EXHIBIT 1.1
NATIONAL CITY MORTGAGE CAPITAL LLC
Mortgage Pass-Through Certificates, Series 2008-1
UNDERWRITING AGREEMENT
October 3, 2008
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 NatCity Investments, Inc. (the "Underwriter") Mortgage Pass-Through
Certificates, Series 2008-1, Class 2-A-2 Certificates (collectively, the
"Underwritten Certificates"), having the aggregate initial principal amounts and
pass-through rates set forth on Exhibit A attached hereto. The Underwritten
Certificates, together with 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 1-B-4, Class 1-B-5, Class
1-B-6, Class 2-A-1, Class 2-A-3, Class 2-A-4, Class 2-A-5, Class 2-IO, Class
2-PO, Class 2-B-1, Class 2-B-2, Class 2-B-3, Class 2-B-4, Class 2-B-5 and Class
2-B-6 Certificates of the same series (collectively with the Underwritten
Certificates, the "Certificates"), evidence the entire beneficial interest in
the Trust (as defined 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 (as hereinafter defined) that were sold by the
Company.
The Certificates were issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated February 28, 2008,
among the Company, as depositor, National City Bank, (as successor in interest
to National City Mortgage Co. ("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, the Prospectus Supplement and the
Supplement (each as hereinafter defined) which the Company has furnished to the
Underwriter. This Underwriting Agreement is referred to herein as this
"Agreement."
The Certificates evidence fractional undivided interests in the
trust fund (the "Trust") formed pursuant to the Pooling and Servicing Agreement.
The assets of the Trust consist primarily of two pools of fixed and adjustable
rate, fully amortizing mortgage loans secured by first liens on single-family
residential properties. The Pooling and Servicing Agreement has been filed with
the Commission as an exhibit to the Registration Statement.
Section 1. Representations, Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with, the
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 October 7, 2008
(the "Supplement"), to the prospectus supplement, dated February 27, 2008 (the
"Prospectus Supplement"), and 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, collectively,
the Base Prospectus, the Prospectus Supplement and the 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 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 Supplement, as of the
Time of Sale 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 Underwriter 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. Any Issuer Free Writing Prospectuses (as defined in Section
5.2), as amended or supplemented, when considered with the Base Prospectus, the
Prospectus Supplement 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
Underwritten Certificates, the time at which such investor enters into a
Contract of Sale (as defined in Section 5.3) for the Underwritten 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
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, 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 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 and the Pooling and Servicing Agreement have been
duly authorized, executed and delivered by the Company, and this Agreement and
the Pooling and Servicing Agreement each 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
Underwritten 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) Assuming the Trustee has been duly authorized to execute,
authenticate and deliver the Underwritten Certificates, the Underwritten
Certificates are validly issued and outstanding and the holders of the
Underwritten Certificates will be entitled to the rights and benefits of the
Underwritten 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 sale of the Underwritten Certificates to
the Underwriter, 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 Underwriter 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) The Company has the power and authority under all governmental
and regulatory bodies having jurisdiction to sell the Underwritten Certificates
to the Underwriter. Upon delivery to the Underwriter of the Underwritten
Certificates against payment therefor, the Underwriter will have good title to
the Underwritten Certificates free of any liens, mortgages, charges,
encumbrances or other security interest.
(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 Underwriter or counsel for the Underwriter 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 Underwriter 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 Underwriter.
(q) The Company hereby makes to the Underwriter 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 Underwriter as if set forth
herein.
1.2 National City Bank represents and warrants to, and agrees with,
the Underwriter 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) National City Bank is a national banking association duly
chartered and validly existing in good standing under the laws of the United
States; and is duly authorized and qualified to transact any and all business
contemplated by this Agreement.
(c) Except as disclosed in any Issuer Free Writing Prospectus or the
Prospectus, there are no actions, proceedings or investigations pending with
respect to which National City Bank has received service of process before or
threatened by any court, administrative agency or other tribunal to which
National City Bank is a party or of which any of its properties is the subject
(A) which, if determined adversely to National City Bank, would have a material
adverse effect on the business or financial condition of National City Bank, (B)
asserting the invalidity of the Pooling and Servicing Agreement or the
Certificates, (C) seeking to prevent the consummation by National City Bank of
any of the transactions contemplated by the Pooling and Servicing Agreement or
(D) which might materially and adversely affect the performance by National City
Bank of its obligations under, or the validity or enforceability of, the Pooling
and Servicing Agreement or the Certificates.
(d) The execution and delivery by National City Bank of this
Agreement are within the corporate power of National City Bank and have been
duly authorized by all necessary corporate action on the part of National City
Bank and this Agreement constitutes a legal, valid and binding instrument
enforceable against National City Bank 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 National City Bank
and the consummation of the transactions contemplated hereby, and the issuance
and delivery of the Underwritten 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 National City Bank is a party, by which
National City Bank is bound or to which any of the properties or assets of
National City Bank 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 National City Bank 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 National
City Bank or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over National City Bank 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 National
City Bank or its ability to perform its obligations under the Pooling and
Servicing Agreement.
(f) This Agreement has been duly authorized, executed and delivered
by National City Bank.
(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 Underwritten
Certificates have been validly issued and will be validly outstanding and the
holders of the Underwritten Certificates will be entitled to the rights and
benefits of the Underwritten 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 was required for the issuance of the Certificates and none is required
for the sale of the Underwritten Certificates to the Underwriter, or the
consummation by National City Bank 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 Underwriter 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 had good title to, and was 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 met, in all material
respects, the eligibility criteria described in the Prospectus and conformed to
the descriptions thereof contained in the Prospectus.
(k) [Reserved].
(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 National City Bank,
whether or not arising in the ordinary course of business, and (B) there have
been no transactions entered into by National City Bank 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 National City Bank and
delivered to the Underwriter or counsel for the Underwriter 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 Underwriter by National City Bank 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, National
City Bank has promptly provided corrected information to the Underwriter.
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 the Underwriter, and the Underwriter agrees 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 the 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 October 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 October 7, 2008, or such later
date as the Underwriter shall designate, which date and time may be postponed by
agreement between the Underwriter 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 the Underwriter.
4.1 It is understood that the Underwriter proposes to offer the
Underwritten Certificates for sale as set forth in the Prospectus and the
Underwriter agrees that all such offers and sales by the Underwriter shall be
made in compliance with all applicable laws and regulations. The 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
Underwriter under such state securities laws or Blue Sky laws). In connection
with such offering(s), the Underwriter agrees to provide the Company with
information related to the offer and sale of the 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
Underwritten Certificates.
4.2 The 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 the Underwriter in an amount less than the
minimum denomination for such Underwritten Certificate to be set forth in the
Prospectus.
4.3 The Underwriter agrees that (i) if it delivers to an investor
the Prospectus in portable document format ("PDF"), upon the Underwriter's
receipt of a request from the investor within the period for which delivery of
the Prospectus is required, the 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 The 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
Underwriter 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 Underwriter 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
Underwritten Certificates. The Underwriter 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 the Underwriter is referred to as
an "Underwriter Free Writing Prospectus."
5.2 The Company may deliver to the Underwriter (i) a Free Writing
Prospectus which contains general information about the offering, including the
basic structure of the Underwritten Certificates, to the extent known by the
Company, the 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 Underwritten Certificates and whether
the Underwritten 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 and
Prospectus Supplement 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/or (ii)
a term sheet, containing general information about the offering (each, an
"Issuer Free Writing Prospectus").
5.3 The Company will file any Issuer Free Writing Prospectus with
the Commission, and the Underwriter shall not convey or deliver any Issuer Free
Writing Prospectus to any person or entity until the Company has notified the
Underwriter that it has completed such filing. Thereafter, any Issuer Free
Writing Prospectus may be used by the Underwriter solely in connection with the
marketing of the Underwritten Certificates to institutional investors; provided
however, the 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 Underwritten Certificates, unless prior to the
Time of Sale to each investor in the Underwritten Certificates, the Underwriter
shall have delivered to such investor the Issuer Free Writing Prospectuses,
together with any amendment or supplement thereto supplied by the Company to the
Underwriter sufficiently prior to the Time of Sale to such investor to
reasonably permit delivery thereof by the Underwriter to such investor.
Notwithstanding the foregoing, after the final Prospectus is available to the
Underwriter, the Underwriter shall not enter into any Contract of Sale with
respect to the Underwritten Certificates unless the Underwriter has delivered to
the related investor a copy of the final Prospectus.
5.4 The 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 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 Underwriter to the Company not later than two business days prior to the
date of first use of such Free Writing Prospectus.
5.6 [Reserved].
5.7 To facilitate the filing thereof by the Company, the 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 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 The 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 will constitute all Underwriter Free Writing
Prospectuses of the type described therein that were furnished to prospective
investors by the Underwriter in connection with its offer and sale of the
Underwritten Certificates.
5.9 The 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, the 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 Underwriter which misstatements or omissions were
not corrected by information subsequently supplied by the Company to the
Underwriter sufficiently prior to the Time of Sale to the applicable investor to
reasonably permit the delivery thereof by the 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 the 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
Underwriter to the Company pursuant to Section 5.4 or, at the election of
the Company, the portion of such Underwriter Free Writing Prospectus which
consists of Issuer Information.
5.11 The 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 accordance with Section 5.10 and in a
manner reasonably designed to lead to its broad, unrestricted dissemination. Any
access codes or passwords needed by the Underwriter to complete a filing shall
be provided by the Company.
5.12 The Company and the Underwriter agree that any Free Writing
Prospectuses prepared by the Company shall contain substantially the following
legend and may contain any other additional legends agreed to between the
Company and the Underwriter:
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 The 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, the Underwriter agrees to keep and maintain,
for a period of not less than three years following the initial bona fide
offering 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 the 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, the 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) The Underwriter will not enter into, and the 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 the Underwriter or such dealer has delivered to such investor a
copy of the final Prospectus.
(ii) The Underwriter shall not enter into any Contract of Sale with
respect to the Underwritten Certificates with any institutional investor unless
the 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 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, the
Prospectus Supplement 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
Underwriter thereof within one business day after discovery and the Company
shall prepare and deliver to the Underwriter 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 the 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"), the Underwriter shall notify the Company thereof within
one business day after discovery.
(iii )The 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 The Underwriter covenants with the Company that after the final
Prospectus is available, it shall not distribute any Written Communication
concerning the Underwritten 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
Underwritten Certificates by the Underwriter.
5.19 The Underwriter agrees, upon request of the Company, to provide
to the Company any information within the control of the 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
the 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 Underwriter that:
6.1 Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Certificates, the Company will furnish the
Underwriter a copy of each such proposed amendment or supplement.
6.2 The Company agrees to prepare the Prospectus in a form approved
by the Underwriter 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 Underwriter;
to make no further amendment or any supplement to the Registration Statement or
the Prospectus prior to the Closing Date except as permitted herein; to advise
the Underwriter, 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 Underwriter or its 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 Underwriter 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 Underwritten Certificates in which a prospectus relating to the
Underwritten 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 Underwriter, 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 Underwriter, 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 Underwriter
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 Underwriter's consent to nor its distribution of any
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 6.
6.6 The Company represents and warrants that the Pooling and
Servicing Agreement provides that so long as the Underwritten Certificates shall
be outstanding, the Trustee shall deliver to the Underwriter 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 Underwriter and counsel for
the Underwriter, 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 February 28, 2008.
6.8 The Company will use commercially reasonable efforts to arrange
for the qualification of the Underwritten Certificates for sale under the laws
of such jurisdictions as the Underwriter may reasonably designate and will
maintain such qualification in effect so long as required for the initial
distribution of the Underwritten 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 National City Bank agree to pay (i) the
costs incident to the authorization, issuance, sale and delivery of the
Underwritten Certificates 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 Underwriter); and (vii) all other costs and expenses
incidental to the performance of the obligations of the Company and National
City Bank (including costs and expenses of counsel to the Company and National
City Bank).
(b) The Underwriter shall be solely responsible for (i) the costs
and expenses of the Underwriter, 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 Underwriter.
If this Agreement is terminated because of a breach by the Company
or National City Bank of any covenant or agreement hereunder, the Company and
National City Bank shall cause the Underwriter to be reimbursed for all
reasonable out-of-pocket expenses, including fees and disbursements of counsel
for the Underwriter.
6.10 The Underwriter represents and warrants to and agrees with the
Company and National City Bank 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 Trust 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 Trust.
(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 Underwriter. The
obligations of the Underwriter 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 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 National City Bank, which adverse change makes it impractical
or inadvisable to market the Underwritten Certificates.
7.3 The Company shall have delivered to the Underwriter 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 Pooling and Servicing
Agreement.
7.4 The Underwriter shall have received from Ernst & Young,
certified public accountants, a letter dated the date hereof and satisfactory in
form and substance to the Underwriter and the Underwriter's counsel, to the
effect that they have performed certain specified procedures, all of which have
been agreed to by the Underwriter, 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.
7.5 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).
7.6 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 Underwriter and counsel for the
Underwriter.
7.7 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 Underwriter, impractical or inadvisable to market the
Underwritten Certificates.
7.8 The Company will furnish the Underwriter with conformed copies
of the above letters and such other documents as the Underwriter or its counsel
may reasonably request.
7.9 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 Underwriter 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 Section 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 7.7), the Company shall have reasonable opportunity to cure such
noncompliance with such condition by no later than 11:00 AM on the Closing Date.
Section 8. Indemnification and Contribution.
8.1 Each of the Company and National City Bank agrees to indemnify
and hold harmless the Underwriter, the Underwriter's respective officers and
directors and each person, if any, who controls the 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 the 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
Underwriter, 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 Underwriter, the omission or alleged omission to
include material data therein necessary to make the data therein not misleading,
in the case of (i), (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 Underwriter
sufficiently prior to the Time of Sale to such investor to reasonably permit the
delivery thereof by the 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, liability or action; provided, however, that the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon 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 National
City Bank may otherwise have.
8.2 The Underwriter agrees to indemnify and hold harmless the
Company, its officers who signed the Registration Statement or any amendment
thereof, its directors, and each person who controls the Company within the
meaning of either 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
Underwriter, but only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with the Underwriter Information provided by the 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 Underwriter which, in any case, were not corrected by information
subsequently supplied by the Company to the Underwriter sufficiently prior to
the Time of Sale to the applicable investor to reasonably permit the delivery
thereof by the Underwriter to such investor or (B) any failure by the
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 the
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 Underwriter, 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 National City Bank on the one hand and the
Underwriter on the other from the offering of the Underwritten Certificates but
also the relative fault of the Company or National City Bank on the one hand and
of the Underwriter, on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company or National City Bank on the one hand and the Underwriter on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Underwritten Certificates (before deducting expenses) received
by the Company or National City Bank bear to the total underwriting discounts
and commissions received by the Underwriter. 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.
8.5 The Company and the 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, the Underwriter shall
not 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 the
Underwriter in connection with the offering of the Underwritten Certificates
exceeds (ii) the amount of damages that the Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 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 National
City Bank 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 Underwriter or on behalf of the Underwriter or any person controlling the
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 National City Bank agrees with the Underwriter, for the sole and
exclusive benefit of the Underwriter and each person who controls the
Underwriter within the meaning of either the Act or the Exchange Act and not for
the benefit of any assignee thereof or any other person or persons dealing with
the Underwriter, in consideration of and as an inducement to its agreement to
purchase the Underwritten Certificates from the Company, to indemnify and hold
harmless the Underwriter against any failure by the Company to perform its
obligations to the Underwriter pursuant to Section 8.1 hereof.
Section 9. [Reserved].
Section 10. Termination. This Agreement shall be subject to
termination by notice given to the Company, if the sale of the Underwritten
Certificates provided for herein is not consummated because of any failure or
refusal on the part of the Company or National City Bank to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company or National City Bank shall be unable to perform its
obligations under this Agreement. The Underwriter 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 7.7 of this Agreement shall occur and be
continuing. If the Underwriter terminates this Agreement in accordance with this
Section 10, the Company will reimburse the Underwriter 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 Underwritten Certificates.
Section 11. Certain Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company, National City Bank, the Underwriter or the officers
of any of the Company, National City Bank or the 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 the
Underwriter or on the Underwriter's behalf or made by or on behalf of either
National City Bank or the Company or any of their officers, directors or
controlling persons, and will survive delivery of and payment for the
Underwritten 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 Underwriter:
NatCity Investments, Inc.
0 Xxxxxxxx Xxxxx, 000 Xxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Head of Structured Products Group
(b) in the case of the Company
National City Mortgage Capital LLC
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx
(c) in the case of National City Bank
National City Bank
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx
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 National City Bank
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 National City Bank, on the one hand, and the
Underwriter, on the other, (b) in connection therewith and with the process
leading to such transaction, the Underwriter is acting solely as a principal and
not as an agent or fiduciary of the Company and National City Bank, (c) the
Underwriter has not assumed an advisory or fiduciary responsibility in favor of
the Company or National City Bank with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether the Underwriter
has advised or is currently advising the Company or National City Bank on
related or other matters) or any other obligation to the Company or National
City Bank except the obligations expressly set forth in this Agreement, (d) the
engagement of the Underwriter in connection with the offering is as an
independent contractor and not in any other capacity and (e) the Company and
National City Bank have consulted their own legal and financial advisors to the
extent each have deemed appropriate. Furthermore, each of Company and National
City Bank 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, National City Bank and the Underwriter.
Very truly yours,
NATIONAL CITY MORTGAGE CAPITAL LLC
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President and Secretary
NATIONAL CITY BANK
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Senior Vice President-Capital
Markets
The foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
NATCITY INVESTMENTS, INC.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Managing Director
EXHIBIT A
Initial and Current Principal Amount of the Underwritten Certificates:
Initial
Principal Current Principal
Class Amount Amount Pass-Through Rate
----------- ----------- ------------------ -----------------
Class 2-A-2 $13,353,000 $11,939,303 6.000%
Amount of Underwritten Certificates to be purchased:
NatCity Investments, Inc. Purchase Price
Class (Principal Amount) Percentage (Net of Fees)
----------- -------------------------- ------------------------
Class 2-A-2 $11,939,303 [Intentionally Omitted]
Underwritten Certificate Ratings:
Class S&P Fitch Ratings
----------- --- -------------
Class 2-A-2 AAA AAA
EXHIBIT B
UNDERWRITER INFORMATION
The Underwriter has advised the Depositor that it proposes 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 Underwriter that it intends to
make a market in the Underwritten Certificates but has 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.
