NOMURA ASSET ACCEPTANCE CORPORATION
Mortgage Backed Securities
UNDERWRITING AGREEMENT
Dated _____________
NOMURA SECURITIES INTERNATIONAL, INC.
Acting on behalf of itself and, if
applicable, as the Representative of the
several Underwriters named in Schedule I
to the Terms Agreement (in either such
capacity sometimes herein the
"Representative"
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. INTRODUCTORY.
Nomura Asset Acceptance Corporation, a Delaware corporation (the
"DEPOSITOR"), proposes, subject to the terms and conditions stated herein, to
sell its Mortgage Backed Notes (the "NOTES") and Mortgage Backed Certificates
(the "CERTIFICATES"), and together with the Notes, the "SECURITIES") from time
to time in one or more series (each, a "SERIES"). Each Series, which may include
one or more classes of Notes and/or one or more classes of Certificates, will be
issued by a trust formed with respect to such Series (each, a "TRUST"). Each
Series of Certificates will represent indebtedness in the related Trust. Each
Series of Notes will represent indebtedness of the related Trust. The assets of
the Trust (the "TRUST PROPERTY") may include, among other things, one or more
pools of various types of single family and/or multi-family mortgage loans (the
"MORTGAGE LOANS"), unsecured home improvement installment sales contracts and
installment loans, manufactured housing installment sale contracts or
installment loan agreements, beneficial interest therein, pass-through or
participation certificates issued or guaranteed by the Government National
Mortgage Association or Xxxxxx Xxx or the Federal Home Loan Mortgage
Corporation, letters of credit, insurance policies, guarantees, reserve funds or
other types of credit support, currency or interest rate exchange agreements and
other financial assets, and/or monies on deposit in one or more trust accounts.
The Securities are more fully described in the Registration Statement
(as defined herein). Each Series of Securities and any classes of Securities
(each, a "CLASS") within such Series may vary as to, among other things, number
and types of Classes, principal or notional amount, interest rate, the
percentage interest, if any, evidenced by each Class in the payments of
principal of and interest on, or with respect to, the Trust Property, priority
of payment among Classes, credit enhancement with respect to the related Trust
Property or Securities, the Classes of such Series subject to this Underwriting
Agreement, and any other terms contemplated by the Terms Agreement (as defined
herein) with respect to the Securities of such Series.
Each offering of the Securities to which this Underwriting Agreement
applies will be made pursuant to the Registration Statement through the
Representative or through an underwriting syndicate managed by the
Representative. Whenever the Depositor determines to form a Trust and to make
such an offering of Securities of a Series, it will enter into an appropriate
agreement (the "TERMS AGREEMENT"), a form of which is attached hereto as Exhibit
A, providing for the sale of certain classes of such Securities to, and the
purchase and offering thereof by, the Representative and such other
underwriters, if any, as have authorized the Representative to enter into such
Terms Agreement on their behalf (the "UNDERWRITERS," which term shall include
the Representative, whether acting alone in the sale of such Securities, in
which case any reference herein to the Representative shall be deemed to refer
to the Representative in its individual capacity as Underwriter of the
Securities, or as a member of an underwriting syndicate). Such Terms Agreement
shall specify the undivided interest, principal or notional amount of each Class
of the Securities to be issued, the Classes of Securities subject to this
Underwriting Agreement, the price at which such Classes of Securities are to be
purchased by the Underwriters from the Depositor and the initial public offering
price or prices or the method by which the price or prices at which such
Securities are to be sold will be determined.
Each such offering of Securities as to which Nomura Securities
International, Inc. is the sole underwriter or acts as the Representative of the
several Underwriters will be governed by this Underwriting Agreement, as
supplemented by the applicable Terms Agreement, and this Underwriting Agreement
and such Terms Agreement shall inure to the benefit of and be binding upon each
Underwriter participating in the offering of such Securities.
2. REPRESENTATIONS AND WARRANTIES.
The Depositor represents and warrants to, and agrees with, each
Underwriter, as of the date of the related Terms Agreement, that:
(a) The registration statement specified in the related Terms
Agreement, on Form S-3, including a prospectus, has been filed with the
Securities and Exchange Commission (the "COMMISSION") for the registration under
the Securities Act of 1933, as amended (the "ACT"), of the Securities, which
registration statement has been declared effective by the Commission. Such
registration statement, as amended to the date of the related Terms Agreement,
including any documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Act which were filed under the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), on or before the effective date of the
Registration Statement (as such date is defined in Rule 158(c) under the Act,
the "EFFECTIVE DATE"), is hereinafter called the "REGISTRATION STATEMENT," and
such prospectus, as such prospectus is supplemented by a prospectus supplement
relating to the Securities of the related Series, each in the form first filed
after the date of the related Terms Agreement pursuant to Rule 424(b) under the
Act, including any documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act which were filed under the Exchange Act on or
before the date of such prospectus supplement (such prospectus supplement,
including such incorporated documents, in the form first filed after the date of
the related Terms Agreement pursuant to Rule 424(b) is hereinafter called the
"PROSPECTUS SUPPLEMENT"), is hereinafter called the "PROSPECTUS" (except where
the context requires otherwise). Any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement, the
Prospectus or the Prospectus Supplement shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date or
the issue date of the Prospectus or Prospectus Supplement, as the case may be,
deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3
under the Act. The Depositor further proposes to prepare, after the final terms
of all classes of the Securities have been established, a Free Writing
Prospectus that will contain substantially all information that will appear in
the Prospectus Supplement, to the extent that such information is known at that
time and minus specific sections including the "Method of Distribution" section
(such Free Writing Prospectus, together with the Basic Prospectus, the
"Definitive Free Writing Prospectus").
(b) The related Registration Statement, at the time it became
effective, and the prospectus contained therein, and any amendments thereof and
supplements thereto filed prior to the date of the related Terms Agreement,
conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder (the "RULES AND Regulations"); on
the date of the related Terms Agreement and on the related Closing Date (as
defined herein), the Registration Statement, the Prospectus and the related
Prospectus Supplement, and any amendments thereof and supplements thereto, will
conform in all material respects to the requirements of the Act and the Rules
and Regulations; such Registration Statement, at the time it became effective,
did not contain any 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; such Prospectus and Prospectus Supplement, on the date
of any filing pursuant to Rule 424(b) and on the related Closing Date, will not
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 are made, not misleading; provided, however, that the Depositor
makes no representations or warranties as to the information contained in or
omitted from (A) such Registration Statement or such Prospectus (or any
supplement thereto) in reliance upon and in conformity with written information
furnished to the Depositor by or on behalf of the Underwriters specifically for
use in the preparation thereof as specified in the related Terms Agreement or
(B) any ABS Filing (as defined herein), or in any amendment thereof or
supplement thereto, incorporated by reference in such Registration Statement or
such Prospectus (or any amendment thereof or supplement thereto). In addition,
any Issuer Information (as defined below) contained in the Definitive Free
Writing Prospectus, as of the date thereof, did not contain an untrue statement
of a material fact and did not 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. The Effective Date shall mean the earlier of the
date on which the Definitive Free Writing Prospectus is first used and the time
of the first Contract of Sale to which such Prospectus Supplement relates. As
used herein, "Pool Information" means all loan level data with respect to the
characteristics of the Mortgage Loans and administrative and servicing fees, as
provided by or on behalf of the Depositor. The Depositor acknowledges that
except for any Computational Materials, the Underwriters' Information (as
defined in Exhibit C) and the decrement/yield tables constitute the only
information furnished in writing by you or on your behalf for use in connection
with the preparation of the Registration Statement or the Prospectus, and you
confirm that the Underwriters' Information is correct with respect to you and
the Securities such Underwriter underwrites.
(c) The Depositor is a corporation duly incorporated, validly existing
and in good standing under the laws of the state of its incorporation, and is
duly qualified to transact business and is in good standing in each jurisdiction
in the United States of America in which the conduct of its business or the
ownership of its property requires such qualification, with corporate power to
own, lease and operate its property and conduct its business as it is currently
conducted.
(d) The Depositor has, and will have, the requisite power to execute
and deliver this Underwriting Agreement, each pooling and servicing agreement,
to be entered into among the Depositor, the servicer specified therein (the
"SERVICER"), and the trustee specified therein (the "P&S TRUSTEE"); each trust
agreement, to be entered into between the Depositor and the trustee specified
therein (the "OWNER TRUSTEE"); each indenture, to be entered into among the
Trust and the trustee specified therein (the "INDENTURE TRUSTEE" and together
with the P&S Trustee and the Owner Trustee, the "TRUSTEE"); each transfer and
servicing agreement, transfer agreement or other document executed by the
Depositor in connection with the issuance and sale of the related Securities
(each of the above-referenced agreements, an "AGREEMENT"), and Terms Agreement
and to perform its obligations hereunder and thereunder.
(e) The Depositor is not aware of (i) any request by the Commission for
any further amendment of the Registration Statement or the Prospectus or for any
additional information, (ii) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, or (iii) any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(f) Each of the Agreements, Terms Agreements and this Underwriting
Agreement has been, or will be, duly and validly authorized, executed and
delivered by the Depositor, and each of the Agreements (as applicable), Terms
Agreements and this Underwriting Agreement constitutes, or will constitute, the
valid, legal and binding obligation of the Depositor, enforceable against the
Depositor in accordance with its terms.
(g) The Securities of each Series conform, or will conform as of the
related Closing Date, to the description thereof contained in the Registration
Statement, the Prospectus, and the related Prospectus Supplement; and the
Securities of such Series, on the related Closing Date, will have been duly and
validly authorized and, when such Securities are duly and validly executed,
issued and delivered in accordance with the related Agreement, and sold to the
Underwriters as provided herein and in the related Terms Agreement, will each be
validly issued and outstanding and entitled to the benefits of such Agreement.
(h) As of the related Closing Date, the representations and warranties
of the Depositor set forth in the related Agreement will be true and correct.
(i) Neither the execution and delivery by the Depositor of any
Agreement (as applicable), Terms Agreement or this Underwriting Agreement nor
the consummation by the Depositor of the transactions contemplated herein or
therein, nor the issuance of the Securities of a Series or the public offering
thereof as contemplated in the Prospectus and the applicable Prospectus
Supplement, will conflict in any material respect with or result in a material
breach of, or constitute a material default (with notice or passage of time or
both) under, or result in the imposition of any lien, pledge, charge,
encumbrance, adverse claim or other security interest of any other person
(collectively, "LIENS") upon any of the property or assets of the Depositor
(except as required or permitted pursuant thereto or hereto), pursuant to any
material mortgage, indenture, loan agreement, contract or other instrument to
which the Depositor is party or by which it is bound, nor will such action
result in any violation of any provisions of any applicable law, administrative
regulation or administrative or court decree, the certificate of incorporation
or by-laws of the Depositor. The Depositor is not in violation of its
certificate of incorporation, in default in any material respect in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease, trust agreement, transfer and servicing agreement or other instrument to
which it is a party or by which it may be bound, or to which any material
portion of its property or assets is subject.
(j) No legal or governmental proceedings are pending to which the
Depositor is a party or of which any property of the Depositor is the subject,
which if determined adversely to the Depositor would, individually or in the
aggregate, have a material adverse effect on the financial position,
shareholders' equity or results of operations of the Depositor; and to the best
of the Depositor's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(k) Since the date as of which information is given in the Registration
Statement, there has not been any material adverse change in the business or net
worth of the Depositor.
(l) Any taxes, fees and other governmental charges in connection with
the execution and delivery of this Underwriting Agreement, the related Terms
Agreement or the related Agreement and the execution, delivery and sale of the
Securities have been or will be paid at or prior to the related Closing Date.
(m) No consent, approval, authorization or order of, or registration,
filing or declaration with, any court or governmental agency or body is
required, or will be required, in connection with (i) the execution and delivery
by the Depositor of any Agreement (as applicable), Terms Agreement or this
Underwriting Agreement or the performance by the Depositor of any Agreement (as
applicable), Terms Agreement or this Underwriting Agreement or (ii) the offer,
sale or delivery of the Securities of any Series, except such as shall have been
obtained or made, as the case may be, or will be obtained or made, as the case
may be, prior to the applicable Closing Date, or will not materially adversely
affect the ability of the Depositor to perform its obligations under any
Agreement (as applicable), Terms Agreement or this Underwriting Agreement.
(n) Depositor possesses, and will possess, all material licenses,
certificates, authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business now
conducted by it and as described in the Prospectus and Prospectus Supplement,
except to the extent that the failure to have such licenses, certificates,
authorities or permits does not have a material adverse effect on the Securities
of any Series or the financial condition of the Depositor, and the Depositor has
not received, nor will have received as of each Closing Date, any notice of
proceedings relating to the revocation or modification of any such license,
certificate, authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of its business, operations or financial condition.
(o) On the related Closing Date, (i) the Depositor will have good and
marketable title to the related Mortgage Loans being transferred by it to the
Trust pursuant thereto, free and clear of any Lien, except to the extent
permitted in the applicable Agreement, (ii) the Depositor will not have assigned
to any person any of its right, title or interest in such Mortgage Loans or in
the applicable Agreement, and (iii) the Depositor will have the power and
authority to sell such Mortgage Loans to the Trust, and upon execution and
delivery of the applicable Agreement by the Trustee and Servicer (as
applicable), the Trust will have good and marketable title thereto, in each case
free of Liens other than any Lien created by an Underwriter.
(p) The properties and businesses of the Depositor conform, and will
conform, in all material respects, to the descriptions thereof contained in the
Prospectus and the Prospectus Supplements.
(q) The Depositor is not, as of the commencement of the offering, an
Ineligible Issuer, as such term is defined in Rule 405 of the 1933 Act
Regulations.
(r) Neither the Issuer nor the Trust Funds are or, as a result of the
offer and sale of the Securities as contemplated in this Agreement will become,
an "investment company" or "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(s) The Company acknowledges and agrees that the relationship between
itself and the Underwriter is an arms-length commercial relationship that
creates no fiduciary duty on the part of the Underwriter, and each party
expressly disclaims any fiduciary relationship.
3. PURCHASE, SALE AND DELIVERY OF SECURITIES.
(a) On the basis of the representations, warranties and agreements
contained in this Underwriting Agreement and in the Terms Agreement for a
particular offering of Securities, but subject to the terms and conditions set
forth in this Underwriting Agreement and subject to the execution of such Terms
Agreement, the Depositor agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Depositor, the respective original principal amounts of the related
Securities set forth in the related Terms Agreement opposite the name of such
Underwriter, plus any additional original principal amount of Securities which
such Underwriter may be obligated to purchase pursuant to Section 12 hereof, at
the purchase price therefor set forth in such Terms Agreement.
(b) The parties hereto agree that settlement for all securities sold
pursuant to this Underwriting Agreement shall take place on the terms set forth
herein and not as set forth in Rule 15c6-1 under the Exchange Act.
(c) Against payment of the purchase price specified in the applicable
Terms Agreement in same day funds drawn to the order of the Depositor (or paid
by such other manner as may be agreed upon by the Depositor and the
Representative), the Depositor will deliver the related Securities of a Series
to the Underwriters at the address set forth in the related Terms Agreement, at
such time as shall be specified in such Terms Agreement, or at such other place
and time as the Representative and the Depositor shall agree upon, each such
time being herein referred to as a "CLOSING DATE." The Securities of each Series
will initially be in definitive, fully registered form or will be maintained
through the facilities of The Depository Trust Company, as indicated in the
applicable Prospectus Supplement.
(d) With respect to the purchase of Securities of a Series by the
Underwriters, the Depositor hereby agrees to pay each Underwriter the
compensation, if any, specified in the related Terms Agreement.
4. PUBLIC OFFERING OF SECURITIES.
(a) It is understood by the parties hereto that, after the Registration
Statement becomes effective, the Underwriters propose to offer the Securities
for sale to the public (which may include selected dealers), as set forth in the
Prospectus and the Underwriters agree that all such offers, solicitations and
sales by them shall be made in compliance with all applicable laws and
regulations. Prior to the date of the first contract of sale made based on the
Definitive Free Writing Prospectus, the Representative has not sold any
Securities or any security backed by the Mortgage Loans, any interest in any
Securities or any such security of any Mortgage Loan.
(b) It is understood that the Underwriters will solicit offers to
purchase the Securities as follows:
(i) Prior to the time you have received the Definitive Free
Writing Prospectus you may, in compliance with the provisions of this
Agreement, solicit offers to purchase Securities; provided, that you
shall not accept any such offer to purchase a Securities or any
interest in any Securities or Mortgage Loan or otherwise enter into any
Contract of Sale for any Securities, any interest in any Securities or
any Mortgage Loan prior to the investor's receipt of the Definitive
Free Writing Prospectus.
(ii) Any Free Writing Prospectus (other than the Definitive
Free Writing Prospectus) relating to the Securities used by any
Underwriter in compliance with the terms of this Agreement prior to the
time such Underwriter has entered into a Contract of Sale for
Securities shall prominently set forth the following statement:
The information in this free writing prospectus is preliminary, and
will be superseded by the Definitive Free Writing Prospectus. This free
writing prospectus is being delivered to you solely to provide you with
information about the offering of the Securities referred to in this
free writing prospectus and to solicit an offer to purchase the
Securities, when, as and if issued. Any such offer to purchase made by
you will not be accepted and will not constitute a contractual
commitment by you to purchase any of the Securities until we have
accepted your offer to purchase Securities. We will not accept any
offer by you to purchase Securities, and you will not have any
contractual commitment to purchase any of the Securities until after
you have received the Definitive Free Writing Prospectus. You may
withdraw your offer to purchase Securities at any time prior to our
acceptance of your offer.
"Written Communication" has the same meaning as that term is defined in
Rule 405 of the 1933 Act Regulations.
(iii) Any Free Writing Prospectus relating to Securities and
used by any Underwriter in connection with marketing the Securities,
including the Definitive Free Writing Prospectus, shall prominently set
forth the following statement:
The Securities referred to in these materials are being sold when, as
and if issued. The Underwriters are advised that Securities may not be
issued that have the characteristics described in these materials. Our
obligation to sell such Securities to the Underwriters is conditioned
on the mortgage loans and notes having the characteristics described in
these materials. If for any reason we do not deliver such Securities,
we will notify the Underwriters, and neither the issuer nor any
underwriter will have any obligation to you to deliver all or any
portion of the Securities which you have committed to purchase, and
none of the issuer nor any underwriter will be liable for any costs or
damages whatsoever arising from or related to such non-delivery.
(c) It is understood that you will not enter into a Contract of Sale
with any investor until the investor has received the Definitive Free Writing
Prospectus. For purposes of this Agreement, Contract of Sale has the same
meaning as in Rule 159 of the 1933 Act Regulations and all Commission guidance
relating to Rule 159, including without limitation the Commission's statement in
Securities Act Release No. 33-8501 that "a contract of sale can occur under the
federal securities laws before there is a bilateral contract under state law,
for example when a purchaser has taken all actions necessary to be bound but a
seller's obligations remain conditional under state law." The Definitive Free
Writing Prospectus shall prominently set forth the following statement:
This Definitive Free Writing Prospectus supersedes the information in
any free writing prospectus previously delivered in connection with
this offering, to the extent that this Definitive Free Writing
Prospectus is inconsistent with any information in any free writing
prospectus previously delivered in connection with this offering.
(d) It is understood that you may prepare and provide to prospective
investors certain Free Writing Prospectuses (as defined below), subject to the
following conditions:
(i) Unless preceded or accompanied by a prospectus satisfying
the requirements of Section 10(a) of the Act, the Underwriters shall
not convey or deliver any Written Communication to any person in
connection with the initial offering of the Securities, unless such
Written Communication either (i) is made in reliance on Rule 134 under
the Act, (ii) constitutes a prospectus satisfying the requirements of
Rule 430B under the Act, (iii) is the Definitive Free Writing
Prospectus, or (iv) both (1) constitutes a Free Writing Prospectus (as
defined below) used in reliance on Rule 164 and (2) includes only
information that is within the definition of ABS Informational and
Computational Materials as defined in Item 1100 of Regulation AB.
(ii) Each Underwriter shall comply with all applicable laws
and regulations in connection with the use of Free Writing
Prospectuses, including but not limited to Rules 164 and 433 of the
1933 Act Regulations and all Commission guidance relating to Free
Writing Prospectuses, including but not limited to Commission Release
No. 33-8591.
(iii) For purposes hereof, "Free Writing Prospectus" shall
have the meaning given such term in Rules 405 and 433 of the 1933 Act
Regulations. "Issuer Information" shall mean information included in a
Free Writing Prospectus that both (i) is within the types of
information specified in clauses (1) to (5) of footnote 271 of
Commission Release No. 33-8591 (Securities Offering Reform) as shown in
Exhibit B hereto and (ii) has been either prepared by, or has been
reviewed and approved by, the Depositor. "Underwriter Derived
Information" shall refer to information of the type described in clause
(5) of such footnote 271 when prepared by an Underwriter.
(iv) All Free Writing Prospectuses provided to prospective
investors, whether or not filed with the Commission, shall bear a
legend on each page including the following statement:
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION
RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS IN THAT
REGISTRATION STATEMENT AND OTHER DOCUMENTS THE ISSUER HAS FILED WITH
THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER AND THE
OFFERING. YOU MAY GET THESE DOCUMENTS AT NO CHARGE BY VISITING XXXXX ON
THE SEC WEB SITE AT XXX.XXX.XXX [XXXXXXXXXXX.XXX OR AT UNDERWRITER'S
WEBSITE]. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR ANY DEALER
PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS
AT NO CHARGE IF YOU REQUEST IT BY CALLING TOLL-FREE 1-8[XX-XXX-XXXX].
The Depositor shall have the right to require additional specific
legends or notations to appear on any Free Writing Prospectus, the right to
require changes regarding the use of terminology and the right to determine the
types of information appearing therein.
(v) The Underwriters shall deliver to the Depositor and its
counsel, no later than two business days prior to the proposed date of
first use thereof, (i) any Free Writing Prospectus prepared by or on
behalf of the Underwriters that contains any information that, if
reviewed and approved by the Depositor, would be Issuer Information,
and (ii) any Free Writing Prospectus or portion thereof that contains
only a description of the final terms of the Securities after such
terms have been established for all classes of Securities being
publicly offered. No information in any Free Writing Prospectus shall
consist of information of a type that is not included within the
definition of ABS Informational and Computational Materials. To
facilitate filing to the extent required by Section 5(l) or 5(m), as
applicable, all Underwriter Derived Information shall be set forth in a
document separate from the document including Issuer Information. The
Underwriters shall provide to the Depositor, for filing as provided in
Section 5.10, copies (in such format as required by the Depositor) of
all Free Writing Prospectuses. All Free Writing Prospectuses described
in this subsection (e) must be approved by the Depositor before the
Underwriters provide the Free Writing Prospectus to investors pursuant
to the terms of this Agreement.
(vi) Each Underwriter agrees that all information included in
the Free Writing Prospectuses shall be prepared, to the extent
possible, based on the information contained in the Registration
Statement and anticipated to be included in the Prospectus. None of the
information in the Free Writing Prospectuses may conflict with the
information contained in the Prospectus or the Registration Statement.
(vii) The Depositor shall not be obligated to file any Free
Writing Prospectuses that have been determined to contain any material
error or omission, unless the Depositor is required to file the Free
Writing Prospectus pursuant to Section 5(l) below. In the event that an
Underwriter becomes aware that, as of the date on which an investor
entered into an agreement to purchase any Securities, any Free Writing
Prospectus prepared by or on behalf of the Underwriters and delivered
to such investor contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which
they were made, not misleading, such Underwriter shall notify the
Depositor thereof as soon as practical but in any event within one
business day after discovery.
(viii) If the Underwriters do not provide any Free Writing
Prospectuses to the Depositor pursuant to subsection (e) above, the
Underwriters shall be deemed to have represented, as of the Closing
Date, that they did not provide any prospective investors with any
information in written or electronic form in connection with the
offering of the Securities that is required to be filed with the
Commission by the Depositor as a Free Writing Prospectus (other than
the Definitive Free Writing Prospectus) in accordance with the 1933 Act
Regulations.
(ix) In the event of any delay in the delivery by the
Underwriters to the Depositor of any Free Writing Prospectuses required
to be delivered in accordance with subsection (e) above, or in the
delivery of the accountant's comfort letter in respect thereof pursuant
to subsection (f) above, the Depositor shall have the right to delay
the release of the Prospectus to investors or to the Underwriters, to
delay the Closing Date and to take other appropriate actions in each
case as necessary in order to allow the Depositor to comply with its
agreement set forth in Section 5.10 to file the Free Writing
Prospectuses by the time specified therein.
(x) Each Underwriter represents that it has in place, and
covenants that it shall maintain internal controls and procedures which
it reasonably believes to be sufficient to ensure full compliance with
all applicable legal requirements of the 1933 Act Regulations with
respect to the generation and use of Free Writing Prospectuses in
connection with the offering of the Securities. In addition, each
Underwriter shall, for a period of at least three years after the date
hereof, maintain written and/or electronic records of the following:
(A) Any written communications in respect of the
Securities not deemed a Prospectus or a Free Writing
Prospectus because its content is limited to the statements
permitted by Rule 134 of the Securities Act;
(B) any Free Writing Prospectus used to solicit
offers to purchase Securities;
(C) regarding each Free Writing Prospectus delivered
to a prospective investor, the date of such delivery and
identity of such prospective investor;
(D) regarding each offer to purchase Securities
received by such Underwriter, the identity of the offeror, the
date the offer was made and the proposed terms and allocation
of the Securities offered to be purchased; and
(E) regarding each Contract of Sale entered into by
such Underwriter, the date, identity of the investor and the
terms of such Contract of Sale, including the amount and price
of Securities subject to such Contract of Sale.
(xi) Each Underwriter covenants with the Depositor that after
the final Prospectus is available such Underwriter shall not distribute
any written information concerning the Securities to a prospective
investor unless such information is preceded or accompanied by the
final Prospectus.
(xii) Each Underwriter agrees to provide written notice to the
Depositor of the date it first enters into any Contract of Sale for a
Securities.
(e) Each Underwriter further agrees that (i) it will include in every
confirmation sent out the notice required by Rule 173 informing the investor
that the sale was made pursuant to the Registration Statement and that the
investor may request a copy of the Prospectus from such Underwriter; (ii) if a
paper copy of the Prospectus is requested by a person who receives a
confirmation, such Underwriter shall deliver a paper copy of such Prospectus;
(iii) if an electronic copy of the Prospectus is delivered by an Underwriter for
any purpose, such copy shall be the same electronic file containing the
Prospectus in the identical form transmitted electronically to such Underwriter
by or on behalf of the Depositor specifically for use by such Underwriter
pursuant to this Section 4.6; for example, if the Prospectus is delivered to an
Underwriter by or on behalf of the Depositor in a single electronic file in .pdf
format, then such Underwriter will deliver the electronic copy of the Prospectus
in the same single electronic file in .pdf format; and (iv) it has not used, and
during the period for which it has an obligation to deliver a "prospectus" (as
defined in Section 2(a)(10) of the Act) relating to the Securities (including
any period during which the Underwriters have such delivery obligation in its
capacity as a "dealer" (as defined in Section 2(a)(12) of the Act)) it will not
use any internet website or electronic media containing information for
prospective investors, including any internet website or electronic media
maintained by third parties, in connection with the offering of the Securities,
except in compliance with applicable laws and regulations. Each Underwriter
further agrees that (i) if it delivers to an investor the Prospectus in .pdf
format, upon such Underwriters' receipt of a request from the investor within
the period for which delivery of the Prospectus is required, such Underwriter
will promptly deliver or cause to be delivered to the investor, without charge,
a paper copy of the Prospectus and (ii) it will provide to the Depositor any
Free Writing Prospectuses, or portions thereof, which the Depositor is required
to file with the Commission in electronic format and will use reasonable efforts
to provide to the Depositor such Free Writing Prospectuses, or portions thereof,
in either Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF,
except to the extent that the Depositor, in its sole discretion, waives such
requirements.
(f) In the event that an Underwriter uses a road show (as defined in
Rule 433) in connection with the offering of the Securities, all information in
the road show will be provided orally only, and not as a Written Communication.
Each Underwriter agrees that any slideshow used in connection with a road show
(i) will only be provided as part of the road show and not separately, (ii) if
handed out at any meeting as a hard copy, will be retrieved prior to the end of
the meeting, and (iii) will otherwise be used only in a manner that does not
cause the slideshow to be treated as a Free Writing Prospectus.
5. COVENANTS OF THE DEPOSITOR. The Depositor covenants and agrees with each
Underwriter:
(a) That immediately following the execution of each Terms Agreement,
the Depositor shall prepare a Prospectus Supplement setting forth the amount of
Securities covered thereby and the terms thereof not otherwise specified in the
Prospectus, the price at which such Securities are to be purchased by the
Underwriters from the Depositor, either the initial public offering price or the
method by which the price at which such Securities are to be sold will be
determined, the selling concessions and reallowances, if any, and such other
information as the Representative and the Depositor deem appropriate in
connection with the offering of such Securities; provided, however, that the
Depositor shall make no amendment or supplement to the Registration Statement
affecting or relating to any material extent to the Securities of a Series to
which this Underwriting Agreement relates, and shall make no amendment or
supplement to the Prospectus or the Prospectus Supplement without furnishing the
Representative with a copy of the proposed form thereof and providing the
Representative with a reasonable opportunity to review the same, and shall not
file any such amendment or supplement to which the Representative shall
reasonably object; and, provided further, that the Depositor shall advise the
Representative, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or the Prospectus Supplement or any amended
Prospectus or Prospectus Supplement has been filed or mailed for filing, of the
issuance of any stop order by the Commission, of the suspension of the
qualification of the Securities of a Series for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement, the Prospectus or the Prospectus Supplement or
for additional information; and, in the event of the issuance of any such stop
order or of any order preventing or suspending the use of any Prospectus or
Prospectus Supplement relating to the Securities of a Series or suspending any
such qualification, promptly shall use its best efforts to obtain its
withdrawal.
(b) That the Depositor shall cause any Computational Materials and any
Structural Term Sheets (each as defined herein) with respect to the Securities
of a Series that are delivered by an Underwriter to the Depositor pursuant to
Section 10 to be filed with the Commission on a Current Report on Form 8-K (an
"ABS FILING") pursuant to Rule 13a-11 under the Exchange Act on the business day
immediately following the later of (i) the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the Depositor
by an Underwriter prior to 1:00 p.m. New York time and (ii) the date on which
the related Prospectus Supplement is first made available to the public. The
Depositor shall cause any Collateral Term Sheet with respect to the Securities
of a Series that is delivered by the Representative to the Depositor in
accordance with the provisions of Section 11 to be filed with the Commission on
an ABS Filing pursuant to Rule 13a-11 under the Exchange Act on the business day
immediately following the day on which such Collateral Term Sheet is delivered
to counsel for the Depositor by the Representative. Each such ABS Filing shall
be incorporated by reference in the related Prospectus and the related
Registration Statement.
(c) To furnish to each Underwriter copies of the Registration Statement
(one of which will be signed and will include all exhibits), each related
preliminary prospectus, the Prospectus, Prospectus Supplement, and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as such Underwriter may from time to time reasonably
request; and, if the delivery of a Prospectus or Prospectus Supplement shall be
at the time required by law in connection with sales of the Securities of a
Series and either (i) any event shall have occurred as a result of which the
Prospectus or Prospectus Supplement 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, not misleading or (ii) for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or Prospectus Supplement,
to notify the Representative and to prepare and furnish to the Representative as
the Representative may from time to time reasonably request an amendment or a
supplement to the Prospectus or Prospectus Supplement which will correct such
statement or omission or effect such compliance, or if it is necessary at any
time to amend or supplement the Prospectus or Prospectus Supplement to comply
with the Act or the Rules and Regulations, the Depositor will promptly prepare
and file with the Commission an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance;
provided, however, that the Depositor will not be required to file any such
amendment or supplement with respect to any Computational Materials, Structural
Term Sheets or Collateral Term Sheets incorporated by reference in the
Prospectus other than any amendments or supplements of such Computational
Materials or Structural Term Sheets that are furnished to the Depositor by the
Underwriters pursuant to Section l0(c) hereof or any amendments or supplements
of such Collateral Term Sheets that are furnished to the Depositor by the
Underwriters pursuant to Section 11(c) hereof which are required to be filed in
accordance therewith.
(d) So long as any of the Securities of a Series are outstanding, to
furnish each Underwriter copies of all reports or other communications
(financial or other) furnished to holders of such Securities, and to deliver to
the Underwriters during such same period (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission and (ii) such additional information concerning the business and
financial condition of the Depositor as such Underwriter may from time to time
reasonably request.
(e) Promptly from time to time to take such action as the
Representative may reasonably request in order to qualify the Securities of a
Series for offering and sale under the securities laws of such states as the
Representative may request and to continue such qualifications in effect so long
as necessary under such laws for the distribution of such Securities; provided,
that in connection therewith the Depositor shall not be required to qualify as a
foreign corporation to do business or to file a general consent to service of
process in any jurisdiction.
(f) To pay all expenses (other than fees of counsel for the
Underwriters, except as provided herein) incident to the performance of the
obligations under this Underwriting Agreement and the related Terms Agreement,
including:
(i) the word processing, printing and filing of the
Registration Statement as originally filed and of each amendment
thereto;
(ii) the reproduction of this Underwriting Agreement and the
related Terms Agreement;
(iii) the preparation, printing, issuance and delivery of the
Securities of each Series to the Underwriters;
(iv) the fees and disbursements of counsel and accountants for
the Depositor;
(v) the qualification of the Securities of a Series under
securities laws in accordance with the provisions of Section 5(e)
hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey;
(vi) if requested by the Representative, the determination of
the eligibility of the Securities for investment and the reasonable
fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Legal
Investment Memorandum;
(vii) the printing and delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each amendment
thereto, of the preliminary prospectuses, and of the Prospectus and
Prospectus Supplement and any amendments or supplements thereto;
(viii) the printing and delivery to the Underwriters of copies
of the Blue Sky Survey and, if requested by the Representative, the
Legal Investment Memorandum, if any; and
(ix) the fees of any rating agency rating the Securities of a
Series.
(g) To file or cause to be filed with the Commission all reports
required to be filed with respect to each Series pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act.
(h) So long as the Securities of a Series are outstanding, or until
such time as each Underwriter shall cease to maintain a secondary market in such
Securities, whichever occurs first, to deliver to each Underwriter all
statements and reports furnished to the related Trustee or Servicer pursuant the
applicable Agreement, as soon as such statements and reports are furnished to
such Trustee or Servicer. (i) From and after the related Closing Date, not to
take any action inconsistent with the related Trust's ownership of the related
Mortgage Loans other than as permitted by the applicable Agreement.
(j) To the extent, if any, that the rating provided with respect to any
Class of Securities of a Series by a rating agency or agencies that initially
rate such Securities is conditional upon the furnishing of documents or the
taking of any other actions by the Depositor, to furnish such documents and take
any such other actions.
(k) That during the period when a prospectus is required by law to be
delivered in connection with the sale of the Securities of a Series pursuant to
this Underwriting Agreement and the related Terms Agreement, the Depositor will
file, or cause the related Trustee to file on behalf of the related Trust, on a
timely and complete basis, all documents that are required to be filed by such
Trust with the Commission pursuant to Sections 13, 14 or 15(d) of the Exchange
Act.
(l) The Depositor shall file any Free Writing Prospectus prepared by
the Depositor (including the Definitive Free Writing Prospectus), and any Issuer
Information contained in any Free Writing Prospectus provided to it by the
Underwriters under Section 4(d)(v), not later than the date of first use of such
Free Writing Prospectus, except that:
(i) As to any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the final
terms of the Securities after such terms have been established for all
classes of Securities being publicly offered, such Free Writing
Prospectus or portion thereof may be filed by the Depositor within two
days of the later of the date such final terms have been established
for all classes of Securities being publicly offered and the date of
first use; and
(ii) Notwithstanding clause (a) above, as to any Free Writing
Prospectus or portion thereof required to be filed that contains only
information of a type included within the definition of ABS
Informational and Computational Materials, the Depositor shall file
such Free Writing Prospectus or portion thereof within the later of two
business days after the Underwriters first provide this information to
investors and the date upon which the Depositor is required to file the
Prospectus Supplement with the Commission pursuant to Rule 424(b)(3) of
the Act.
provided further, that prior to such use of any Free Writing
Prospectuses by the Depositor, the Underwriters must comply with their
obligations pursuant to Section 4(d) and that the Depositor shall not be
required to file any Free Writing Prospectus that does not contain substantive
changes from or additions to a Free Writing Prospectus previously filed with the
Commission.
(m) The Underwriters shall file any Free Writing Prospectus that has
been distributed by the Underwriters in a manner that could lead to its broad,
unrestricted dissemination not later than the date of first use, provided that
if that Free Writing Prospectus contains only information of a type included
within the definition of ABS Informational and Computational Materials then such
filing shall be made within the later of two business days after the
Underwriters first provide this information to investors and the date upon which
the Depositor is required to file the Prospectus Supplement with the Commission
pursuant to Rule 424(b)(3) of the Act; provided further, that the Depositor
shall not be required to file any Free Writing Prospectus that does not contain
substantive changes from or additions to a Free Writing Prospectus previously
filed with the Commission.
(n) The Depositor will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424(b) under the Act
by means reasonably calculated to result in filing with the Commission pursuant
to said rule. The Depositor will cause the Prospectus Supplement to be
transmitted to the Commission for filing no later than the close of business on
the business day prior to the Closing Date.
(o) 5.4 If any Written Communication or oral statement in connection
with the offering of the Securities contains an untrue statement of material
fact or omits to state a material fact necessary to make the statements, in
light of the circumstances under which they were made, not misleading at the
time that a Contract of Sale was entered into, when taken together with all
information that was conveyed to any person with whom a Contract of Sale was
entered into, then the Underwriter shall provide any such person with the
following:
(i) Adequate disclosure of the contractual arrangement;
(ii) Adequate disclosure of the person's rights under the
existing Contract of Sale at the time termination is sought;
(iii) Adequate disclosure of the new information that is
necessary to correct the misstatements or omissions in the information
given at the time of the original Contract of Sale; and
(iv) A meaningful ability to elect to terminate or not
terminate the prior Contract of Sale and to elect to enter into or not
enter into a new Contract of Sale.
6. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligation
of the Underwriters to purchase and pay for the Securities of a Series is
subject to the accuracy of the representations and warranties on the part of the
Depositor herein and in the related Terms Agreement as of the respective dates
thereof and the related Closing Date, to the accuracy of the statements of
officers of the Depositor made pursuant to the provisions hereof and thereof, to
the performance by the Depositor of its obligations hereunder and thereunder and
to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later
than 4:00 p.m., New York time, on the day following the date of this
Underwriting Agreement or such later date as shall have been consented to by the
Representative; and prior to the related Closing Date 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. If the Depositor has
elected to rely upon Rule 430A of the Rules and Regulations, the price of the
Securities of a Series and any price-related information previously omitted from
the effective Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules
and Regulations within the prescribed time period, and prior to the related
Closing Date the Depositor shall have provided evidence satisfactory to the
Representative of such timely filing, or a post-effective amendment providing
such information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing
Date to the Representative a certificate, dated as of such Closing Date, signed
its president, senior vice president or a vice president of the Depositor to the
effect that the signer of such certificate has carefully examined the
Registration Statement, the Prospectus, each related Agreement and this
Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the
representations and warranties of the Depositor in this Underwriting
Agreement and the related Terms Agreement are true and correct in all
material respects at and as of such Closing Date with the same effect
as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been initiated or to the Depositor's knowledge, threatened
as of such Closing Date; and
(iv) nothing has come to such person's attention that would
lead such person to believe that the Prospectus as amended and
supplemented as of such Closing Date 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) Since the respective dates as of which information is given in the
Prospectus and Prospectus Supplement, there shall not have occurred any material
adverse change or any development involving a prospective material adverse
change in or affecting particularly the business or assets of the related Trust
or the Depositor or any material adverse change in the financial position or
results or operations of such Trust or the Depositor otherwise than as set forth
or contemplated in the Prospectus and Prospectus Supplement, which in any such
case makes it impracticable or inadvisable in the Representative's judgment to
proceed with the public offering or the delivery of the related Securities on
the terms and in the manner contemplated in the related Terms Agreement and
Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business, financial
condition or properties of the Depositor which, in the Representative's
judgment, materially impairs the investment quality of the related Securities,
(ii) any material adverse change in the financial markets in the United States
or any outbreak of hostilities or other calamity or crisis, the effect of which
is such as to make it, in the judgment of the Representative, impracticable or
inadvisable to market such Securities or to enforce contracts for the sale of
such Securities, (iii) the suspension of trading generally by either the
American Stock Exchange or the New York Stock Exchange, or the establishment of
minimum or maximum prices or ranges of prices, by either of such exchanges or by
order of the Commission or any other governmental authority, or any banking
moratorium declared by federal or New York authorities or (iv) any event that
would constitute a default under such Terms Agreement or this Underwriting
Agreement or default in the performance of the Depositor's obligations under any
related Agreement or which, with the passage of time or the giving of notice or
both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for the Depositor, an opinion, dated the
related Closing Date, addressed to the Underwriters and satisfactory in form and
substance to the Representative and to counsel to the Underwriters, with respect
to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for each Trustee, an opinion, dated the
related Closing Date, addressed to the Underwriters and the Depositor and
satisfactory in form and substance to the Representative and to counsel to the
Underwriters.
(g) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for each Servicer, an opinion, dated the
related Closing Date, addressed to the Underwriters and the Depositor and
satisfactory in form and substance to the Representative and to counsel to the
Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative
any opinions supplied to the rating agencies relating to certain matters with
respect to the Securities of a Series, which opinions shall also be addressed to
the Underwriters. Drafts of such opinions shall have been furnished to the
Representative no later than five business days prior to the related Closing
Date.
(i) The Representative shall have received a letter, dated the related
Closing Date and addressed to the Underwriters, from certified public
accountants (who shall be satisfactory to the Representative), substantially in
the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this
Underwriting Agreement shall be reasonably satisfactory in form and substance to
the Representative and counsel to the Underwriters; and all actions taken by the
Depositor to authorize the offering and sale of the Securities of a Series shall
be reasonably satisfactory in form and substance to the Representative and
counsel to the Underwriters; and the Depositor shall furnish the Representative
and counsel to the Underwriters with such other opinions, certificates, letters
and documents as the Representative or counsel to the Underwriters shall
reasonably request.
(k) The Securities of the related Series shall have received the
ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no
downgrading, nor has any notice been given of (i) any intended or possible
downgrading or (ii) any review or possible changes in rating the direction of
which has not been indicated, in the rating accorded and originally requested by
and paid for by or on behalf of the Depositor relating to any previously issued
asset-backed securities of the Depositor by any "nationally recognized
statistical rating organization" (as such term is defined for purposes of the
Exchange Act).
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Underwriting Agreement
(with respect to the related Securities) and the related Terms Agreement may be
terminated by the Representative by notice to the Depositor at any time at or
prior to the related Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Section 5
hereof.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Securities of a
Series is not consummated by reason of any failure, refusal or inability on the
part of the Depositor to perform any agreement on its part to be performed, or
because any condition of the Underwriters' obligations hereunder required to be
fulfilled shall not have been fulfilled (other than as a result of any breach or
default by the Underwriters), the Depositor shall be obligated to reimburse the
Underwriters for all out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters. For purposes of the preceding
sentence, the conditions in clauses (ii) and (iii) of Section 6(d) shall not be
conditions required to be fulfilled by the Depositor.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Depositor shall indemnify and hold harmless each Underwriter
and each person who controls any Underwriter within the meaning of Section 15 of
the Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Definitive Free Writing Prospectus, or
in any Issuer Information contained in any other Free Writing
Prospectus, or in any Underwriter Derived Information to the extent
caused by any material error in the Pool Information, or in the
Registration Statement for the registration of the Securities as
originally filed or in any amendment thereof or other filing
incorporated by reference therein, or in the in the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except insofar as such losses, claims, damages, or
liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon any information with
respect to which the Underwriters have agreed to indemnify the
Depositor pursuant to Section 8(a)(ii). This indemnity agreement will
be in addition to any liability which the Depositor may otherwise have.
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any 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 (which
consent shall not be unreasonably withheld); and
(iii) against any and all expense whatsoever (including,
subject to Section 8(c) hereof, the reasonable fees and disbursements
of counsel chosen by the Representative) incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this Section 8 shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made (A) in reliance upon and
in conformity with written information furnished to the Depositor by the
Representative expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) and set forth in the Prospectus and in the Prospectus
Supplement, in each case as specified in the related Terms Agreement, or (B) in
any ABS Filing or any amendment or supplement thereof, except to the extent that
any untrue statement or alleged untrue statement therein or omission therefrom
results (or is alleged to have resulted) from an error (a "POOL ERROR") in the
information concerning the characteristics of the Mortgage Loans furnished by
the Depositor to the Underwriter in writing or by electronic transmission that
was used in the preparation of any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) included in such ABS Filing (or amendment
or supplement thereof).
(b) Each Underwriter, severally, agrees to indemnify and hold harmless
the Depositor, its directors, officers who signed the Registration Statement,
and each person, if any, who controls the Depositor within the meaning of
Section 15 of the Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section
8, as incurred, but only with respect to (i) untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Depositor through the Representative expressly for
use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), in each
case as specified in the related Terms Agreement, or (ii) any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) furnished to
the Depositor by such Underwriter through the Representative pursuant to Section
10 or Section 11, or directly by such Underwriter, to the extent that such
materials were delivered to investors by such Underwriter, and incorporated by
reference in such Registration Statement or the related Prospectus or any
amendment or supplement thereof (except that no such indemnity shall be
available for any losses, claims, damages or liabilities, or actions in respect
thereof, resulting from any Pool Error), (iii) the Underwriters' Information and
the decrement/yield tables, (iv) any Underwriter Derived Information, except to
the extent of any errors in any Underwriter Derived Information that are caused
by errors in the Pool Information, (v) any Free Writing Prospectus for which the
conditions set forth in Section 4(d)(v) above are not satisfied with respect to
the prior approval by the Depositor, (vi) any portion of any Free Writing
Prospectus (other than the Definitive Free Writing Prospectus) not constituting
Issuer Information, (vii) any liability resulting from the Underwriters' failure
to provide any investor with the Definitive Free Writing Prospectus prior to
entering into a Contract of Sale with such investor or failure to file any Free
Writing Prospectus required to be filed by the Underwriter in accordance with
Section 5(m), and (vii) any liability resulting from the Underwriters' failure
to comply with Section 4(f) in connection with any road show. This indemnity
agreement will be in addition to any liability which the Underwriter may
otherwise have.
The Depositor acknowledges that the Underwriters' Information and the
decrement/yield tables constitute the only information furnished in writing by
or on behalf of the Underwriter expressly for use in the Registration Statement
or the Prospectus or in any amendment thereof or supplement thereto, as the case
may be.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it with
respect to which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may have
otherwise than on account of this Section 8. An indemnifying party may
participate at its own expense in the defense of any such action. In no event
shall the indemnifying parties be liable for the fees and expenses of more than
one counsel (in addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
9. CONTRIBUTION. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 is for
any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Depositor, on the one hand, and the
Underwriters (as applicable), on the other, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said Section 8 incurred by the Depositor and one or more Underwriters, as
incurred, in such proportions that each applicable Underwriter is responsible
for that portion represented by the percentage that the underwriting discount
received by it bears to the initial public offering price of the related Series
of Securities, and the Depositor shall be responsible for the balance; provided,
however, that 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. Notwithstanding
the other provisions of this Section 9, an Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
such Securities were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay in respect of such
losses, liabilities, claims, damages and expenses. For purposes of this Section
9, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Act shall have the same rights to contribution as such
Underwriter and each officer of the Depositor who signed the Registration
Statement, and each person, if any, who controls the Depositor within the
meaning of Section 15 of the Act shall have the same rights to contribution as
the Depositor.
10. COMPUTATIONAL MATERIALS AND STRUCTURAL TERM SHEETS.
(a) Not later than 5 p.m., New York time, on the business day before
the date on which the applicable ABS Filing relating to the Securities of a
Series is required to be filed by the Depositor with the Commission pursuant to
Section 5(b) hereof, the Representative shall deliver to the Depositor a
complete copy of all materials provided by the Underwriters to prospective
investors in such Securities that constitute (i) "Computational Materials"
within the meaning of the no-action letter dated May 20, 1994, issued by the
Division of Corporation Finance of the Commission to Xxxxxx, Xxxxxxx Asset
Corporation I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx Structured Asset
Corporation and the no-action letter dated May 27, 1994, issued by the Division
of Corporation Finance of the Commission to the Public Securities Association
(together, the "XXXXXX LETTERS"), the filing of which material is a condition of
the relief granted in such letters (such materials being the "COMPUTATIONAL
MATERIALS") and (ii) "Structural Term Sheets" within the meaning of the
no-action letter dated February 17, 1995, issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA
LETTER"), the filing of which material is a condition of the relief granted in
such letter (such materials being the "STRUCTURAL TERM SHEETS"); prior to such
delivery by the Representative to the Depositor of such materials, the
Representative shall notify, or cause to be notified, the Depositor or its
counsel by telephone of its intention to deliver such materials and the
approximate date on which such delivery of such materials is expected to occur.
(b) Each Underwriter, represents and warrants to and agrees with the
Depositor, as of the date of the related Terms Agreement and as of the related
Closing Date, that:
(i) the Computational Materials furnished to the Depositor
pursuant to Section 10(a) constitute (either in original, aggregated or
consolidated form) all of the materials furnished to prospective
investors by such Underwriter prior to the time of delivery thereof to
the Depositor that are required to be filed with the Commission with
respect to the related Securities in accordance with the Xxxxxx
Letters, and such Computational Materials comply with the requirements
of the Xxxxxx Letters; and
(ii) the Structural Term Sheets furnished to the Depositor
pursuant to Section 10(a) constitute all of the materials furnished to
prospective investors by such Underwriter prior to the time of delivery
thereof to the Depositor that are required to be filed with the
Commission as "Structural Term Sheets" with respect to the related
Securities in accordance with the PSA Letter, and such Structural Term
Sheets comply with the requirements of the PSA Letter
(c) If, at any time when a prospectus relating to the Securities of a
Series is required to be delivered under the Act, it shall be necessary to amend
or supplement the related Prospectus and Prospectus Supplement as a result of an
untrue statement of a material fact contained in any Computational Materials or
Structural Term Sheets provided by the Underwriters pursuant to this Section 10
or the omission to state therein a material fact required, when considered in
conjunction with the related Prospectus and Prospectus Supplement, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the related Prospectus and Prospectus Supplement, not misleading, or if it
shall be necessary to amend or supplement any ABS Filing relating to any
Computational Materials or Structural Term Sheets to comply with the Act or the
Rules and Regulations, the Representative promptly will prepare and furnish to
the Depositor for filing with the Commission an amendment or supplement that
will correct such statement or omission or an amendment which will effect such
compliance.
11. COLLATERAL TERM SHEETS.
(a) Prior to the delivery of any "Collateral Term Sheet" within the
meaning of the PSA Letter, the filing of which material is a condition of the
relief granted in such letter (such material being the "COLLATERAL TERM SHEETS"
and together with Structural Term Sheets, referred to herein as "ABS TERM
Sheets"), to a prospective investor in Securities of a Series, the
Representative shall, in order to facilitate the timely filing of such material
with the Commission, notify the Depositor and its counsel by telephone of its
intention to deliver such materials and the approximate date on which the first
such delivery of such materials is expected to occur. Not later than 2 p.m., New
York time, on the business day immediately following the date on which any
Collateral Term Sheet was first delivered to a prospective investor in such
Securities, the Representative shall deliver to the Depositor a complete copy of
all materials provided by the Underwriters to prospective investors in the
Securities that constitute "Collateral Term Sheets." At the time of each such
delivery, the Representative shall indicate in writing that the materials being
delivered constitute Collateral Term Sheets.
(b) Each Underwriter, represents and warrants to and agrees with the
Depositor as of the date of the related Terms Agreement and as of the related
Closing Date, that the Collateral Term Sheets furnished to the Depositor
pursuant to Section 11 (a) constitute all of the materials furnished to
prospective investors by such Underwriter prior to time of delivery thereof to
the Depositor that are required to be filed with the Commission as "Collateral
Term Sheets" with respect to the related Securities in accordance with the PSA
Letter, and such Collateral Term Sheets comply with the requirements of the PSA
Letter.
(c) If, at any time when a prospectus relating to the Securities of a
Series is required to be delivered under the Act, it shall be necessary to amend
or supplement the related Prospectus and Prospectus Supplement as a result of an
untrue statement of a material fact contained in any Collateral Term Sheets
provided by the Underwriters pursuant to this Section 11 or the omission to
state therein a material fact required, when considered in conjunction with the
related Prospectus and Prospectus Supplement, to be stated therein or necessary
to make the statements therein, when read in conjunction with the related
Prospectus and Prospectus Supplement, not misleading, or if it shall be
necessary to amend or supplement any ABS Filing relating to any Collateral Term
Sheets to comply with the Act or the Rules and Regulations, the Representative
promptly will prepare and furnish to the Depositor for filing with the
Commission an amendment or supplement that will correct such statement or
omission or an amendment which will effect such compliance.
12. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters shall fail on a Closing Date to purchase the related Securities
which it or they are obligated to purchase under this Underwriting Agreement and
the applicable Terms Agreement (the "Defaulted Securities"), the Representative
shall 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 Securities in such amounts
as may be agreed upon and upon the terms herein set forth and under the
applicable Terms Agreement; if, however, the Representative shall not have
completed such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed 10%
of the principal amount of such Series of Securities to be purchased pursuant to
such Terms Agreement, each of the non-defaulting Underwriters named in such
Terms Agreement shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations thereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the
principal amount of such Series of Securities to be purchased pursuant to such
Terms Agreement, the applicable Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 12 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of the related Terms Agreement, either the Representative or the Depositor shall
have the right to postpone the related Closing Date for a period not exceeding
seven days in order to effect any required changes in the Registration
Statement, Prospectus or Prospectus Supplement or in any other documents or
arrangements.
13. TERMINATION. This Underwriting Agreement (with respect to the related
Securities) and the related Terms Agreement shall be subject to termination in
the absolute discretion of the Representative by notice given to the Depositor
prior to delivery of and payment for all related Securities if prior to such
time (i) trading in securities of the Depositor or any of its affiliates on the
New York Stock Exchange shall have been suspended or limited, or minimum prices
shall have been established on such exchange, (ii) a banking moratorium shall
have been declared by either federal or New York State authorities, or (iii)
there shall have occurred any outbreak or material 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
Underwriters, impractical to market such Securities.
14. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS. The respective indemnities,
agreements, representations, warranties and other statements of the Depositor or
its respective officers and of the Representative set forth in or made pursuant
to this Underwriting Agreement and the related Terms Agreement will remain in
full force and effect, regardless of any investigation or statement as to the
results thereof, made by or on behalf of any Underwriter, the Depositor or any
of their respective representatives, officers or directors of any controlling
person, and will survive delivery of and payment for the related Securities.
15. ADDITIONAL UNDERWRITING OF THE SECURITIES. Each Underwriter agrees that in
connection with any subsequent underwriting of the non-underwritten Securities
acquired from the Depositor or its affiliates, the Underwriter:
(a) Will enter into an underwriting agreement with the Depositor
substantially similar to this Agreement;
(b) Will provide a copy of the Prospectus Supplement, together with any
intervening amendments thereof and supplements thereto, and copies of all
remittance reports to investors in the non-underwritten Securities, together
with any additional disclosure mutually agreeable to the Underwriter and the
Depositor; and
(c) Will not require an underwriting fee.
In connection with any subsequent underwriting, the Depositor shall
provide to the Underwriter any additional documentation, letters or opinions as
it may reasonably require, including, without limitation, letters and opinions
provided by counsel to the Issuer updated to reflect the subsequent
underwriting.
16. ALL COMMUNICATIONS HEREUNDER WILL BE IN WRITING AND:
(a) if sent to the Underwriters, will be mailed, delivered or sent by
facsimile transmission and confirmed to the Representative at:
Nomura Securities International, Inc.
2 World Xxxxxxxxx Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Credit and Whole Loan Trading
Telephone: (000) 000-0000
Fax: (000) 000-0000
(b) if sent to the Depositor, will be mailed, delivered or sent by
facsimile transmission, and confirmed to it at:
Nomura Asset Acceptance Corporation
2 World Xxxxxxxxx Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telephone:
Fax:
or to such other address as the Depositor or the Representative may designate in
writing to the other parties hereto.
17. SUCCESSORS. This Underwriting Agreement will inure to the benefit of and be
binding upon the Underwriters and the Depositor and their respective successors
and the officers and directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligations hereunder.
18. GOVERNING LAW. THIS UNDERWRITING AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH PARTY
HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW
YORK STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK, NEW YORK OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS UNDERWRITING AGREEMENT AND ANY TERMS AGREEMENT, AND IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF THE ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH STATE OR FEDERAL COURT, AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT
MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE
OF SUCH ACTION OR PROCEEDING.
19. COUNTERPARTS. This Underwriting Agreement may be executed by each of the
parties hereto in any number of counterparts, and by each of the parties hereto
on separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
20. PERFORMANCE OF CERTAIN OBLIGATIONS. The Representative agrees to perform
certain of the obligations and exercise certain of the rights of the Depositor,
all on behalf of the Depositor, under the related Agreement, as specified in the
related Terms Agreement.
21. NONPETITION COVENANT. Notwithstanding any prior termination of this
Underwriting Agreement or any Terms Agreement, the Underwriters shall not
acquiesce, petition or otherwise invoke or cause the Depositor or any Trust to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Depositor or any Trust under any
federal or state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Depositor or any Trust or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Depositor or any Trust.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, whereupon this letter and your acceptance
hereof shall constitute a binding agreement between the Underwriters and the
Depositor.
Very truly yours,
NOMURA ASSET ACCEPTANCE CORPORATION
By:
-------------------------------
Name:
Title:
Accepted in New York, New York, as of
the date hereof:
NOMURA SECURITIES INTERNATIONAL, INC.
By:
------------------------------
Name:
Title:
Acting on behalf of itself and, if
applicable, as the Representative of the
Underwriters named in the related Terms
Agreement.
EXHIBIT A
NOMURA ASSET ACCEPTANCE CORPORATION
MORTGAGE BACKED SECURITIES SERIES [______]
TERMS AGREEMENT
_______ ___, 20__
To: Nomura Asset Acceptance Corporation, as depositor under the Pooling and
Servicing Agreement dated as of _______ ___, 20__ (the "Agreement").
Re: Underwriting Agreement dated ________ __, 200__.
SERIES DESIGNATION: Series ___________.
TERMS OF THE SERIES SECURITIES: Nomura Asset Acceptance Corporation
Mortgage Backed [Notes] [Certificates], Series _____, Class____, Class ____
Class ____, Class ____ Class ____ Class ____ and Class ____ [Notes]
[Certificates] (the "Securities") will evidence beneficial ownership interest in
a pool of Mortgage Loans having the characteristics described in the Prospectus
Supplement dated the date hereof. Only the Class ____ Class ____, Class ____,
Class ____ and Class ____ [Notes] [Certificates] (collectively, the "Offered
Securities") are being sold pursuant to the terms hereof.
REGISTRATION STATEMENT: File Number 33-____.
RATINGS: It is a condition of closing that at the Closing Date the
Class ____ and Class ____ Securities be rated "____" by ________ ("____") and
"____" by ________ ("____"); that the Class ____ Securities be rated "____"
by ____ and "____" by ____; and that the Class ____ Securities be rated
"____" by ____ and "____" by ____.
TERMS OF SALE OF OFFERED SECURITIES: The Depositor agrees to sell to
Nomura Securities International, Inc. [and _______________________________ (the
"Underwriter[s]")] and Nomura Securities International, Inc. [and
_______________ each] agree[s][, severally and not jointly,] to purchase from
the Depositor the Offered Securities in the principal amounts and prices set
forth beneath their [respective] name[s] on Schedule l. The purchase price for
each class of the Offered Securities shall be the applicable Purchase Price
Percentage set forth in Schedule 1 multiplied by the applicable principal
amount.
CUT-OFF DATE: [Date]
CLOSING DATE: 10:00 A.M., New York time, on or about [Date]. On the
Closing Date, the Depositor will deliver the Offered Securities to the
Underwriters against payment therefor at the offices of
_____________________________.
UNDERWRITER-PROVIDED INFORMATION: The Depositor acknowledges and agrees
that the information set forth in (i) the table immediately following the ______
paragraph under the caption "Underwriting" in the Prospectus Supplement dated
[Date], (ii) the _______ and ______ paragraphs under such caption in such
Prospectus Supplement, and (iii) the table immediately following the ______
paragraph under such caption in such Prospectus Supplement, as such information
relates to the Securities, constitute the only information furnished in writing
by or on behalf of the Underwriters for inclusion in the Registration Statement,
the Prospectus or the Prospectus Supplement, and the Underwriters confirm that
such statements are correct.
PERFORMANCE OF CERTAIN OBLIGATIONS. The Representative agrees to
perform the obligations and exercise the rights of the Depositor, all on
behalf of the Depositor, under Sections ____ and ____ of the Agreement.
INCORPORATION OF THE STANDARD TERMS: Each of the provisions of the
Standard Terms is incorporated herein by reference in its entirety and shall be
deemed to be a part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein and each of the representations and
warranties set forth therein shall be deemed to have been made on and as of the
date of this Terms Agreement, and the Standard Terms and this Terms Agreement
shall be construed as, together, one and the same agreement. Without limiting
the foregoing, Sections 16 through 20 of the Standard Terms are incorporated
herein by reference in their entirety.
UNDERWRITING COMPENSATION: [As applicable].
If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof, whereupon this letter and your acceptance
hereof shall constitute a binding agreement between the Underwriter[s] and the
Depositor.
Very truly yours,
NOMURA ASSET ACCEPTANCE CORPORATION
By:
-------------------------------
Name:
Title:
Accepted in New York, New York, as of
the date hereof:
NOMURA SECURITIES INTERNATIONAL, INC.
By:
------------------------------
Name:
Title:
SCHEDULE L
Class Interest Initial Purchase Approximate Approximate
Rate Principal Price Amount Amount
or Notional Percentage Purchased by Purchased by
Amount(1) Nomura [_____]
Securities
International,
Inc.
--------------------------------------------------------------------------------
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Total/Wtd Avg $ % $ $
-------------------------
(1) Approximate.
EXHIBIT B
FOOTNOTE 271 INFORMATION
[Excerpt from Offering Reform adopting release-bold headings added for
convenience of reference]
In the case of asset-backed issuers certain information comprehended within the
definition of ABS informational and computational material is analogous to the
term of securities and is therefore issuer information. For example, we would
expect that the following categories of such material, which are derived from
the definition of ABS informational and computational materials, are generally
issuer information:
(1) STRUCTURAL INFORMATION-factual information regarding the
asset-backed securities being offered and the structure and basic parameters of
the securities, such as the number of classes, seniority, payment priorities,
terms of payment, the tax, ERISA or other legal conclusions of counsel, and
descriptive information relating to each class (e.g., principal amount, coupon,
minimum denomination, price or anticipated price, yield, weighted average life,
credit enhancements, anticipated ratings, and other similar information relating
to the proposed structure of the offering);
(2) COLLATERAL INFORMATION-factual information regarding the pool
assets underlying the asset-backed securities, including origination,
acquisition and pool selection criteria, information regarding any prefunding or
revolving period applicable to the offering, information regarding significant
obligors, data regarding the contractual and related characteristics of the
underlying pool assets (e.g., weighted average coupon, weighted average
maturity, delinquency and loss information and geographic distribution) and
other factual information concerning the parameters of the asset pool
appropriate to the nature of the underlying assets, such as the type of assets
comprising the pool and the programs under which the loans were originated;
(3) KEY PARTIES INFORMATION-identification of key parties to the
transaction, such as servicers, trustees, depositors, sponsors, originators and
providers of credit enhancement or other support, including information about
any such party;
(4) STATIC POOL DATA-static pool data, as referenced in Item 1105 of
Regulation AB [17 CFR 229.1105], such as for the sponsor's and/or servicer's
portfolio, prior transactions or the asset pool itself; and
(5) ISSUER COMPUTATIONAL MATERIAL-to the extent that the information is
provided by the issuer, depositor, affiliated depositor, or sponsor, statistical
information displaying for a particular class of asset-backed securities the
yield, average life, expected maturity, interest rate sensitivity, cash flow
characteristics, total rate of return, option adjusted spread or other financial
or statistical information related to the class or classes under specified
prepayment, interest rate, loss or other hypothetical scenarios. (Where such
information is prepared by an underwriter or dealer, it is not issuer
information, even when derived from issuer information.)
Exhibit C
Underwriters' Information
