EXHIBIT 1.1
NATIONAL CITY MORTGAGE CAPITAL LLC
Mortgage Pass-Through Certificates, Series [____]-[__]
UNDERWRITING AGREEMENT
[_________], 20[__]
[Name of Underwriter]
[Address]
[Name of Underwriter]
[Address]
Ladies and Gentlemen:
National City Mortgage Capital LLC, a Delaware limited liability company
(the "Company"), proposes to sell to [____________________] ("_______") and
[________] ("[_____]" and together with [______], the "Underwriters") Mortgage
Pass-Through Certificates, Series [____]-[__], Class [_______] 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 [__] 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 [and second] lien
mortgage loans (the "Mortgage Loans") as described in the Prospectus Supplement
(as hereinafter defined) to be sold by the Company.
The Certificates will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of [__________
________] (the "Cut-off Date") among the Company, as depositor, National City
Mortgage Co., as servicer, and [_____________], 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."
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-[________]) 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
Certificates, which registration statement has become effective. 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
[____________________] (the "Prospectus Supplement"), to the prospectus, dated
[____________________] (the "Base Prospectus"), relating to the Certificates and
the method of distribution thereof. Such registration statement (No.
333-[_______]), 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 Certificates, are
hereinafter called the "Prospectus."
(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, as of the date of the
Prospectus Supplement, did not, and as of the Closing Date will not, contain an
untrue statement of a material fact and did not 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") The Issuer Free Writing Prospectus (as defined in Section 5.2),
as amended or supplemented, 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, provided, however, that the
Company makes no representation or warranty as to the effect of the exclusion
from the Issuer Free Writing Prospectus of any information of the type specified
in Exhibit B hereto as Supplemental 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 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 Certificates which has been conveyed to an
investor at the Time of Sale to such investor.
(c) The Company is not, and on the date on which the first bona fide offer
of the Certificates is made will not be, an "ineligible issuer," as such term is
defined in Rule 405 under the Securities Act.
(d) 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.
(e) This Agreement has been duly authorized, executed and delivered by the
Company.
(f) As of the Closing Date (as defined below) the 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.
1.2 Each Underwriter represents and warrants to and agrees with the
Company that:
(a) It will have funds available in its account at a bank at the time all
documents are executed and the closing of the sale of the Certificates is
completed except for the transfer of funds and the delivery of the Certificates.
Such funds will be available for immediate transfer into the account of National
City Mortgage Capital LLC maintained at such bank.
(b) As of the date hereof and as of the Closing Date, it has complied with
all of its obligations hereunder.
(c) As of the date hereof and as of the Closing Date, that:
(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 Certificates to the
public in that Relevant Member State prior to the publication of a
prospectus in relation to the 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 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
Certificates to the public" in relation to any 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 Certificates
to be offered so as to enable an investor to decide to purchase or
subscribe the 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 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
Certificates in, from or otherwise involving the United Kingdom.
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 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 Certificates an amount equal to interest accrued thereon from the Cut-off
Date to but not including the Closing Date.
Section 3. Delivery and Payment. Delivery of and payment for the
Certificates shall be made at the office of Cadwalader, Xxxxxxxxxx & Xxxx LLP at
10:00 a.m., New York City time, on [_____________], 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 Certificates being herein called the "Closing Date"). Delivery
of the Certificates shall be made to you through the Depository Trust Company.
Section 4. Offering by Underwriters.
4.1 It is understood that the Underwriters propose to offer the
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 Certificates (except for the sale thereof in exempt
transactions) in any state in which the Certificates are not exempt from
registration under state securities laws or Blue Sky laws (except where the
Certificates will have been qualified for offering and sale at the direction of
the 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 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
Certificate or interest therein in the initial sale or transfer of such
Certificate by such Underwriter in an amount less than the minimum denomination
for such 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 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, the Underwriters shall not
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 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 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. 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, not later than two
business days following [_______________] (the "Bid Date"), a Free Writing
Prospectus 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), the subordination percentage
for the senior Certificates 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) (the
"Issuer Free Writing Prospectus").
5.3 The Company will endeavor to file the Issuer Free Writing Prospectus
with the Commission not later than two business days following the Bid Date, and
the Underwriters shall not convey or deliver the Issuer Free Writing Prospectus
to any person or entity until the Company has notified the Underwriters that it
has completed such filing. Thereafter, the 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 (A) delivered to such investor
the Issuer Free Writing Prospectus, together with any amendment or supplement
thereto supplied by the Company to the such Underwriter sufficiently prior to
the Time of Sale to such investor to reasonably permit delivery thereof by such
Underwriter to such investor and (B) provided to such investor such of the
Supplemental Information described in Exhibit B hereto that is then known or
available to such Underwriter as such Underwriter, in the exercise of its
judgment, shall have concluded is required to make the Issuer Free Writing
Prospectus, when considered in conjunction with the Time of Sale Information,
not misleading.
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 an Underwriter Free Writing Prospectus (which may
consist of a term sheet) containing a description of the final structure of the
Certificates, irrespective of whether such Underwriter Free Writing Prospectus
has been or will be conveyed or delivered by the Underwriters to any investor in
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 from the portion
of such 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
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 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 Prospectus or such
omissions are the result of omission from the Issuer Free Writing Prospectus
(other than omissions which are the subject of Section 8.2(B) below) 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:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete
information about the 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
Certificates, written records documenting, as to each investor in 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
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 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 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 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.
5.17 (i) In the event that the Company becomes aware that the Issuer Free
Writing Prospectus 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 (other than as the result of the exclusion from the Issuer Free
Writing Prospectus of information of the type specified in Exhibit B hereto as
Supplemental Information) (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 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 it will make
available to the Company, upon reasonable prior notice and at reasonable times
during normal business hours, such personnel as are familiar with such
Underwriter's compliance procedures for the purpose of answering questions
concerning such Underwriter's practices and procedures for the preparation and
dissemination of Written Communications concerning the Certificates to
prospective investors prior to the delivery of the final Prospectus to such
investors.
5.19 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.
5.20 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.
5.21 Each Underwriter agrees to cause any credit enhancement provider,
derivative counterparty, special servicer or credit risk manager arranged by it
in connection with the Certificates to provide to the Company such narrative
disclosure, financial information, including required accountants' consents, and
other information as 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.
5.22 Notwithstanding any other provision herein, each Underwriter and the
Company agree to pay all costs and expenses of the other parties including,
without limitation, legal fees and expenses, incurred in connection with any
successful action by an Underwriter or the Company against the other parties to
enforce any of its rights set forth in this Section 5.
5.23 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 will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the Securities Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule.
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, 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 The Company agrees, so long as the Certificates shall be outstanding,
or until such time as the Underwriters shall cease to maintain a secondary
market in the Certificates, whichever first occurs, to deliver to the
Underwriters the annual statement as to compliance delivered to the Trustee
under the Pooling and Servicing Agreement and the annual statement of a firm of
independent public accountants furnished to the Trustee under the Pooling and
Servicing Agreement, as soon as such statements are furnished to the Company.
6.6 The Company will endeavor 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; 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.
6.7 If the transactions contemplated by this Agreement are consummated,
the Company will pay or cause to be paid all expenses incident to the
performance of the obligations of the Company under this Agreement, and will
reimburse the Underwriters severally for any reasonable expenses (including
reasonable fees and disbursements of counsel) reasonably incurred by the
Underwriters in connection with qualification of the Certificates for sale and
determination of their eligibility for investment under the laws of such
jurisdictions as the Underwriters have reasonably requested pursuant to
Section 6.4 above and the printing of memoranda relating thereto, for any fees
charged by investment rating agencies for the rating of the Certificates, and
for expenses incurred in distributing the Prospectus (including any amendments
and supplements thereto) to the Underwriters. Except as herein provided, each
Underwriter shall be responsible for paying all costs and expenses incurred by
it, including the fees and disbursements of its counsel, in connection with the
purchase and sale of the Certificates.
6.8 If, during the period after the Closing Date in which a prospectus
relating to the Certificates is required to be delivered under the Securities
Act, the Company receives notice that a stop order suspending the effectiveness
of the Registration Statement or preventing the offer and sale of the
Certificates is in effect, the Company will advise the Underwriters of the
issuance of such stop order.
Section 7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Certificates shall be subject to
the following conditions:
7.1 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.
7.2 Since the Bid Date there shall have been no material adverse change
(not in the ordinary course of business) in the condition of the Company.
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, to the best of his or her knowledge
after reasonable investigation:
(a) the representations and warranties of the Company in this Agreement
and in the Pooling and Servicing Agreement are true and correct in all material
respects; and
(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.
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 from Cadwalader, Xxxxxxxxxx &
Xxxx LLP, counsel for the Underwriters, an opinion dated the Closing Date in
form and substance reasonably satisfactory to the Underwriters.
7.6 The Underwriters shall have received from [_______], 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 or statistical nature set forth in the
Prospectus Supplement agrees with the records of the Company excluding any
questions of legal interpretation.
7.7 The 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 either rating of
the Certificates has been placed under review (otherwise than for possible
upgrading).
7.8 The Underwriters shall have received the opinion of [__________],
counsel to the Trustee, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters.
The Company will furnish the Underwriters with conformed copies of the
above opinions, certificates, letters and documents as the Underwriters
reasonably request.
Section 8. Indemnification and Contribution.
8.1 The Company agrees to indemnify and hold harmless each Underwriter 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 they 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) 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, 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) 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) 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, 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 (A) 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 or
(B) any omission or alleged omission to state a material fact in the Issuer Free
Writing Prospectus necessary to make the statements therein not misleading at
the Time of Sale to the applicable investor, when considered in conjunction with
the Time of Sale Information, as a result of the exclusion from the Issuer Free
Writing Prospectus of any information of the type specified in Exhibit B hereto
as Supplemental Information. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
8.2 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 Prospectus (other than omissions which are the subject of
Section 8.2(B) below) 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 omission or alleged omission to
state a material fact in any Issuer Free Writing Prospectus necessary to make
the statements made 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, as a result
of the exclusion from the Issuer Free Writing Prospectus of any information of
the type specified in Exhibit B as Supplemental Information or (C) any failure
by such Underwriter to deliver the Issuer Free Writing Prospectus 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.
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
indemnified party on the one hand and the indemnifying party on the other from
the offering of the Certificates but also the relative fault of the indemnified
party on the one hand and of the indemnifying party, 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 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 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. 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 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 Certificates.
Section 9. 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
to comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement. If the Underwriters terminate this Agreement in accordance
with this Section 9, 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 10. Certain Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or the officers of either the Company 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 the Company or any of its officers, directors or controlling
persons, and will survive delivery of and payment for the Certificates.
Section 11. Notices. All communications hereunder will be in writing and
effective only on receipt, and will be mailed, delivered or telegraphed and
confirmed to [_________] at [___________], Attention: [__________] or,
[_________] at [___________], Attention: [__________] or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at
National City Mortgage Capital LLC, 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000,
Attention: Xxxxx X. Xxxxxxx.
Section 12. 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 13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 14. 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.
[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 and each Underwriter.
Very truly yours,
NATIONAL CITY MORTGAGE CAPITAL LLC
By:
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Name:
Title
The foregoing Underwriting Agreement is hereby confirmed and accepted as
of the date first above written.
[NAME OF UNDERWRITER]
By:
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Name:
Title:
[NAME OF UNDERWRITER]
By:
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Name:
Title:
EXHIBIT A
Initial Principal Amount of Offered Certificates:
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Initial Principal
Class Amount Pass-Through Rate
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Certificate Ratings:
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Class [Rating Agency] [Rating Agency]
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Purchase Price
Class [Underwriter] [Underwriter] Percentage
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EXHIBIT B
SUPPLEMENTAL INFORMATION
With respect to any investor, "Supplemental Information" means any of the
following types of information, to the extent omitted from the Issuer Free
Writing Prospectus:
1. The structure of the Certificates being offered to such investor (such
Certificates, the "Offered Certificates"), including general paydown rules, the
interest rate or interest rate formula, if applicable, the anticipated price or
price range, the yield to maturity and/or call, the weighted average life at the
pricing speed and under such other scenarios as may be necessary to illustrate
the material effects of prepayments or changes in interest rates on the Offered
Certificates (with a description of any related prepayment, collateral and other
assumptions), and other pricing information;
2. The interest accrual period for the Offered Certificates;
3. Whether the Offered Certificates represent interests in the entire
mortgage pool or in one or more mortgage loan groups, the nature of such loan
groups, any differences in the subordination levels of the Offered Certificates
relating to such loan groups as a result of the division of the mortgage pool
into more than one loan group by the Underwriters or as a result of the
Underwriters dividing the subordinated certificates into more than one group and
the nature of any cross-collateralization arrangements affecting the Offered
Certificates.
4. A description of any third party credit enhancement or any derivative
instruments being selected by the Underwriters in connection with the Offered
Certificates, together with the identity of and material information about any
related provider or counterparty, to the extent known to the Underwriters, and
the ratings assigned to such provider or counterparty; and
6. The identity of and material information about any special servicer or
credit risk manager selected by the Underwriters with respect to the Offered
Certificates.
EXHIBIT C
UNDERWRITER INFORMATION
