheet to the Depositor or its counsel.
(ii) It either (A) has not provided any potential investor with
a Structural Term Sheet, Series Term Sheets or
Computational Materials, or (B) has, prior to its first
delivery of any such Structural Term Sheet, Series Term
Sheets or Computational Materials to a potential investor,
delivered such Structural Term Sheet, Series Term Sheets or
Computational Materials to the Depositor or its counsel and
has promptly provided any such Structural Term Sheet,
Series Term Sheets or Computational Materials to the
Depositor or its counsel.
(iii) Each Collateral Term Sheet bears a legend indicating that
the information contained therein will be superseded by the
description of the collateral contained in the Prospectus
Supplement and, except in the case of the initial
Collateral Term Sheet, that such information supersedes the
information in all prior Collateral Term Sheets.
(iv) Each Structural Term Sheet, Series Term Sheet and all
Computational Materials bear a legend substantially in the
form shown on [Exhibit __ hereto] which has been agreed to
by the Underwriters and the Depositor.
(v) It (at its own expense) agrees to obtain and provide to the
Depositor and the Seller one or more accountants' letters
in form and substance reasonably satisfactory to the
Underwriter, the Depositor and the Seller relating to the
Collateral Term Sheets, Structural Term Sheets, Series Term
Sheets and Computational Materials, which accountants'
letters shall be addressed to the Depositor and the Seller.
(vi) It has not, and will not, without the prior written consent
of the Depositor, provide any Collateral Term Sheets,
Structural Term Sheets, Series Term
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Sheets or Computational Materials to any investor after the
date of this Agreement and prior to the delivery of the
Prospectus to such investor.
For purposes of this Agreement, Series Term Sheets, Collateral
Term Sheets and Structural Term Sheets shall have the respective meanings
assigned to them (a) in the case of Series Term Sheets, in the no-action letter
addressed to Greenwood Trust Company, Discover Card Master Trust I dated April
5, 1996, and (b) in the case of Collateral Term Sheets and Structural Term
Sheets, in the February 13, 1995 letter of Cleary, Gottlieb, Xxxxx & Xxxxxxxx on
behalf of the Public Securities Association (which letter, and the SEC staff's
response thereto, are publicly available February 17, 1995). The term
"Collateral Term Sheet" as used herein includes any subsequent Collateral Term
Sheet that reflects a substantive change in the information presented.
Computational Materials has the meaning assigned to it in the no-action letter
dated May 20, 1994 issued by the Division of Corporation Finance of the
Commission to Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co.
Incorporated, and Xxxxxx Structured Asset Corporation, the no-action letter
dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association and the no-action letter of
February 17, 1995 issued by the Commission to the Public Securities Association.
SECTION 6. CONDITIONS TO THE UNDERWRITERS' OBLIGATION. The obligations
of the Underwriters hereunder to purchase the Offered [Certificates/Notes]
pursuant to this Agreement are subject to the following conditions as of the
Closing Date:
(a) Each of the obligations of the Depositor required to be
performed by it on or prior to the Closing Date pursuant to the terms
of the Agreements shall have been duly performed and complied with and
all of the representations and warranties of the Depositor under any of
the Agreements shall be true and correct as of the Closing Date and no
event shall have occurred which, with notice or the passage of time,
would constitute a default under any of the Agreements, and the
Representative shall have received certificates to the effect of the
foregoing, each signed by an authorized officer of the Depositor.
(b) Prior to the Closing Date, (i) the Depositor shall have
received confirmation of the effectiveness of the Registration
Statement and (ii) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Depositor, shall be contemplated by the Commission. Any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with.
(c) The Representative shall have received letters dated on or
before the date on which the Prospectus Supplement is dated and
printed, in form and substance acceptable to the Underwriters and their
counsel, prepared by [Accountant] (a) regarding certain numerical
information contained or incorporated by reference in the Prospectus
Supplement and (b) relating to certain agreed upon procedures as
requested by the Underwriters relating to the Initial Mortgage Loans.
-11-
(d) The Mortgage Loans will be acceptable to the [Insurer],
[Rating Agencies] and Standard & Poor's, in their sole discretion.
(e) The Representative shall have received the following
additional closing documents, in form and substance satisfactory to the
Representative and its counsel:
(i) the Agreements and all documents required thereunder,
duly executed and delivered by each of the parties
thereto other than the Underwriters and their
affiliates;
(ii) an officer's certificate of an officer of the Seller
and an officer's certificate of an officer of the
Depositor, in each case dated as of the Closing Date
and reasonably satisfactory in form and substance to
the Underwriters and counsel for the Underwriters
with resolutions of the applicable board of directors
and a copy of the charter and by-laws of the Seller
or the Depositor, as applicable;
(iii) an opinion of in-house counsel to the Seller and the
Depositor, reasonably satisfactory in form and
substance to the Underwriters and counsel for the
Underwriters, dated the Closing Date, as to various
matters;
(iv) an opinion of counsel to the Seller and the
Depositor, dated the Closing Date, reasonably
satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, as to
various matters;
(v) an opinion of counsel to the Underwriters, dated the
Closing Date, reasonably satisfactory in form and
substance to the Underwriters as to various matters;
(vi) such opinions of counsel to the Seller and the
Depositor, in forms reasonably satisfactory to the
Underwriters, their counsel, [Rating Agencies] as to
such additional matters not opined to in the opinion
delivered pursuant to clause (iv) above as shall be
required for the assignment of a rating to the
Offered [Certificates/Notes] of [Applicable
Investement Grade Rating for each Class];
(vii) a letter from [Rating Agency] that it has assigned
[Applicable Investment Grade Rating for the Class] to
the Offered [Certificates/Notes];
(viii) a letter from [Rating Agency] that it has assigned
[Applicable Investment Grade Rating for the Class] to
the Offered [Certificates/Notes];
(ix) an opinion of counsel to the Trustee, dated the
Closing Date, in form and substance reasonably
satisfactory to the Underwriters, their counsel, [and
Rating Agencies];
-12-
(x) an officer's certificate of an officer of the
Trustee, dated as of the Closing Date, reasonably
satisfactory in form and substance to the
Underwriters and counsel for the Underwriters;
(xi) [an opinion of counsel to the Insurer, dated the
Closing Date, in form and substance reasonably
satisfactory to the Underwriters, their counsel, [and
Rating Agencies]].
[The Policy shall have been duly executed, delivered and issued with
respect to the Offered [Certificates/Notes] and shall conform in all material
respects to the description thereof in the Prospectus Supplement as of the date
thereof.]
(f) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall
be reasonably satisfactory in form and substance to the Representative
and its counsel.
(g) The Seller and the Depositor shall have furnished the
Representative with such other certificates of its officers or others
and such other documents or opinions as the Representative or its
counsel may reasonably request.
(h) Subsequent to the execution and delivery of this Agreement
none of the following shall have occurred: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange
or the over-the-counter market shall have been suspended or minimum
prices shall have been established on either of such exchanges or such
market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction; (ii) a banking
moratorium shall have been declared by Federal or New York state
authorities; (iii) the United States shall have become engaged in
material hostilities, there shall have been an escalation of such
hostilities involving the United States or there shall have been a
declaration of war by the United States; or (iv) there shall have
occurred such a material adverse change in general economic, political
or financial conditions (or the effect of international conditions on
the financial markets of the United States shall be such) which is
material and adverse, and in the case of any of the events specified in
clauses (i), through (iv), such event makes it in the reasonable
judgment of the Representative, impractical to market the
[Certificates/Notes].
(i) If any condition, specified in this Section 6 shall have
not been fulfilled when and as required to be fulfilled, this Agreement
may be terminated by the Underwriters by notice to the Depositor at any
time at or prior to the Closing Date, and such termination shall be
without liability of any party to any other party except as provided in
Sections 7 and 8.
SECTION 7. PAYMENT OF EXPENSES. The Depositor agrees to pay:
(a) (i) the costs incident to the authorization, issuance,
sale and delivery of the [Certificates/Notes] and any taxes payable in
connection therewith; (ii) the costs incident to
-13-
the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (iii)
the costs of distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any preliminary
prospectus, the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein, all as
provided in this Agreement; (iv) the costs of reproducing and
distributing this Agreement; (v) any fees charged by securities rating
services for rating the Offered [Certificates/Notes]; (vi) the cost of
accountants' comfort letters relating to the Prospectus; and (vii) all
other costs and expenses incidental to the performance of the
obligations of the Depositor and the Seller (including costs and
expenses of counsel to the Depositor and the Seller); provided that,
except as provided in this Section 7, the Underwriters shall pay their
own costs and expenses, including the costs and expenses of their
counsel, any transfer taxes on the Offered [Certificates/Notes] which
they may sell and the expenses of advertising any offering of the
Offered [Certificates/Notes] made by the Underwriters, and the
Underwriters shall pay the cost of any accountants' comfort letters
relating to any Computational Materials (as defined herein).
SECTION 8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Depositor indemnifies and holds harmless each
Underwriter, each Underwriter's respective officers and directors and
each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, as
follows:
(i) against any and all losses, claims, expenses, damages
or liabilities, joint or several, to which such
Underwriter or such controlling person may become
subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or
liabilities (or actions in respect thereof including,
but not limited to, any loss, claim, expense, damage
or liability related to purchases and sales of the
Offered [Certificates/Notes]) arise out of or are
based upon any untrue statement or alleged untrue
statement of any material fact contained in the
Registration Statement, the Prospectus, or any
amendment 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 made
therein not misleading; and will reimburse each
Underwriter and each such controlling person for any
legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection
with investigating or defending any such loss, claim,
damage, liability or action as such expenses are
incurred; provided, however, that the Depositor 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 an untrue statement or omission, or
alleged untrue statement or omission, made in any of
such documents (x) in reliance upon and in conformity
with any Underwriters' Information or (y) in any
Collateral Term Sheet, Structural Term Sheet, Series
Term Sheet or Computational Materials, except in the
case of this
-14-
clause (y) to the extent that any untrue statement or
alleged untrue statement therein results (or is
alleged to have resulted) from an error or material
omission in the information concerning the
characteristics of the Mortgage Loans furnished by
the Seller to the Underwriters for use in the
preparation of any Collateral Term Sheet, Structural
Term Sheet, Series Term Sheet and/or Computational
Materials (any such information, the "Pool
Information"), which error was not superseded or
corrected by the delivery to the Underwriters of
corrected written or electronic information, or for
which the Seller or the Depositor provided written
notice of such error to the Underwriters prior to the
confirmation of the sale of the applicable
[Certificates/Notes] (any such uncorrected Pool
Information, a "Pool Error").
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, to the extent of the
aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected
with the written consent of the Depositor; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by any such
Underwriter), reasonably incurred in investigating,
preparing or defending against any litigation, or
investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not
paid under clause (i) or clause (ii) above.
This indemnity agreement will be in addition to any liability which the
Depositor may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless each of the Depositor, each of its
directors, each of its officers who have signed the Registration
Statement and each person, if any, who controls the Depositor within
the meaning of Section 15 the Securities Act or Section 20 the Exchange
Act, against any and all losses, claims, expenses, damages or
liabilities to which the Depositor or any such director, officer or
controlling person may become subject, under the Securities Act 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 any material fact contained in
(i) Derived Information provided by such Underwriter and (ii) the
Registration Statement, the Prospectus or any amendment or supplement
thereto, or arise out of, or are based upon, the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements made therein not
misleading, but with respect to clause (b)(ii) above, only to the
extent that such untrue
-15-
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with any Underwriters'
Information; and will reimburse any legal or other expenses reasonably
incurred by the Depositor or any such director, officer or controlling
person in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action described
therein, such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under this Section 8, notify
the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve the indemnifying
party from any liability that it may have to any indemnified party
otherwise than under this Agreement. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may wish to do so,
jointly with any other indemnifying party similarly notified, 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 notice from the
indemnifying party to such indemnified party under this Section 8, such
indemnifying party shall not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been
a party and in respect of which indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action.
(d) If the indemnification provided for in Section 8(a) or
8(b)(ii) 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 in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Depositor
on the one hand and the Underwriters on the other from the offering of
the Offered [Certificates/Notes] or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Depositor on the
one hand and the Underwriters on the other in connection with the
statements or omissions which resulted
-16-
in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. If the indemnification provided for
in Section 8(b)(i) is unavailable or insufficient to hold harmless the
indemnified party under Section 8(b)(i), 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 in Section (b)(i) in such proportion as appropriate to
reflect the relative fault of the Depositor on one hand and the
Underwriters 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. The relative
benefits received by the Depositor on the one hand and the Underwriters
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 Depositor bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault 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 relates to information supplied by the Depositor
or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to above
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), no Underwriter shall be required to
contribute any amount in excess of underwriting discounts and
commissions received by such Underwriter. 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. The Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) For purposes hereof, as to each Underwriter, the term
"Derived Information" means such information, if any, in the Series
Term Sheets, Collateral Term Sheets, Structural Term Sheets and/or
Computational Materials that is not contained in either (i) the
Prospectus taking into account information incorporated therein by
reference (other than information incorporated by reference from the
Series Term Sheets, Collateral Term Sheets, Structural Term Sheets
and/or Computational Materials) or (ii) any Pool Information, except to
the extent that any omission or alleged omission in Derived Information
results from a Pool Error.
(f) Each Underwriter agrees to deliver to the Depositor any
Collateral Term Sheets, Structural Term Sheets, Computational Materials
and Series Term Sheets which it has prepared in connection with the
Offered [Certificates/Notes] prior to the dissemination
of such materials to any potential investor.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Depositor or the
Seller submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the Underwriters
or controlling persons thereof, or by or on behalf of the Depositor or the
Seller, and shall survive delivery of any Offered [Certificates/Notes] to the
Underwriters.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters participating in the public offering of the Offered
[Certificates/Notes] shall fail at the Closing Date to purchase the Offered
[Certificates/Notes] which it is (or they are) obligated to purchase hereunder
(the "Defaulted [Certificates/Notes]"), then the non-defaulting Underwriters
shall
-17-
have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted [Certificates/Notes] in
such amounts as may be agreed upon and upon the terms herein set forth. If,
however, the Underwriters have not completed such arrangements within such
24-hour period, then
(a) if the aggregate principal amount of Defaulted
[Certificates/Notes] does not exceed 10% of the aggregate principal
amount of the Offered [Certificates/Notes] to be purchased pursuant to
this Agreement, the non-defaulting Underwriters named in this Agreement
shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all such non- defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted
[Certificates/Notes] exceeds 10% of the aggregate principal amount of
the Offered [Certificates/Notes] to be purchased pursuant to this
Agreement, this Agreement shall terminate, without any liability on the
part of any non-defaulting Underwriters.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from the liability with respect to any default of such
Underwriter under this Agreement.
In the event of a default by any Underwriter as set forth in
this Section 10, each of the Underwriters and the Depositor shall have the right
to postpone the Closing Date for a period not exceeding five Business Days in
order that any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements may be effected.
SECTION 11. TERMINATION OF AGREEMENT. The Underwriters may terminate
this Agreement immediately upon notice to the Depositor, at any time at or prior
to the Closing Date if the events set forth in Section 6(i) of this Agreement
shall occur and be continuing, or if any other closing condition set forth in
Section 6 shall not have been fulfilled when required to be fulfilled. In the
event of any such termination, the provisions of Section 7, the indemnity and
contribution agreements set forth in Section 8, and the provisions of Sections
9, 14 and 16 shall remain in effect.
SECTION 12. NOTICES. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent to the
Representative by mail, telex or facsimile transmission to
[Underwriter][Address], Facsimile _____________, Attention: ______
___________________;
(b) if to the Depositor, shall be delivered or sent by mail,
telex or facsimile transmission to care of NAMCO Securities Corp., 0000
Xxxxxxxx Xxxxxxxx Xxxxxxxx, Xxxxx 000, Xxxxx, XX 00000, Facsimile
_____________, Attention: ____________; and
-18-
(c) if to the Seller, shall be delivered or sent by mail,
telex or facsimile transmission to care of [Seller][Address], Facsimile
_______________, Attention: ___________________________.
SECTION 13. PERSONS ENTITLED TO THE BENEFIT OF THIS AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Seller and the Depositor, and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that the representations, warranties, indemnities and agreements
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any of the Underwriters within the
meaning of Section 15 of the Securities Act, and for the benefit of each
Underwriter's respective officers and directors and for the benefit of directors
of the Depositor, officers of the Depositor who have signed the Registration
Statement and any person controlling the Depositor within the meaning of Section
15 of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
13, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
SECTION 14. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the
[Certificates/Notes] and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
SECTION 15. DEFINITION OF THE TERM "BUSINESS DAY". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
SECTION 16. GOVERNING LAW: SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the principles of
conflicts of law thereof.
The parties hereto hereby submit to the jurisdiction of the
United States District Court for the Southern District of New York and any court
in the State of New York located in the City and County of New York, and
appellate court from any thereof, in any action, suit or proceeding brought
against it or in connection with this Agreement or any of the related documents
or the transactions contemplated hereunder or for recognition or enforcement of
any judgment, and the parties hereto hereby agree that all claims in respect of
any such action or proceeding may be heard or determined in New York State court
or, to the extent permitted by law, in such federal court.
The parties hereto hereby irrevocably waive, to the fullest
extent permitted by law, any and all rights to trial by jury in any legal
proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby.
SECTION 17. COUNTERPARTS. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
-19-
SECTION 18. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
SECTION 19. [OBLIGATIONS OF THE SELLER. The Seller agrees with the
Underwriters, for the sole and exclusive benefit of each such Underwriter, each
such Underwriter's officers and directors and each person controlling such
Underwriter within the meaning of the Securities Act, and not for the benefit of
any assignee thereof or any other person or persons dealing with such
Underwriter as follows: in consideration of and as an inducement to their
agreement to purchase the Offered [Certificates/Notes] from the Depositor, to
indemnify and hold harmless each Underwriter against any failure by the
Depositor to perform its obligations to the Underwriters hereunder, including,
without limitation, any failure by the Depositor to honor any obligation to any
Underwriter pursuant to Section 8 hereof. In the case of any claim against the
Seller by any Underwriter, any officer or director of any Underwriter or any
person controlling any Underwriter, it shall not be necessary for such claimant
to first pursue any remedy from or exhaust any procedures against the Depositor.
]
-20-
If the foregoing correctly sets forth the agreement between
the Depositor and the Underwriters, please indicate your acceptance in the space
provided for the purpose below.
Very truly yours,
NAMCO SECURITIES CORP.
By:_____________________________________
Name:
Title:
[SOLELY WITH RESPECT TO SECTION 19
[SELLER]
By:_____________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
[UNDERWRITER]
Acting on its own behalf and as Representative
of the Several Underwriters referred to in
the foregoing Agreement
By:_____________________________________
Name:
Title:
SCHEDULE A
Offered [Certificates/Notes]
Underwriting
Underwriters Principal Amount Discount
------------ ---------------- --------
$ %
$ %
$ %
