EXHIBIT 1.1
NATIONAL CITY MORTGAGE CAPITAL LLC
Mortgage Pass-Through Certificates, Series 2008-1
UNDERWRITING AGREEMENT
----------------------
February 26, 2008
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
NatCity Investments, Inc.
0 Xxxxxxxx Xxxxx
000 Xxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
National City Mortgage Capital LLC, a Delaware limited liability
company (the "Company"), proposes to sell on the Closing Date (as defined below)
to X.X. Xxxxxx Securities Inc. ("X.X. Xxxxxx") and NatCity Investments, Inc.
("NatCity" and together with X.X. Xxxxxx, the "Underwriters") Mortgage
Pass-Through Certificates, Series 2008-1, Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-R, Class 1-B-1, Class 1-B-2, Class 1-B-3, Class 2-A-1, Class 2-A-3,
Class 2-A-4, Class 2-A-5, Class 2-IO, Class 2-B-1, Class 2-B-2 and Class 2-B-3
Certificates (collectively, the "Certificates"), having the aggregate initial
principal amounts and pass-through rates set forth on Exhibit A attached hereto.
The Certificates, together with the Class 2-A-2, Class 2-PO, Class 1-B-4, Class
1-B-5, Class 1-B-6, Class 2-B-4, Class 2-B-5 and Class 2-B-6 Certificates of the
same series, will evidence the entire beneficial interest in the Trust Fund (as
defined in the Pooling and Servicing Agreement referred to below) consisting
primarily of a pool (the "Pool") of certain one- to four-family first lien
mortgage loans (the "Mortgage Loans") as described in the Prospectus Supplement
(as hereinafter defined) to be sold by the Company. National City Mortgage Co.
("NCMC") is the seller and servicer of the Mortgage Loans.
Only the Class 1-A-1, Class 1-A-2, Class 1-A-3, Class 1-A-R, Class
1-B-1, Class 1-B-2, Class 1-B-3, Class 2-A-1, Class 2-A-3, Class 2-A-4, Class
2-A-5, Class 2-IO, Class 2-B-1, Class 2-B-2 and Class 2-B-3 Certificates
(collectively, the "Underwritten Certificates") are being purchased by the
Underwriters, and the Underwriters are purchasing only the Underwritten
Certificates set forth opposite their names in Exhibit A attached hereto, except
that the amounts purchased by the Underwriters may change in accordance with
Section 9 of this Agreement.
The Certificates will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated February 28, 2008
among the Company, as depositor, NCMC, as servicer and mortgage loan seller, and
Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"). The Certificates are
described more fully in the Base Prospectus and the Prospectus Supplement (each
as hereinafter defined) which the Company has furnished to the Underwriters.
This Underwriting Agreement is referred to herein as this "Agreement."
The Certificates will evidence fractional undivided interests in the
trust fund (the "Trust") formed pursuant to the Pooling and Servicing Agreement.
The assets of the Trust will consist primarily of two pools of fixed and
adjustable rate, fully amortizing mortgage loans secured by first liens on
single-family residential properties. A form of the Pooling and Servicing
Agreement has been filed as an exhibit to the Registration Statement.
Section 1. Representations, Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with, each
Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-147919) on Form
S-3 for the registration under the Securities Act of 1933, as amended (the
"Securities Act"), of Mortgage Pass-Through Certificates (issuable in series),
including the Underwritten Certificates, which registration statement has become
effective and still is effective as of the date hereof. The Company proposes to
file with the Commission pursuant to Rule 424(b) under the rules and regulations
of the Commission under the Securities Act a supplement, dated February 27, 2008
(the "Prospectus Supplement"), to the prospectus, dated January 25, 2008 (the
"Base Prospectus"), relating to the Underwritten Certificates and the method of
distribution thereof. Such registration statement, including exhibits thereto
and any information incorporated by reference therein, as amended at the date
hereof, is hereinafter called the "Registration Statement"; and the Base
Prospectus and the Prospectus Supplement and any information incorporated by
reference therein, together with any amendment thereof or supplement thereto
authorized by the Company prior to the Closing Date for use in connection with
the offering of the Underwritten Certificates, are hereinafter called the
"Prospectus." The Commission has not issued any order preventing or suspending
the use of the Prospectus or the effectiveness of the Registration Statement and
no proceedings for such purpose are pending or, to the Company's knowledge,
threatened by the Commission. There are no contracts or documents of the Company
that are required to be filed as exhibits to the Registration Statement pursuant
to the Securities Act or the Regulations which have not been so filed or
incorporated by reference therein on or prior to the effective date of the
Registration Statement. The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied with respect to the Company
and the Registration Statement.
(b) The Registration Statement, as of its effective date, conformed,
and the Prospectus, as of the date of the Prospectus Supplement, will conform in
all material respects to the requirements of the Securities Act and the rules
and regulations of the Commission thereunder applicable to such documents as of
such respective dates; and the Registration Statement, as of its effective date,
did not contain any untrue statement of a material fact and did not omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading and, the Prospectus and the Designated Static
Pool Information, taken together, as of the date of the Prospectus Supplement,
and as of the Closing Date (as defined in Section 3 below) does not and will not
contain an untrue statement of a material fact and will 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; provided, however,
that the Company makes no representation or warranty as to any information
contained in or omitted from the Registration Statement or the Prospectus or any
revision or amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of the Underwriters specifically for use in connection with the preparation of
the Prospectus or any revision or amendment thereof or supplement thereto, which
information is identified on Exhibit C attached hereto (the "Underwriter
Information"). "Designated Static Pool Information" shall mean the static pool
information referred to in the Prospectus under the caption "Static Pool
Information" but deemed to be excluded from the Registration Statement and the
Prospectus pursuant to Item 1105(d) of Regulation AB under the Securities Act.
The Issuer Free Writing Prospectuses (as defined in Section 5.2), as amended or
supplemented, when considered with the Base Prospectus and the Static Pool
Information, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, in either case at the
Time of Sale to the applicable investor, when considered in conjunction with the
Time of Sale Information. As used in this Agreement, "Time of Sale" means, as to
any investor in the Certificates, the time at which such investor enters into a
Contract of Sale (as defined in Section 5.3) for the Certificates, or if such
Contract of Sale is subsequently terminated and a new Contract of Sale is
entered into by mutual agreement between such investor and the applicable
Underwriter in the form attached hereto as Exhibit C or otherwise in a manner
sufficient to constitute a reformation of the contract within the contemplation
of Section IV.2.c of Securities Act Release No. 33-8591, such time at which the
new Contract of Sale is entered into, and "Time of Sale Information" means all
information with respect to the offering of the Underwritten Certificates which
has been conveyed to an investor at the Time of Sale to such investor.
(c) The documents incorporated by reference in the Registration
Statement, when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents become
effective or are filed with the Commission, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder.
(d) The Company is not, and on the date on which the first bona fide
offer of the Underwritten Certificates is made will not be, an "ineligible
issuer," as such term is defined in Rule 405 under the Securities Act.
(e) Except as disclosed in an Issuer Free Writing Prospectus or the
Prospectus Supplement, there are no actions, proceedings or investigations
pending with respect to which the Company has received service of process before
or threatened by any court, administrative agency or other tribunal to which the
Company is a party or of which any of its properties is the subject (A) which,
if determined adversely to the Company, would have a material adverse effect on
the business or financial condition of the Company, (B) asserting the invalidity
of the Pooling and Servicing Agreement or the Certificates, (C) seeking to
prevent the issuance of the Certificates or the consummation by the Company of
any of the transactions contemplated by the Pooling and Servicing Agreement or
(D) which might materially and adversely affect the performance by the Company
of its obligations under, or the validity or enforceability of the Pooling and
Servicing Agreement or the Certificates.
(f) The Company has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware and has the requisite power to own its properties and to conduct its
business as presently conducted by it. The Company has duly complied with, and
its assets, business operations and leaseholds are in compliance in all material
respects with, the provisions of federal, state and local laws, rules,
regulations and orders applicable to it and its assets or the conduct of its
business and it possesses all required licenses, permits, authorizations and
approvals to the extent material to the conduct of its businesses, the ownership
of its properties and its execution, delivery and performance of this Agreement
and the Pooling and Servicing Agreement.
(g) This Agreement has been, and the Pooling and Servicing
Agreement, when executed and delivered as contemplated hereby and thereby will
have been, duly authorized, executed and delivered by the Company, and this
Agreement constitutes, and the Pooling and Servicing Agreement, when executed
and delivered as contemplated herein, will constitute a legal, valid and binding
instrument enforceable against the Company in accordance with its terms,
subject, as to enforceability, to the effect of bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance and similar laws relating to or
affecting creditors' rights generally, and court decisions with respect thereto,
and to the application of equitable principles in any proceeding, whether at law
or in equity, and with respect to rights of indemnity hereunder and under the
Pooling and Servicing Agreement, limitations of public policy under applicable
securities law.
(h) The execution, delivery and performance by the Company of the
Pooling and Servicing Agreement, the consummation of the transactions
contemplated hereby and thereby, and the issuance and delivery of the
Certificates do not and will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company is a party, by which the Company is bound or to which any of
the properties or assets of the Company or any of its subsidiaries is subject,
which breach or default would have a material adverse effect on the business,
operations or financial condition of the Company or its ability to perform its
obligations under the Pooling and Servicing Agreement, nor will such actions
result in any violation of the provisions of the certificate of formation or
operating agreement of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties or assets, which violation would have a
material adverse effect on the business, operations or financial condition of
the Company or its ability to perform its obligations under the Pooling and
Servicing Agreement.
(i) The direction by the Company to the Trustee to execute,
authenticate, issue and deliver the Certificates will have been duly authorized
by the Company and, assuming the Trustee has been duly authorized to undertake
such actions, when executed, authenticated, issued and delivered by the Trustee
in accordance with the Pooling and Servicing Agreement, the Certificates will be
validly issued and outstanding and the holders of the Certificates will be
entitled to the rights and benefits of the Certificates as provided by the
Pooling and Servicing Agreement.
(j) No consent, approval, authorization, order, registration,
filings or qualification of or with any court or governmental agency or body of
the United States is required for the issuance of the Certificates and the sale
of the Underwritten Certificates to the Underwriters, or the consummation by the
Company of the other transactions contemplated by the Pooling and Servicing
Agreement, except (i) such consents, approvals, authorizations, filings,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Underwritten Certificates by the Underwriters or as have been obtained and (ii)
such recordations of assignments of the Mortgage Loans pursuant to the Pooling
and Servicing Agreement (to the extent required thereunder) as have not yet been
completed.
(k) Immediately prior to the transfer of the Mortgage Loans
contemplated by the Pooling and Servicing Agreement, the Company (i) will hold
good title to the Mortgage Loans conveyed by the Company, subject to no liens,
mortgages, charges, encumbrances or other security interest (collectively,
"Liens") that will not be released simultaneously with such transfer; (ii) will
not have assigned to any person (other than the Trustee) any of its right, title
or interest in the Mortgage Loans and (iii) will have the power and authority
under all governmental and regulatory bodies having jurisdiction over the
ownership of the Mortgage Loans to sell the Mortgage Loans to the Trustee and to
sell the Underwritten Certificates to the Underwriters. Upon execution and
delivery of the Pooling and Servicing Agreement by the Trustee, the Trust will
have acquired all of the Company's right, title and interest in and to the
Mortgage Loans. Upon delivery to the Underwriters of the Underwritten
Certificates against payment therefor, the Underwriters will have good title to
the Underwritten Certificates free of any Liens.
(l) As of the Closing Date the Underwritten Certificates will
conform in all material respects to the description thereof contained in the
Prospectus and the representations and warranties of the Company in the Pooling
and Servicing Agreement will be true and correct in all material respects.
(m) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of the Pooling and Servicing Agreement
and the Certificates have been paid or will be paid at or prior to the Closing
Date.
(n) Since the respective dates as of which information is given in
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, earnings,
affairs, regulatory situation or business prospects of the Company, whether or
not arising in the ordinary course of business, and (B) there have been no
transactions entered into by the Company that are material and have not been
disclosed, other than those in the ordinary course of business.
(o) Any certificate signed by an officer of the Company and
delivered to the Underwriters or counsel for the Underwriters in connection with
an offering of the Underwritten Certificates shall be deemed to be a
representation and warranty as to the matters covered thereby to each person to
whom the representations and warranties in this Section 1.1 are made.
(p) As of the date of delivery, all information provided in writing
to the Underwriters by the Company in connection with the issuance and sale of
the Underwritten Certificates is true and correct in all material respects or,
if there is any material error in any such information, the Company has promptly
provided corrected information to the Underwriters.
(q) The Company hereby makes to the Underwriters the
representations, warranties and covenants made by the Company in the Pooling and
Servicing Agreement, as applicable, as of the date of the execution and delivery
of such agreement, and hereby incorporates each such representation, warranty
and covenant into this Agreement for the benefit of the Underwriters as if set
forth herein.
1.2 NCMC represents and warrants to, and agrees with, the
Underwriters as of the date hereof that:
(a) As of the date thereof and as of the Closing Date, the
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
(b) NCMC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Ohio and is duly authorized and
qualified to transact any and all business contemplated by this Agreement. NCMC
has not been known as or used any other corporate name or any fictitious or
trade names, except as was required to conduct business in a state other than
its state of formation, in which case it used a name substantially similar to
its name. NCMC has duly complied with, and its assets, business operations and
leaseholds are in compliance in all material respects with, the provisions of
federal, state and local laws, rules, regulations and orders applicable to it
and its assets or the conduct of its business and it possesses all required
licenses, permits, authorizations and approvals to the extent material to the
conduct of its businesses, the ownership of its properties and its execution,
delivery and performance of this Agreement and the Pooling and Servicing
Agreement.
(c) Except as disclosed in any Issuer Free Writing Prospectus or the
Prospectus Supplement, there are no actions, proceedings or investigations
pending with respect to which NCMC has received service of process before or
threatened by any court, administrative agency or other tribunal to which NCMC
is a party or of which any of its properties is the subject (A) which, if
determined adversely to NCMC, would have a material adverse effect on the
business or financial condition of NCMC, (B) asserting the invalidity of the
Pooling and Servicing Agreement or the Certificates, (C) seeking to prevent the
issuance of the Certificates or the consummation by NCMC of any of the
transactions contemplated by the Pooling and Servicing Agreement or (D) which
might materially and adversely affect the performance by NCMC of its obligations
under, or the validity or enforceability of, the Pooling and Servicing Agreement
or the Certificates.
(d) The execution and delivery by NCMC of this Agreement and the
Pooling and Servicing Agreement are within the corporate power of NCMC and have
been duly authorized by all necessary corporate action on the part of NCMC and
this Agreement constitutes, and the Pooling and Servicing Agreement, when
executed and delivered as contemplated herein, will constitute a legal, valid
and binding instrument enforceable against NCMC in accordance with its terms,
subject, as to enforceability, to the effect of bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance and similar laws relating to or
affecting creditors' rights generally, and court decisions with respect thereto,
and to the application of equitable principles in any proceeding, whether at law
or in equity, and with respect to rights of indemnity hereunder and under the
Pooling and Servicing Agreement, limitations of public policy under applicable
securities law.
(e) The execution, delivery and performance by NCMC of the Pooling
and Servicing Agreement, and the consummation of the transactions contemplated
hereby and thereby, and the issuance and delivery of the Certificates do not and
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which NCMC is a party, by which
NCMC is bound or to which any of the properties or assets of NCMC or any of its
subsidiaries is subject, which breach or violation would have a material adverse
effect on the business, operations or financial condition of NCMC or its ability
to perform its obligations under Pooling and Servicing Agreement, nor will such
actions result in any violation of the provisions of any organizational document
of NCMC or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over NCMC or any of its
properties or assets, which breach or violation would have a material adverse
effect on the business, operations or financial condition of NCMC or its ability
to perform its obligations under the Pooling and Servicing Agreement.
(f) This Agreement and the Pooling and Servicing Agreement have been
duly authorized, executed and delivered by NCMC.
(g) Assuming the Trustee has been duly authorized to undertake such
actions, when executed, authenticated, issued and delivered by the Trustee in
accordance with the Pooling and Servicing Agreement, the Certificates will be
validly issued and outstanding and the holders of the Certificates will be
entitled to the rights and benefits of the Certificates as provided by the
Pooling and Servicing Agreement.
(h) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance of the Certificates and the sale of the
Underwritten Certificates to the Underwriters, or the consummation by NCMC of
the other transactions contemplated by the Pooling and Servicing Agreement;
except (i) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Underwritten Certificates
by the Underwriters or as have been obtained and (ii) such recordations of
assignments of the Mortgage Loans pursuant to the Pooling and Servicing
Agreement (to the extent required thereunder) as have not yet been completed.
(i) Immediately prior to the assignment of the Mortgage Loans by
NCMC to the Company, NCMC will have good title to, and will be the sole owner
of, each Mortgage Loan free and clear of any pledge, mortgage, lien, security
interest or other encumbrance.
(j) As of the Cut-off Date, the Mortgage Loans will meet, in all
material respects, the eligibility criteria described in the Prospectus and will
conform to the descriptions thereof contained in the Prospectus.
(k) NCMC is not an "investment company" within the meaning of such
term under the 1940 Act and the rules and regulations of the Commission
thereunder.
(l) At the Closing Date, the Underwritten Certificates and the
Pooling and Servicing Agreement will conform in all material respects to the
descriptions thereof contained in the Prospectus.
(m) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of the Pooling and Servicing Agreement
and the Certificates have been paid or will be paid at or prior to the Closing
Date.
(n) Since the respective dates as of which information is given in
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, earnings,
affairs, regulatory situation or business prospects of NCMC, whether or not
arising in the ordinary course of business, and (B) there have been no
transactions entered into by NCMC that are material and have not been disclosed,
other than those in the ordinary course of business.
(o) Any certificate signed by an officer of NCMC and delivered to
the Underwriters or counsel for the Underwriters in connection with an offering
of the Underwritten Certificates shall be deemed to be a representation and
warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 1.2 are made.
(p) As of the date of delivery, all information provided in writing
to the Underwriters by NCMC in connection with the issuance and sale of the
Underwritten Certificates is true and correct in all material respects or, if
there is any material error in any such information, NCMC has promptly provided
corrected information to the Underwriters.
(q) NCMC hereby makes to the Underwriters the representations,
warranties and covenants made by NCMC in the Pooling and Servicing Agreement, as
applicable, as of the date of the execution and delivery of such agreement, and
hereby incorporates each such representations, warranties and covenants into
this Agreement for the benefit of the Underwriters as if set forth herein.
Section 2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the respective
percentage of the aggregate principal balance of the Underwritten Certificates
as of the Closing Date set forth opposite such Underwriter's name in Exhibit A
hereto, at the applicable purchase price set forth in Exhibit A hereto. There
will be added to the purchase price of the Underwritten Certificates an amount
equal to interest accrued thereon from February 1, 2008 to but not including the
Closing Date.
Section 3. Delivery and Payment. Delivery of and payment for the
Underwritten Certificates shall be made at the office of Cadwalader, Xxxxxxxxxx
& Xxxx LLP at 10:00 a.m., New York City time, on February 28, 2008, or such
later date as the Underwriters shall designate, which date and time may be
postponed by agreement among the Underwriters and the Company (such date and
time of delivery and payment for the Underwritten Certificates being herein
called the "Closing Date"). The Underwritten Certificates so delivered will,
unless otherwise specified, be initially represented by one or more certificates
registered in the name of Cede & Co., the nominee of The Depository Trust
Company ("DTC"). The interests of the beneficial owners of the Underwritten
Certificates will, unless otherwise specified, be represented by book entries on
the records of DTC and participating members thereof. Definitive Underwritten
Certificates will be available only, unless otherwise specified, under the
limited circumstances specified in the Pooling and Servicing Agreement.
Section 4. Offering by Underwriters.
4.1 It is understood that the Underwriters propose to offer the
Underwritten Certificates for sale as set forth in the Prospectus and each
Underwriter agrees that all such offers and sales by such Underwriter shall be
made in compliance with all applicable laws and regulations. Each Underwriter
will not offer, sell or otherwise distribute the Underwritten Certificates
(except for the sale thereof in exempt transactions) in any state in which the
Underwritten Certificates are not exempt from registration under state
securities laws or Blue Sky laws (except where the Underwritten Certificates
will have been qualified for offering and sale at the direction of the
Underwriters under such state securities laws or Blue Sky laws). In connection
with such offering(s), each Underwriter agrees to provide the Company with
information related to the offer and sale of the Underwritten Certificates that
is reasonably requested by the Company, from time to time (but not in excess of
three years from the Closing Date), and necessary for complying with its tax
reporting obligations, including, without limitation, the issue price of the
Certificates.
4.2 Each Underwriter agrees that it will not sell or transfer any
Underwritten Certificate or interest therein in the initial sale or transfer of
such Underwritten Certificate by such Underwriter in an amount less than the
minimum denomination for such Underwritten Certificate to be set forth in the
Prospectus Supplement.
4.3 Each Underwriter agrees that (i) if it delivers to an investor
the Prospectus in portable document format ("PDF"), upon such Underwriter's
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 Company any Underwriter Free Writing Prospectuses
(as defined in Section 5.1), or portions thereof, which the Company is required
to file with the Commission in electronic format and will use reasonable efforts
to provide to the Company 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 Company, in its sole discretion, waives such
requirements.
4.4 Each Underwriter covenants with the Company that after the final
Prospectus is available it shall not distribute any written information
concerning the Underwritten Certificates to a prospective investor unless such
information is preceded or accompanied by the final Prospectus. It is understood
and agreed that the use of written information in accordance with the preceding
sentence is not a Free Writing Prospectus and is not otherwise restricted or
governed in any way by this Agreement.
Section 5. Offering Communications; Free Writing Prospectuses.
5.1 Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Securities Act, neither the Company nor the
Underwriters shall convey or deliver any written communication, as defined in
Rule 405 under the Securities Act (a "Written Communication"), to any person in
connection with the initial offering of the Underwritten Certificates, unless
such Written Communication (i) is made in reliance on and in conformity with
Rule 134 under the Securities Act, (ii) constitutes a prospectus satisfying the
requirements of Rule 430B under the Securities Act or (iii) constitutes a "free
writing prospectus," as defined in Rule 405 under the Securities Act (a "Free
Writing Prospectus"). Notwithstanding anything to the contrary contained in this
Agreement, without the prior written consent of the Company, which may be
withheld in its sole discretion, the Underwriters shall not convey or deliver in
connection with the initial offering of the Underwritten Certificates, any Free
Writing Prospectus unless such Free Writing Prospectus contains only ABS
Informational and Computational Material, as defined in Item 1101(a) of
Regulation AB under the Securities Act ("ABS Informational and Computational
Material"); provided, however, that any such Free Writing Prospectus may also
contain a column showing the status of subscriptions for and allotments of the
Certificates. The Underwriters shall not convey or deliver any ABS Informational
and Computational Material in reliance on Rules 167 and 426 under the Securities
Act, unless consented to or requested by the Company. Any Free Writing
Prospectus prepared by or on behalf of an Underwriter is referred to as an
"Underwriter Free Writing Prospectus."
5.2 The Company shall deliver to the Underwriters (i) a Free Writing
Prospectuses which contains general information about the offering, including
the basic senior/subordinate structure of the Certificates (excluding the
subdivision of the senior classes into tranches) and the publicly offered
subordinated Certificates, to the extent known by the Company, the expected
parameters of the mortgage pool, risk factors applicable to Mortgage Loans of
the type included in the mortgage pool, the identity of and material information
about transaction parties known to the Company, the material tax and ERISA
treatment of the Certificates and whether the Certificates will be "mortgage
related securities" as defined in Section 3(a)(41) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and which contains a hyperlink to
the Base Prospectus most recently filed by the Company with the Commission and a
hyperlink to the portion of the Company's static pool website containing static
pool information (such information, the "Applicable Static Pool Information")
with respect to the series of Certificates (as determined by the Company) and
(ii) a term sheet, dated February 11, 2008, relating to the subdivision of the
senior classes into tranches (each, an "Issuer Free Writing Prospectus").
5.3 The Company will file any Issuer Free Writing Prospectus with
the Commission, and the Underwriters shall not convey or deliver any Issuer Free
Writing Prospectus to any person or entity until the Company has notified the
Underwriters that it has completed such filing. Thereafter, any Issuer Free
Writing Prospectus may be used by the Underwriters solely in connection with the
marketing of the Certificates to institutional investors; provided however, each
Underwriter shall not enter into any "contract of sale" with any investor,
within the meaning of Rule 159 under the Securities Act (a "Contract of Sale"),
with respect to any Certificates, unless prior to the Time of Sale to each
investor in the Certificates, such Underwriter shall have delivered to such
investor the Issuer Free Writing Prospectuses, together with any amendment or
supplement thereto supplied by the Company to such Underwriter sufficiently
prior to the Time of Sale to such investor to reasonably permit delivery thereof
by such Underwriter to such investor. Notwithstanding the foregoing, after the
final Prospectus is available to an Underwriter, such Underwriter shall not
enter into any Contract of Sale with respect to the Certificates unless the
Underwriter has delivered to the related investor a copy of the final
Prospectus.
5.4 Each Underwriter shall deliver to the Company each Underwriter
Free Writing Prospectus prepared by it that contains any "issuer information,"
as defined in Rule 433(h) under the Securities Act and footnote 271 of
Securities Act Release No. 33-8591 ("Issuer Information") if such Underwriter
Free Writing Prospectus or the portion thereof consisting of Issuer Information
is required to be filed by the Company with the Commission pursuant to Rule 433
under the Securities Act ("Rule 433").
5.5 Any Underwriter Free Writing Prospectus that is required to be
delivered pursuant to Section 5.4 shall be delivered by the applicable
Underwriter to the Company no later than two business days prior to the due date
for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act;
provided however, that if such Underwriter Free Writing Prospectus contains any
information other than ABS Informational and Computational Material, it shall
instead be delivered by the applicable Underwriter to the Company not later than
two business days prior to the date of first use of such Free Writing
Prospectus.
5.6 Not later than one business day after the Underwriters have
determined the final structure of all classes of Certificates, and in no event
later than the fourth business day preceding the due date for filing the final
Prospectus pursuant to Rule 424(b) under the Securities Act, the Underwriters
shall prepare and deliver to the Company a description of the final structure of
the Certificates.
5.7 To facilitate the filing thereof by the Company, each
Underwriter shall provide the Issuer Information contained in any Underwriter
Free Writing Prospectus prepared by it that is required to be delivered to the
Company pursuant to Section 5.4 or Section 5.6 in a separate document in
accordance with Section 4.3 from the portion of such Underwriter Free Writing
Prospectus which contains information other than Issuer Information.
5.8 Each Underwriter represents and warrants to the Company that the
Underwriter Free Writing Prospectuses required to be furnished to the Company by
it pursuant to Section 5.4 or Section 5.6 will constitute all Underwriter Free
Writing Prospectuses of the type described therein that were furnished to
prospective investors by such Underwriter in connection with its offer and sale
of the Certificates.
5.9 Each Underwriter represents and warrants to the Company that
each Underwriter Free Writing Prospectus provided by it to an investor in the
Underwritten Certificates did not, as of the Time of Sale to any prospective
investor to which such Underwriter Free Writing Prospectus was conveyed, include
any untrue statement of a material fact or omit any material fact necessary to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading when considered in conjunction with the remaining
Time of Sale Information; provided however, such Underwriter makes no
representation or warranty to the extent such misstatements or omissions were
the result of any misstatements in or omissions from the Mortgage Loan Data
supplied by the Company to the Underwriters which misstatements or omissions
were not corrected by information subsequently supplied by the Company to the
Underwriters sufficiently prior to the Time of Sale to the applicable investor
to reasonably permit the delivery thereof by such Underwriter to such investor
or, to the extent that such misstatements are a substantial restatement in all
material respects of a misstatement made in the Issuer Free Writing Prospectuses
or such omissions are the result of omission from the Issuer Free Writing
Prospectuses which misstatements or omissions were not corrected by information
subsequently supplied by the Company sufficiently prior to the Time of Sale to
the applicable investor to reasonably permit delivery thereof by such
Underwriter to such investor.
5.10 Unless the Company determines that such filing is not required
under Rule 433, the Company agrees to file with the Commission, within the
applicable time periods specified in Rule 433, the following:
(i) Any Issuer Free Writing Prospectus; and
(ii) Any Underwriter Free Writing Prospectus delivered by the
Underwriters to the Company pursuant to Section 5.4 or Section 5.6 or, at
the election of the Company, the portion of such Underwriter Free Writing
Prospectus which consists of Issuer Information.
5.11 Each Underwriter shall file with the Commission, within the
applicable time period specified in Rule 433, any Free Writing Prospectus that
is distributed by it or on behalf of it in a manner reasonably designed to lead
to its broad, unrestricted dissemination. Any access codes or passwords needed
by an Underwriter to complete a filing shall be provided by the Company.
5.12 The Company and each Underwriter agrees that any Free Writing
Prospectuses prepared by it shall contain substantially the following legend and
may contain any other additional legends agreed to between the Company and the
Underwriters:
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
depositor has filed with the SEC for more complete information about
the depositor and this offering. You may get these documents for
free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the
prospectus if you request it by calling toll-free 1-8[xx-xxx-xxxx]
5.13 Each Underwriter agrees to comply with the requirements of Rule
433 applicable to it, including, without limitation, the record retention
requirements therein.
5.14 Consistent with the manner in which written records are
maintained for its own purposes, each Underwriter agrees to keep and maintain,
for a period of not less than three years following the date of initial issuance
of the Underwritten Certificates, written records documenting, as to each
investor in Underwritten Certificates, the Time of Sale and the date on which
each Issuer Free Writing Prospectus and each Underwriter Free Writing Prospectus
was conveyed to such investor.
5.15 In the event of any litigation or written notice of potential
litigation against the Company or any of its affiliates with respect to the
Underwritten Certificates, each Underwriter shall, upon the request of the
Company, make available to the Company copies of all records required to be
maintained by it pursuant to Section 5.14 and any Free Writing Prospectus
required to be retained by it pursuant to Section 5.13.
5.16 (i) Each Underwriter will not enter into, and each Underwriter
will obligate in writing each dealer to whom it sells any Underwritten
Certificates (which obligation may be in the form of a trade stipulation and
which, in any event, shall name the Company as an intended third party
beneficiary) not to enter into, any Contract of Sale with respect to the
Underwritten Certificates with any investor other than an institutional
investor, unless such Underwriter or such dealer has delivered to such investor
a copy of the final Prospectus.
(ii) Each Underwriter shall not enter into any Contract of Sale with
respect to the Underwritten Certificates with any institutional investor
unless such Underwriter complies with the prospectus delivery and notice
requirements of Rules 172 and 173 under the Securities Act.
(iii)With respect to any Contract of Sale that was entered into
prior to the availability of the final Prospectus, the related Underwriter
shall use its best efforts to subsequently terminate such Contract of Sale
and enter into a new Contract of Sale by mutual agreement between the
applicable investor and the applicable Underwriter in which the Time of
Sale Information is based solely upon the information contained in the
final Prospectus (a "Final Reformed Contract"). The Final Reformed
Contract shall either be effected by (a) the entering into a reformation
with each investor, which reformation shall be in the form substantially
attached hereto as Exhibit C or (b) any other manner sufficient to
constitute a reformation of the contract within the contemplation of
Section IV.2.c of Securities Act Release No. 33-8591.
5.17 (i) In the event that the Company becomes aware that the Issuer
Free Writing Prospectuses, in conjunction with the Base Prospectus and the
Static Pool Information, contains any untrue statement of a material fact or
omits 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 Free Writing Prospectus, a "Defective Issuer Free Writing
Prospectus"), the Company shall notify the Underwriters thereof within one
business day after discovery and the Company shall prepare and deliver to the
Underwriters a Free Writing Prospectus which corrects the material misstatement
or omission in the Defective Issuer Free Writing Prospectus (such corrected
Issuer Free Writing Prospectus, a "Corrected Issuer Free Writing Prospectus").
(ii) In the event that an Underwriter becomes aware that, as of the
applicable Time of Sale to an investor in the Underwritten Certificates,
any Underwriter Free Writing Prospectus prepared by it or on behalf of it
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, when considered in conjunction with
the Time of Sale Information (such Free Writing Prospectus, a "Defective
Underwriter Free Writing Prospectus" and, together with a Defective Issuer
Free Writing Prospectus, a "Defective Free Writing Prospectus"), such
Underwriter shall notify the Company thereof within one business day after
discovery.
(iii)Each Underwriter shall, if requested by the Company:
(A) prepare a Free Writing Prospectus which corrects the
material misstatement in or omission from the Defective Underwriter
Free Writing Prospectus (such corrected Underwriter Free Writing
Prospectus, a "Corrected Underwriter Free Writing Prospectus" and,
together with a Corrected Issuer Free Writing Prospectus, a
"Corrected Free Writing Prospectus");
(B) deliver the Corrected Free Writing Prospectus to each
investor which received the Defective Free Writing Prospectus prior
to entering into a Contract of Sale;
(C) provide such investor with the following:
(1) adequate disclosure of the contractual arrangement;
(2) adequate disclosure of the investor's rights under
the existing Contract of Sale at the time termination is
sought;
(3) 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
(4) 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; and
(D) comply with any other requirements for reformation of the
original Contract of Sale described in Section IV.2.c of Securities
Act Release No. 33-8591.
5.18 Each Underwriter covenants with the Company that after the
final Prospectus is available, it shall not distribute any Written Communication
concerning the Certificates to a prospective investor unless such communication
is preceded or accompanied by the final Prospectus. The foregoing covenant shall
not apply to any secondary market offers or sales of the Certificates by such
Underwriter.
5.19 Each Underwriter agrees, upon request of the Company, to
provide to the Company any information within the control of such Underwriter
which the Company may reasonably request to enable the Company to timely and
accurately meet its disclosure and reporting obligations under the Securities
Act and the Exchange Act.
5.20 It is understood and agreed that all information provided by an
Underwriter to or through Bloomberg or Intex or similar entities for use by
prospective investors, or imbedded in any CDI file provided to prospective
investors, to the extent constituting a Free Writing Prospectus, shall be deemed
for all purposes hereof to be a Free Writing Prospectus not containing Issuer
Information.
Section 6. Agreements. The Company agrees with the Underwriters
that:
6.1 Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Certificates, the Company will furnish the
Underwriters a copy of each such proposed amendment or supplement.
6.2 The Company agrees to prepare the Prospectus in a form approved
by the Underwriters and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on the
second Business Day following the availability of such Prospectus to the
Underwriters; to make no further amendment or any supplement to the Registration
Statement or to either Prospectus prior to the Closing Date except as permitted
herein; to advise the Underwriters, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed or
becomes effective prior to the termination of the offering of the Underwritten
Certificates or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Underwriters or their counsel with copies thereof
without charge; to file promptly all reports required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required by law in connection with the offering or
sale of the Underwritten Certificates; and for so long as delivery of a
prospectus is required by law, to promptly advise the Underwriters of its
receipt of notice of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution of, or to the
knowledge of the Company the threatening of, any proceeding for such purpose, or
of: (i) any order preventing or suspending the use of a Prospectus; (ii) the
suspension of the qualification of the Underwritten Certificates for offering or
sale in any jurisdiction; (iii) the initiation of or threat of any proceeding
for any such purpose; or (iv) any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information. In the event of the issuance of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending any such qualification, the
Company promptly shall use its best efforts to obtain the withdrawal of such
order by the Commission.
6.3 If, during the period after the first date of the public
offering of the Certificates in which a prospectus relating to the Certificates
is required to be delivered under the Securities Act, any event occurs as a
result of which it is necessary to amend or supplement the Prospectus, as then
amended or supplemented, in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it shall be necessary to amend or supplement the Prospectus to
comply with the Securities Act or the rules and regulations of the Commission
thereunder, the Company promptly will prepare and furnish, at its own expense
(unless necessary to correct a misstatement or omission in the Underwriter
Information), to the Underwriters, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law.
6.4 The Company will furnish to the Underwriters, without charge, a
copy of the Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an underwriter or dealer may be required by the
Securities Act, as many copies of the Prospectus, any documents incorporated by
reference therein and any amendments and supplements thereto as the Underwriters
may reasonably request.
6.5 For so long as delivery of a prospectus is required by law in
connection with the offering or sale of the Underwritten Certificates, the
Company will file promptly with the Commission any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus that may, in the
judgment of the Company, be required by the Securities Act or requested by the
Commission. Neither the Underwriters' consent to nor their distribution of any
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 6.
6.6 The Company agrees to cause the Pooling and Servicing Agreement
to provide that so long as the Underwritten Certificates shall be outstanding,
the Trustee shall deliver to the Underwriters the monthly servicing report
delivered to the Trustee, the annual statement as to compliance delivered to the
Trustee under the Pooling and Servicing Agreement, the annual statement of a
firm of independent public accountants furnished to the Trustee under the
Pooling and Servicing Agreement, and the monthly reports furnished to the
Certificateholders, as soon as such statements are furnished to the Company.
6.7 The Company agrees to furnish the Underwriters and counsel for
the Underwriters, prior to filing with the Commission, the following documents
relating to the Underwritten Certificates: any post-effective amendment to the
Registration Statement or supplement to the Prospectus, or document incorporated
by reference in the Prospectus other than any periodic reports required to be
filed after the Closing Date.
6.8 The Company will use commercially reasonable efforts to arrange
for the qualification of the Certificates for sale under the laws of such
jurisdictions as the Underwriters may reasonably designate and will maintain
such qualification in effect so long as required for the initial distribution of
the Certificates. The Company will file or cause the filing of such statements
and reports as may be required by the laws of each jurisdiction in which the
Underwritten Certificates have been so qualified; provided, however, that the
Company shall not be required to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to
general or unlimited service of process in any jurisdiction where it is not now
so subject.
6.9 (a) The Company and NCMC agree to pay (i) the costs incident to
the authorization, issuance, sale and delivery of the Securities and any taxes
payable in connection therewith; (ii) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (iii) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), the
Prospectus and any amendment or supplement to the Prospectus or any document
incorporated by reference therein, all as provided in this Agreement; (iv) the
costs of reproducing and distributing this Agreement; (v) any fees charged by
securities rating agencies for rating the Underwritten Certificates; (vi) the
cost of accountants' comfort letters relating to the Prospectus (except as
otherwise agreed herein or in a separate letter agreement between the Company
and the Underwriters); and (vii) all other costs and expenses incidental to the
performance of the obligations of the Company and NCMC (including costs and
expenses of counsel to the Company and NCMC).
(b) The Underwriters shall be solely responsible for (i) the costs
and expenses of the Underwriters, including a portion of the costs and expenses
of their counsel and any Blue Sky or legal investment surveys, and (ii) any due
diligence expenses incurred by them, any transfer taxes on the Underwritten
Certificates that they may sell and the expenses of advertising any offering of
the Underwritten Certificates made by the Underwriters.
If this Agreement is terminated because of a breach by the Company
or NCMC of any covenant or agreement hereunder (other than the failure of any
closing condition set forth in Section 7.10 to be met), the Company and NCMC
shall cause the Underwriters to be reimbursed for all reasonable out-of-pocket
expenses, including fees and disbursements of counsel for the Underwriters.
6.10 Each Underwriter, severally, but not jointly, represents and
warrants to and agrees with the Company and NCMC that:
(a) As of the date hereof and as of the Closing Date, it has
complied with all of its obligations hereunder.
(b) As of the date hereof and as of the Closing Date:
(i) In relation to each Member State of the European Economic
Area which has implemented the Prospectus Directive (each, a
"Relevant Member State"), it has not made and will not make an offer
of Underwritten Certificates to the public in that Relevant Member
State prior to the publication of a prospectus in relation to the
Underwritten Certificates which has been approved by the competent
authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance
with the Prospectus Directive, except that it may, with effect from
and including the relevant implementation date, make an offer of
Underwritten Certificates to the public in that Relevant Member
State at any time:
(A) to legal entities which are authorized or regulated
to operate in the financial markets or, if not so authorized
or regulated, whose corporate purpose is solely to invest in
securities;
(B) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial
year; (2) a total balance sheet of more than (euro)43,000,000;
and (3) an annual net turnover of more than (euro)50,000,000,
as shown in its last annual or consolidated accounts; or
(C) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article
3 of the Prospectus Directive.
For the purposes of this representation, the expression an
"offer of Underwritten Certificates to the public" in relation to
any Underwritten Certificates in any Relevant Member State means the
communication in any form and by any means of sufficient information
on the terms of the offer and the Underwritten Certificates to be
offered so as to enable an investor to decide to purchase or
subscribe the Underwritten Certificates, as the same may be varied
in that Member State by any measure implementing the Prospectus
Directive in that Member State, and the expression "Prospectus
Directive" means the European Commission Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member
State.
(ii) It has only communicated or cause to be communicated and
will only communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the United Kingdom Financial Services and Markets Act
2000 (the "FSMA")) received by it in connection with the issue or
sale of the Underwritten Certificates in circumstances in which
Section 21(1) of the FSMA does not apply to the issuer.
(iii) It has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to the Underwritten Certificates in, from or otherwise
involving the United Kingdom.
Section 7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Certificates shall
be subject to the following conditions as of the Closing Date:
7.1 Prior to the Closing Date, (i) the Company shall have received
verbal confirmation of the effectiveness of the Registration Statement and (ii)
no stop order suspending the effectiveness of the Registration Statement shall
be in effect, and no proceedings for that purpose shall be pending or, to the
knowledge of the Company, threatened by the Commission; and the Prospectus
Supplement shall have been filed or transmitted for filing, by means reasonably
calculated to result in a filing with the Commission pursuant to Rule 424(b)
under the Securities Act. Any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus shall
have been complied with.
7.2 Since the date of this Agreement (or, if all Contracts of Sale
have been formed or reformed as of a later date, the date of the final
Prospectus), there shall have been no material adverse change (not in the
ordinary course of business) in the financial condition or business operations
of the Company or NCMC, which adverse change makes it impractical or inadvisable
to market the Underwritten Certificates.
7.3 The Company shall have delivered to the Underwriters a
certificate, dated the Closing Date, of the President, a Senior Vice President
or a Vice President of the Company to the effect that the signer of such
certificate has examined this Agreement, the Prospectus, the Pooling and
Servicing Agreement and various other closing documents, and that:
(a) the representations and warranties of the Company in this
Agreement and regarding the Company in the Pooling and Servicing Agreement
are true and correct in all material respects;
(b) the Company has complied, in all material respects, with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date; and
(c) no event shall have occurred that, with notice or the
passage of time, would constitute a default under the of the Pooling and
Servicing Agreement.
7.4 The Underwriters shall have received the opinion of Xxxxx Day,
special counsel for the Company, dated the Closing Date in form and substance
reasonably satisfactory to the Underwriters.
7.5 The Underwriters shall have received an in-house opinion of NCMC
and the Company regarding certain corporate matters in form and substance
reasonably satisfactory to the Underwriters.
7.6 The Underwriters shall have received from Cadwalader, Xxxxxxxxxx
& Xxxx LLP, counsel for the Underwriters, an opinion dated the Closing Date in
form and substance reasonably satisfactory to the Underwriters.
7.7 The Underwriters shall have received from Ernst & Young,
certified public accountants, a letter dated the date hereof and satisfactory in
form and substance to the Underwriters and the Underwriters' counsel, to the
effect that they have performed certain specified procedures, all of which have
been agreed to by the Underwriters, as a result of which they determined that
certain information of an accounting, financial, numerical or statistical nature
set forth in the Prospectus, or relating to the Mortgage Loans, agrees with the
records of the Company excluding any questions of legal interpretation.
7.8 The Underwritten Certificates shall be rated not lower than the
required ratings set forth on Exhibit A attached hereto, such ratings shall not
have been rescinded and no public announcement shall have been made that the
ratings of the Underwritten Certificates has been placed under review (otherwise
than for possible upgrading).
7.9 The Underwriters shall have received the opinion of Xxxxxx &
Bird LLP, counsel to the Trustee, dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriters.
7.10 The Underwriters shall have received the following additional
closing documents, in form and substance reasonably satisfactory to the
Underwriters and their counsel:
(a) the Pooling and Servicing Agreement and all documents
required thereunder, duly executed and delivered by each of the parties
thereto other than the Underwriters and their affiliates;
(b) an officer's certificate of an officer of NCMC, dated the
Closing Date, to the effect that the signer of such certificate has
examined this Agreement, the Prospectus, the Pooling and Servicing
Agreement and various other closing documents, and that:
(i) the representations and warranties of NCMC in this
Agreement and regarding NCMC in the Pooling and Servicing
Agreement are true and correct in all material respects;
(ii) NCMC has complied, in all material respects, with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied hereunder at or prior to the
Closing Date; and
(iii) no event shall have occurred that, with notice or
the passage of time, would constitute a default under the of
the Pooling and Servicing Agreement.
(c) [Reserved]
(d) a negative assurance letter of Cadwalader Xxxxxxxxxx &
Xxxx LLP with respect to the Prospectus;
(e) such opinions of Xxxxx Day, counsel to the Company, in
form reasonably satisfactory to the Underwriters, counsel for the
Underwriters, and the Rating Agencies as to such additional matters not
opined to in the opinion delivered pursuant to Section 7.4 above as shall
be required for the assignment of the ratings specified in the Prospectus
to the Underwritten Certificates;
(f) a negative assurance letter of Xxxxx Day with respect to
the Prospectus, reasonably satisfactory in form and substance to the
Underwriters and counsel for the Underwriters; and
(g) an officer's certificate of an officer of the Trustee,
dated as of the Closing Date, reasonably satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
7.11 All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters.
7.12 Subsequent to the execution and delivery of this Agreement none
of the following shall have occurred and be continuing as of the Closing Date:
(i) trading in securities generally on the New York Stock Exchange or NASDAQ
shall have been suspended or minimum prices shall have been established on
either of such exchanges or such market by the Commission, by such exchange or
by any other regulatory body or governmental authority having jurisdiction; (ii)
a banking moratorium shall have been declared by Federal or New York state
authorities; (iii) the United States shall have become engaged in material
hostilities, there shall have been an escalation of such hostilities involving
the United States or there shall have been a declaration of war by the United
States; (iv) a material disruption in settlement or clearing operations shall
occur; or (v) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets of the United States shall be
such) that is material and adverse and, in the case of any of the events
specified in clauses (i) through (v), either individually or together with any
other such event specified in clauses (i) through (v) makes it, in the
reasonable judgment of the Underwriters, impractical or inadvisable to market
the Underwritten Certificates.
7.13 [RESERVED].
The Company will furnish the Underwriters with conformed copies of
the above opinions, certificates, letters and such other documents or opinions
as the Underwriters or their counsel may reasonably request.
7.14 If any condition specified in this Section 7 shall not have
been fulfilled in all material respects, when and as required to be fulfilled,
this Agreement may be terminated by the Underwriters by notice to the Company at
any time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Subsections 6.9
and Section 8; provided, however, prior to the Underwriter exercising its right
to terminate the Agreement pursuant to this provision, with respect to any
failure of a condition set forth in any Subsection of this Section 7 (other than
Subsection 7.12), the Company shall have reasonable opportunity to cure such
noncompliance with such condition by no later than 11:00 AM on the Closing Date.
7.15 The Underwriters hereby agree that to the extent the provisions
of this Agreement conflict with any provisions of the Master Agreement Among
Underwriters, dated November 2001, between X.X. Xxxxxx and NatCity, the
provisions of this Agreement shall control.
Section 8. Indemnification and Contribution.
8.1 Each of the Company and NCMC agrees to indemnify and hold
harmless each Underwriter, each Underwriter's respective officers and directors
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages or liabilities, joint or
several, to which such Underwriter, its officers, directors or such controlling
person may become subject under the Securities Act, the Exchange Act, or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof, including but not limited to any loss, claim, expense, damage or
liability related to purchases and sales of the Underwritten Certificates))
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or in the
Prospectus, or in any revision or amendment thereof or supplement thereto, the
Designated Static Pool Information or the Issuer Information, or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (ii) if the related Contract of
Sale was not reformed in accordance with Section 5.16(iii), any untrue statement
or alleged untrue statement of a material fact contained in any Issuer Free
Writing Prospectus or in any preliminary or final quantitative data about the
Mortgage Loans ("Mortgage Loan Data") supplied by the Company to the
Underwriters, or (iii) if the related Contract of Sale was not reformed in
accordance with Section 5.16(iii), in the case of an Issuer Free Writing
Prospectus, the omission or alleged omission to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or (iv) in the case of the Mortgage Loan Data
delivered by the Company to the Underwriters, the omission or alleged omission
to include material data therein necessary to make the data therein not
misleading, in the case of (ii), (iii) or (iv), at the Time of Sale to the
applicable investor, when considered in conjunction with all other Time of Sale
Information, and provided that such misstatement or omission was not corrected
by information subsequently supplied by the Company to the Underwriters
sufficiently prior to the Time of Sale to such investor to reasonably permit the
delivery thereof by the applicable Underwriter to such investor, and the Company
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it or him in connection with investigating or defending
any such loss, claim, damage, xxxxxxxxx or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with the Underwriter Information.
This indemnity agreement will be in addition to any liability which the Company
or NCMC may otherwise have.
8.2 (i) Each Underwriter severally, but not jointly, agrees to
indemnify and hold harmless the Company, its officers who signed the
Registration Statement or any amendment thereof, its directors, and each person
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (i) to the same extent as the
foregoing indemnities from the Company to the Underwriters, but only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with the
Underwriter Information provided by such Underwriter or any revision or
amendment thereof or supplement thereto or (ii) insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) are based on, result from
or arise out of (A) any untrue statement or alleged untrue statement of a
material fact contained in any Underwriter Free Writing Prospectus, or any
omission or alleged omission to state in such Underwriter Free Writing
Prospectus a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading at the
Time of Sale to the applicable investor, when considered in conjunction with all
other Time of Sale Information; except to the extent that such untrue statements
or alleged untrue statements or omissions or alleged omissions are the result of
untrue statements in or omissions from the Issuer Free Writing Prospectuses or
any Mortgage Loan Data supplied by the Company to the Underwriters which, in any
case, were not corrected by information subsequently supplied by the Company to
the Underwriters sufficiently prior to the Time of Sale to the applicable
investor to reasonably permit the delivery thereof by such Underwriter to such
investor or (B) any failure by such Underwriter to deliver the Issuer Free
Writing Prospectuses or the final Prospectus, as the case may be, to the
applicable investor prior to the Time of Sale. This indemnity agreement will be
in addition to any liability which such Underwriter may otherwise have.
(ii) Each Underwriter (the "Indemnifying Underwriter") will
indemnify and hold harmless the other Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (the "Non-Indemnifying
Underwriter") from and against any and all losses, claims, damages or
liabilities, joint or several, to which the Non-Indemnifying Underwriter becomes
subject under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of a
material fact or the omission or alleged omission (when read in conjunction with
the Time of Sale Information) to state a material fact necessary in order to
make the statements, in the light of the circumstances under which they were
made, not misleading at the Time of Sale, contained in any Underwriter Free
Writing Prospectus prepared by, or on behalf of, or used or referred to by, such
Indemnifying Underwriter or (ii) the failure of such Indemnifying Underwriter,
to comply with any provisions in this Agreement, and agrees to reimburse such
Non-Indemnifying Underwriter, as incurred for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action, except to the extent such losses,
claims, damages or liabilities are caused by a misstatement or omission
resulting from an error or omission in the Issuer Information which was not
corrected by information subsequently supplied by the Company to any Underwriter
within a reasonable period of time prior to the Time of Sale. This agreement
will be in addition to any liability that any Underwriter may otherwise have.
8.3 In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either Section 8.1 or 8.2, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by the Underwriters, in the case of
parties indemnified pursuant to Section 8.1 and by the Company in the case of
parties indemnified pursuant to Section 8.2. The indemnifying party may, at its
option, at any time upon written notice to the indemnified party, assume the
defense of any proceeding and may designate counsel satisfactory to the
indemnified party in connection therewith provided that the counsel so
designated would have no actual or potential conflict of interest in connection
with such representation. Unless it shall assume the defense of any proceeding
the indemnifying party shall not be liable for any settlement of any proceeding,
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. If the indemnifying party assumes the defense of
any proceeding, it shall be entitled to settle such proceeding with the consent
of the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding
which have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, without the consent of the indemnified party.
8.4 If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8.1 or 8.2 hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities, in
such proportion as is appropriate to reflect not only the relative benefits
received by the Company or NCMC on the one hand and the Underwriters on the
other from the offering of the Certificates but also the relative fault of the
Company or NCMC on the one hand and of the Underwriters, on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company or NCMC on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Underwritten
Certificates (before deducting expenses) received by the Company or NCMC bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault of the indemnified party on the one hand and of the
indemnifying party on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnified party or by the indemnifying party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 8.4 are several in proportion to the
respective amount of Certificates they have purchased hereunder, and not joint.
8.5 The Company and each Underwriter agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the considerations referred to in Section 8.4 above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 8 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim except where the indemnified party is required to bear such
expenses pursuant to Section 8.4; which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party believes that it will be ultimately obligated to pay
such expenses. In the event that any expenses so paid by the indemnifying party
are subsequently determined to not be required to be borne by the indemnifying
party hereunder, the party which received such payment shall promptly refund the
amount so paid to the party which made such payment. Notwithstanding the
provisions of subsection 8.4 above or this subsection 8.5, no Underwriter shall
be required to contribute any amount in excess of the amount by which (i) the
total underwriting discounts and commissions and other fees received by such
Underwriter in connection with the offering of the Certificates exceeds (ii) the
amount of damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
8.6 The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Company and NCMC in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the
Underwriters or on behalf of the Underwriters or any person controlling an
Underwriter or by or on behalf of the Company and its directors or officers or
any person controlling the Company and (iii) acceptance of and payment for any
of the Underwritten Certificates.
8.7 NCMC agrees with the Underwriters, for the sole and exclusive
benefit of the Underwriters and each person who controls the Underwriters within
the meaning of either the Act or the Exchange Act and not for the benefit of any
assignee thereof or any other person or persons dealing with the Underwriters,
in consideration of and as an inducement to its agreement to purchase the
Certificates from the Company, to indemnify and hold harmless each Underwriter
against any failure by the Company to perform its obligations to the
Underwriters pursuant to Section 8.1 hereof.
Section 9. Defaulting Underwriter. If one of the Underwriters
participating in the public offering of the Underwritten Certificates shall fail
at the Closing Date to purchase the Underwritten Certificates that it is
obligated to purchase hereunder (the "Defaulted Securities"), then the
non-defaulting Underwriter shall have the right, within 24 hours thereafter, to
make arrangements for the non-defaulting Underwriter, 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. If, however,
the non-defaulting Underwriter has not completed such arrangements within such
24-hour period, then
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Underwritten
Certificates to be purchased pursuant to this Agreement, the non-defaulting
Underwriter named in this Agreement shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all such non-defaulting
Underwriter; or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Underwritten Certificates
to be purchased pursuant to this Agreement, this Agreement shall terminate,
without any liability on the part of the Company or any non-defaulting
Underwriter.
No action taken pursuant to this Section 9 shall relieve any
defaulting Underwriter from the liability with respect to any default of such
Underwriter under this Agreement.
In the event of a default by any Underwriter as set forth in this
Section 9, each of the non-defaulting Underwriters and the Company shall have
the right to postpone the Closing Date for a period not exceeding five Business
Days in order that any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements may be effected.
Section 10. Termination. This Agreement shall be subject to
termination by notice given to the Company, if the sale of the Certificates
provided for herein is not consummated because of any failure or refusal on the
part of the Company or NCMC to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company or NCMC shall be
unable to perform its obligations under this Agreement. The Underwriters may
terminate this Agreement immediately upon notice to the Company, at any time
prior to the Closing Date if the events set forth in Section 7.12 of this
Agreement shall occur and be continuing. If the Underwriters terminate this
Agreement in accordance with this Section 10, the Company will reimburse the
Underwriters for all reasonable out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been reasonably incurred by
it in connection with the proposed purchase and sale of the Certificates.
Section 11. Certain Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company, NCMC, any Underwriter or the officers of either the
Company, NCMC or any Underwriter set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by any Underwriter or on such
Underwriter's behalf or made by or on behalf of either NCMC or the Company or
any of their officers, directors or controlling persons, and will survive
delivery of and payment for the Certificates.
Section 12. Notices. All communications hereunder will be in writing
and effective only on receipt, and will be mailed, delivered or telegraphed and
confirmed to:
(a) in the case of the Underwriters:
NatCity Investments, Inc.
0 Xxxxxxxx Xxxxx, 000 Xxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Head of Structured Products Group
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxx
(b) in the case of the Company
National City Mortgage Capital LLC
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
(c) in the case of NCMC
National City Mortgage Co.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Section 13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and their successors and assigns, and no other person will have any right or
obligation hereunder.
Section 14. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
The parties hereto hereby submit to the non-exclusive jurisdiction
of the United States District Court for the Southern District of New York and
any court in the State of New York located in the City and County of New York,
and any appellate court from any thereof, in any action, suit or proceeding
brought against it or in connection with this Agreement or any of the related
documents or the transactions contemplated hereunder or for recognition or
enforcement of any judgment, and the parties hereto hereby agree that all claims
in respect of any such action or proceeding may be heard or determined in New
York State court or, to the extent permitted by law, in such federal court.
Section 15. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, which taken
together shall constitute one and the same instrument.
Section 16. No Fiduciary Duty. The Company and NCMC hereby
acknowledge and agree that (a) the purchase and sale of the Underwritten
Certificates pursuant to this Agreement is an arm's-length commercial
transaction between the Company and NCMC, on the one hand, and the Underwriters,
on the other, (b) in connection therewith and with the process leading to such
transaction, each Underwriter is acting solely as a principal and not as an
agent or fiduciary of the Company and NCMC, (c) no Underwriter has assumed an
advisory or fiduciary responsibility in favor of the Company or NCMC with
respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether any of the Underwriters has advised or are currently
advising the Company or NCMC on related or other matters) or any other
obligation to the Company or NCMC except the obligations expressly set forth in
this Agreement, (d) the engagement of the Underwriters in connection with the
offering is as independent contractors and not in any other capacity and (e) the
Company and NCMC have consulted their own legal and financial advisors to the
extent each have deemed appropriate. Furthermore, each of Company and NCMC
agrees that it is solely responsible for making its own judgments in connection
with the offering contemplated hereby.
[Remainder of Page Blank]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart of this Underwriting
Agreement, whereupon this letter and your acceptance shall represent a binding
agreement among the Company, NCMC and each Underwriter.
Very truly yours,
NATIONAL CITY MORTGAGE CAPITAL
LLC
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Secretary
NATIONAL CITY MORTGAGE CO.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
The foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
NATCITY INVESTMENTS, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
EXHIBIT A
Initial Principal Amount of Underwritten Certificates:
------------------------------------------------------
Initial
Principal
Amount or
Class Notional Amount Pass-Through Rate
-------------- ---------------- -----------------
Class 1-A-1 $115,131,000.00 (1)
Class 1-A-2 $6,753,000.00 (2)
Class 1-A-3 $115,131,000.00 (3)
Class 1-A-R $100.00 (2)
Class 1-B-1 $2,894,800.00 (2)
Class 1-B-2 $1,286,400.00 (2)
Class 1-B-3 $771,800.00 (2)
Class 2-A-1(4) $240,175,000.00 6.000%
Class 2-A-3(4) $157,994,000.00 6.000%
Class 2-A-4(4) $55,978,000.00 6.000%
Class 2-A-5(4) $26,203,000.00 6.000%
Class 2-IO $22,340,093.00 6.000%
Class 2-B-1 $3,011,000.00 6.000%
Class 2-B-2 $1,571,000.00 6.000%
Class 2-B-3 $655,000.00 6.000%
(1) For each distribution date occurring prior to and in November 2012,
interest will accrue on these certificates at a per annum rate equal to the
lesser of (i) the weighted average of the net mortgage interest rates of
the mortgage loans in loan group 1 and (ii) 5.750%. For each distribution
date occurring in and after December 2012, interest will accrue on these
certificates at a per annum rate equal to the net mortgage interest rates
of the mortgage loans in loan group 1.
(2) For each distribution date, interest will accrue on these certificates at a
per annum rate equal to the weighted average of the net mortgage interest
rates of the mortgage loans in loan group 1.
(3) For each distribution date occurring prior to and in November 2012,
interest will accrue on these certificates at a per annum rate equal to the
excess, if any, of (i) the weighted average of the net mortgage interest
rates of the mortgage loans in loan group 1 over (ii) 5.750%. For each
distribution date occurring in and after December 2012, the pass-through
rate on these certificates will be zero and these certificates will not be
entitled to any distributions of interest.
(4) Each of these classes is exchangeable, in combination with other classes or
individually as specified in the Prospectus Supplement, for certain other
class or classes of certificates. The principal amount shown for a class of
exchangeable REMIC certificates or exchangeable certificates represents the
approximate maximum initial class balance of such class.
X.X. Xxxxxx
Securities Inc.
(Principal Amount or NatCity Investments, Inc.
Notional Amount (Principal Amount or Notional Purchase Price
Class Purchased) Amount Purchased) Percentage (Net of Fees)
-------------- -------------------- ----------------------------- ------------------------
Class 1-A-1 $103,617,900.00 $11,513,100.00 [Intentionally Omitted]
Class 1-A-2 $6,077,700.00 $675,300.00 [Intentionally Omitted]
Class 1-A-3 $103,617,900.00 $11,513,100.00 [Intentionally Omitted]
Class 1-A-R $100.00 $0.00 [Intentionally Omitted]
Class 1-B-1 $2,605,320.00 $289,480.00 [Intentionally Omitted]
Class 1-B-2 $1,157,760.00 $128,640.00 [Intentionally Omitted]
Class 1-B-3 $694,620.00 $77,180.00 [Intentionally Omitted]
Class 2-A-1(4) $216,157,500.00 $24,017,500.00 [Intentionally Omitted]
Class 2-A-3(4) N/A - Exchangeable N/A - Exchangeable N/A - Exchangeable
Class 2-A-4(4) N/A - Exchangeable N/A - Exchangeable N/A - Exchangeable
Class 2-A-5(4) N/A - Exchangeable N/A - Exchangeable N/A - Exchangeable
Class 2-IO $20,106,083.70 $2,234,009.30 [Intentionally Omitted]
Class 2-B-1 $2,709,900.00 $301,100.00 [Intentionally Omitted]
Class 2-B-2 $1,413,900.00 $157,100.00 [Intentionally Omitted]
Class 2-B-3 $589,500.00 $65,500.00 [Intentionally Omitted]
Certificate Ratings:
--------------------
Class S&P Fitch Ratings
----------- --- -------------
Class 1-A-1 AAA AAA
Class 1-A-2 AAA AAA
Class 1-A-3 AAA AAA
Class 1-A-R AAA AAA
Class 2-A-1 AAA AAA
Class 2-A-3 AAA AAA
Class 2-A-4 AAA AAA
Class 2-A-5 AAA AAA
Class 2-IO AAA AAA
Class 1-B-1 AA AA
Class 1-B-2 A A
Class 1-B-3 BBB BBB
Class 2-B-1 AA AA
Class 2-B-2 A A
Class 2-B-3 BBB BBB
EXHIBIT B
UNDERWRITER INFORMATION
The Underwriters have advised the Depositor that they propose to
offer the Underwritten Certificates for sale from time to time in one or more
negotiated transactions or otherwise, at market prices prevailing at the time of
sale, at prices related to such market prices or at negotiated prices.
The Depositor has been advised by the Underwriters that they intend
to make a market in the Underwritten Certificates but have no obligation to do
so.
EXHIBIT C
To: [NAME OF INVESTOR]
Re: [NAME OF DEAL] (the "Securities") contract reformation request
In connection with your existing agreement with [Underwriter]
("[_____]") to purchase $_________ Class _____ of the Securities (the "Original
Contract"), [Underwriter] hereby notifies you that additional and/or changed
information ("New Information") is available with respect to the Securities from
that conveyed to you at or prior to the time of the Original Contract. The New
Information was conveyed to you in the final prospectus previously delivered to
you. In connection with the conveyance of the New Information, we wish to inform
you of your rights under the Original Contact and propose that we terminate the
Original Contract and enter into a new contract for the purchase of the
Securities based on the conveyance of the New Information to you.
Please note that under the Original Contract, you have the right to
purchase the Securities on [INVESTOR SETTLEMENT DATE] (the "Settlement Date") at
a price of _____ based on the information conveyed to you at the time of the
Original Contract. In light of the availability of the New Information, we would
request your agreement to terminate the Original Contract as of the date hereof
and your agreement to enter into a new contract as of [TODAY'S DATE] for the
purchase of the Securities on the Settlement Date at a price of _____ (the "New
Contract").
Please note that you may elect to terminate the Original Contract
and enter into the New Contract, in which case you will be obligated to purchase
the Securities on the Settlement Date under the terms of the New Contract.
Alternatively, you may elect to terminate the Original Contract and not enter
into the New Contract, in which case you will have no obligation to purchase the
Securities on the Settlement Date; or you may elect not to terminate the
Original Contract, in which case the Original Contract will continue to be in
effect for the purchase of the Securities on the Settlement Date.
Please indicate your election by replying to this e-mail no later
than [DAY PRIOR TO SETTLEMENT] with one of the following statements:
[_] We agree to terminate the Original Contract and enter into the
New Contract.
[_] We do not agree to terminate the Original Contract and enter
into the New Contract, and we elect to terminate the Original
Contract and not enter into the New Contract.
[_] We do not agree to, and we elect not to, terminate the Original
Contract.
We hope that you accept our proposal to terminate the Original
Contract and enter into the New Contract. Please contact [_______] at [( )____ ]
or by email at [__________] if you have any questions regarding this notice.
