EXHIBIT 1.1
NATIONAL CITY MORTGAGE CAPITAL LLC
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 20[__-__]
FORM OF UNDERWRITING AGREEMENT
____________, 20__
[Name of Underwriter]
Ladies and Gentlemen:
National City Mortgage Capital LLC, a Delaware limited liability
company (the "COMPANY"), proposes to sell to ____________________ (the
"UNDERWRITER") Mortgage Asset-Backed Pass-Through Certificates, Series
20[__-__], Class X-0, Xxxxx X-0, [Class A-3,] [Class A-4,] Class A-5, Class R
[and Class M Certificates] (collectively, the "CERTIFICATES"), having the
aggregate principal amounts and Pass-Through Rates set forth above. The
Certificates, together with the [Class A-3] and [Class B Certificates] of the
same series, will evidence the entire beneficial interest in the Trust Fund (as
defined in the [Pooling and Servicing] [Trust] 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") [or interests therein]
[[____________] GNMA Certificates (collectively, the "AGENCY SECURITIES")] 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] [a trust agreement] [(the "POOLING AND SERVICING AGREEMENT")] [(the
"TRUST AGREEMENT")] to be dated as of ____________ 1, 20__ (the "CUT-OFF DATE")
among the Company, as company and [_______], as [servicer[s]], and _____________
(the "TRUSTEE"). The Certificates are described more fully in the Basic
Prospectus and the Prospectus Supplement (each as hereinafter defined) which the
Company has furnished to the Underwriter.
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-________) on Form S-3 for the registration under the Securities Act
of 1933, as amended (the "ACT"), of Mortgage Pass-Through Certificates
(issuable in series), including the Certificates, which registration
statement has become effective, and a copy of which, as amended to the
date hereof, has heretofore been delivered to the Underwriter. The
Company proposes to file with the Commission pursuant to Rule 424(b)
under the rules and regulations of the Commission under the Act (the
"1933 ACT REGULATIONS") a supplement dated, 20__ (the "PROSPECTUS
SUPPLEMENT"), to the prospectus dated _____, 20__ (the "BASIC
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 Basic 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". Any preliminary form of the Prospectus
Supplement which has heretofore been filed pursuant to Rule 424, or
prior to the effective date of the Registration Statement, pursuant to
Rule 402(a) or 424(a) is hereinafter called a "PRELIMINARY PROSPECTUS
SUPPLEMENT".
(b) The Registration Statement has become effective, and the
Registration Statement as of its effective date (the "EFFECTIVE DATE"),
and the Prospectus, as of the date of the Prospectus Supplement,
complied in all material respects with the applicable requirements of
the Act and the 1933 Act Regulations; and the Registration Statement,
as of the 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 does not make any
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto relating to the information
identified by underlining or other highlighting as shown in EXHIBIT E
(the "EXCLUDED INFORMATION"); and PROVIDED, FURTHER, that the Company
does not make any representations or warranties as to either (i) any
information in any Computational Materials (as hereinafter defined)
required to be provided by the Underwriter to the Company pursuant to
SECTION 4.2, except to the extent of any information set forth therein
that constitutes Pool Information (as defined below), or (ii) as to any
information contained in or omitted from the portions of the Prospectus
identified by underlining or other highlighting as shown in EXHIBIT D
(the "UNDERWRITER INFORMATION"). As used herein, "POOL INFORMATION"
means information with respect to the characteristics of the Mortgage
Loans and administrative and servicing fees, as provided by or on
behalf of the Company to the Underwriter in final form and set forth in
the Prospectus Supplement. The Company acknowledges that, except for
any Computational Materials, the Underwriter Information constitutes
the only information furnished in writing by the Underwriter or on
behalf of the Underwriter for use in connection with the preparation of
the Registration Statement, any preliminary prospectus or the
Prospectus, and the Underwriter confirms that such Underwriter
Information is correct.
(c) The Company has been duly incorporated and is validly
existing as a limited liability company in good standing under the laws
of the State of Delaware and has the requisite corporate power to own
its properties and to conduct its business as presently conducted by
it.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) 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] [Trust] Agreement will be
true and correct.
1.2 The Underwriter represents and warrants to and agrees with the
Company that:
(a) [omitted]
(b) [omitted]
(c) [omitted]
(d) [omitted]
(e) The Underwriter hereby certifies that (i) with respect to any
class of Certificates issued in authorized denominations of less than
$25,000, the fair market value of each such Certificate on the date of
initial sale thereof by the Underwriter will not be less than $100,000,
and (ii) with respect to each class of Certificates to be maintained on
the book-entry records of The Depository Trust Company ("DTC"), the
interest in each such class of Certificates sold to any person on the
date of initial sale thereof by the Underwriter will not be less than
an initial Certificate Principal Balance of $25,000.
(f) [omitted]
(g) [omitted]
(h) [omitted]
(i) The Underwriter will have funds available at ___________ in
the Underwriter's account at such 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.
(j) As of the date hereof and as of the Closing Date, the
Underwriter has complied with all of its obligations hereunder
including SECTION 4.2, and, with respect to all Computational Materials
provided by the Underwriter to the Company pursuant to SECTION 4.2, if
any, such Computational Materials are accurate (except to the extent of
any errors therein that are caused by errors in the Pool Information).
The Computational Materials provided by the Underwriter to the Company
constitute a complete set of all Computational Materials that are
required to be filed with the Commission.
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 Certificates at a price equal to ___________% of
the aggregate principal balance of the Certificates as of the Closing Date.
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 Xxxxxxx Xxxxxxxx & Xxxx LLP at 10:00
a.m., New York City time, on ________, 20__, 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 Certificates being herein called the "CLOSING Date"). Delivery
of the Certificates shall be made to you through the Depository Trust Company
("DTC") (such Certificates, the "DTC REGISTERED CERTIFICATES").
SECTION 4. OFFERING BY UNDERWRITER.
4.1 It is understood that the Underwriter proposes to offer the
Certificates for sale to the public 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.
4.2 It is understood that you may prepare and provide to prospective
investors certain Computational Materials in connection with your offering of
the Certificates, subject to the following conditions:
(a) The Underwriter shall comply with all applicable laws and
regulations in connection with the use of Computational Materials,
including the No-Action Letter of May 20, 1994 issued by the Commission
to Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co.
Incorporated and Xxxxxx Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association dated May
24, 1994 (collectively, the "XXXXXX/PSA LETTER").
(b) For purposes hereof, "COMPUTATIONAL MATERIALS" as used
herein shall have the meaning given such term in the Xxxxxx/PSA Letter
but shall include only those Computational Materials that have been
prepared or delivered to prospective investors by or at the direction
of the Underwriter.
(c) All Computational Materials (except those identified to
the Company on the date hereof) provided to prospective investors that
are required to be filed pursuant to the Xxxxxx/PSA Letter shall bear a
legend on each page including the following statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY,
[name of Underwriter]. NEITHER THE ISSUER OF THE CERTIFICATES
NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE
ACCURACY OR COMPLETENESS OF THE INFORMATION HEREIN. THE
INFORMATION HEREIN IS PRELIMINARY, AND WILL BE SUPERSEDED BY
THE APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER
INFORMATION SUBSEQUENTLY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
The Company shall have the right to require additional specific legends
or notations to appear on any Computational Materials, the right to require
changes regarding the use of terminology and the right to determine the types of
information appearing therein. Notwithstanding the foregoing, this SUBSECTION
(C) will be satisfied if all such Computational Materials bear a legend in the
form set forth in EXHIBIT F hereto.
(d) The Underwriter shall provide the Company with
representative forms of all Computational Materials prior to their
first use, to the extent such forms have not previously been approved
by the Company for use by the Underwriter. The Underwriter shall
provide to the Company, for filing on FORM 8-K as provided in SECTION
5.9, copies (in such format as required by the Company) of all
Computational Materials that are required to be filed with the
Commission pursuant to the Xxxxxx/PSA Letter. The Underwriter may
provide copies of the foregoing in a consolidated or aggregated form
including all information required to be filed. All Computational
Materials described in this SUBSECTION (D) must be provided to the
Company not later than 10:00 a.m. New York time one business day before
filing thereof is required pursuant to the terms of this Agreement.
(e) All information included in the Computational Materials
shall be generated based on substantially the same methodology and
assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; PROVIDED, HOWEVER, that the
Computational Materials may include information based on alternative
assumptions if specified therein. If any Computational Materials that
are required to be filed were based on assumptions with respect to the
Pool that differ from the final Pool Information in any material
respect or on Certificate structuring terms that were revised prior to
the printing of the Prospectus, the Underwriter shall prepare revised
Computational Materials based on the final Pool Information and
structuring assumptions, circulate such revised Computational Materials
to all recipients of the preliminary versions thereof and include such
revised Computational materials (marked, "as revised") in the materials
delivered to the Company pursuant to subsection (d) above.
(f) The Company shall not be obligated to file any
Computational Materials that have been determined to contain any
material error or omission, except any such Computational Materials
filed together with the corrected Computational Materials. In the event
that any Computational Materials are determined, within the period
which the Prospectus relating to the Certificates is required to be
delivered under the Act, to contain a material error or omission, the
Underwriter shall prepare a corrected version of such Computational
Materials, shall circulate such corrected Computational Materials to
all recipients of the prior versions thereof and shall deliver copies
of such corrected Computational Materials (marked, "as corrected") to
the Company for filing with the Commission in a subsequent Form 8-K
submission (subject to the Company's obtaining an accountant's comfort
letter in respect of such corrected Computational Materials, which
shall be at the expense of the Underwriter).
(g) If the Underwriter does not provide any Computational
Materials to the Company pursuant to SUBSECTION (d) above, the
Underwriter shall be deemed to have represented, as of the Closing
Date, that it did not provide any prospective investors with any
information in written or electronic form in connection with the
offering of the Certificates that is required to be filed with the
Commission in accordance with the Xxxxxx/PSA Letter, and the
Underwriter shall provide the Company with a certification to that
effect on the Closing Date.
(h) In the event of any delay in the delivery by the
Underwriter to the Company of all Computational Materials required to
be delivered in accordance with SUBSECTION (D) above, or in the
delivery of the accountant's comfort letter in respect thereof pursuant
to SECTION 5.9, the Company shall have the right to delay the release
of the Prospectus to investors or to the Underwriter, to delay the
Closing Date and to take other appropriate actions in each case as
necessary in order to allow the Company to comply with its agreement
set forth in Section 5.9 to file the Computational materials by the
time specified therein.
(i) The Underwriter represents that it has in place, and
covenants that it shall maintain internal controls and procedures which
it reasonably believes to be sufficient to ensure full compliance with
all applicable legal requirements of the Xxxxxx/PSA Letter with respect
to the generation and use of Computational Materials in connection with
the offering of the Certificates.
4.3 The Underwriter further agrees that on or prior to the fifth day
after the Closing Date, it shall provide the Company with a certificate,
substantially in the form of EXHIBIT E attached hereto, setting forth (i) in the
case of each class of Certificates, (a) if less than 10% of the aggregate
principal balance of such class of Certificates has been sold to the public as
of such date, the value calculated pursuant to CLAUSE (B) (III) of EXHIBIT E
hereto, or, (B) if 10% or more of such class of Certificates has been sold to
the public as of such date but no single price is paid for at least 10% of the
aggregate principal balance of such class of Certificates, then the weighted
average price at which the Certificates of such class were sold expressed as a
percentage of the principal balance of such class of Certificates sold, or (c)
the first single price at which at least 10% of the aggregate principal balance
of such class of Certificates was sold to the public, (ii) the prepayment
assumption used in pricing each class of Certificates, and (iii) such other
information as to matters of fact as the Company may reasonably request in
writing to enable it to comply with its reporting requirements with respect to
each class of Certificates to the extent such information can in the good faith
judgment of the Underwriter be determined by it.
SECTION 5. AGREEMENTS. The Company agrees with the Underwriter that:
5.1 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.
5.2 The Company will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the Act by means reasonably
calculated to result in filing with the Commission pursuant to said rule.
5.3 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 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 Act or the 1933 Act Regulations, the Company promptly will prepare and
furnish, at its own expense, 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.
5.4 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 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.
5.5 The Company agrees, so long as the Certificates shall be
outstanding, or until such time as the Underwriter shall cease to maintain a
secondary market in the Certificates, whichever first occurs, to deliver to the
Underwriter the annual statement as to compliance delivered to the Trustee
pursuant to [Section 3.18 of the Pooling and Servicing Agreement] [Section 3.05
of the Trust Agreement] [and the annual statement of a firm of independent
public accountants furnished to the Trustee pursuant to Section 3.19 of the
Pooling and Servicing Agreement], as soon as such statements are furnished to
the Company.
5.6 The Company will endeavor to arrange for the qualification of the
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 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.
5.7 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 Underwriter for any reasonable expenses (including reasonable fees
and disbursements of counsel) reasonably incurred by the Underwriter in
connection with qualification of the Certificates for sale and determination of
their eligibility for investment under the laws of such jurisdictions as the
Underwriter has reasonably requested pursuant to SECTION 5.6 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 Underwriter. Except as herein provided, the 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.
5.8 If, during the period after the Closing Date in which a prospectus
relating to the Certificates is required to be delivered under the 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 Underwriter of the issuance of such stop
order.
5.9 The Company shall file the Computational Materials (if any)
provided to it by the Underwriter under SECTION 4.2(D) with the Commission
pursuant to a Current Report on Form 8-K by 10:00 a.m. on the morning the
Prospectus is delivered to the Underwriter; PROVIDED, HOWEVER, that prior to
such filing of the Computational Materials by the Company, the Underwriter must
comply with its obligations pursuant to SECTION 4.2 and the Company must receive
a letter from ____________, certified public accountants, satisfactory in form
and substance to the Company and its counsel, to the effect that such
accountants have performed certain specified procedures, all of which have been
agreed to by the Company, as a result of which they determined that all
information that is included in the Computational Materials (if any) provided by
the Underwriter to the Company for filing on Form 8-K, as provided in SECTION
4.2 and this SECTION 5.9, is accurate. The foregoing letter shall be at the
expense of the Underwriter. The Company also will file with the Commission
within fifteen days of the issuance of the Certificates a Current Report on Form
8-K (for purposes of filing the Pooling and Servicing Agreement).
SECTION 6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. The
Underwriter's obligation to purchase the Certificates shall be subject to the
following conditions:
6.1 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 Act.
6.2 Since _____, 20__ there shall have been no material adverse change
(not in the ordinary course of business) in the condition of the Company.
6.3 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, 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] [Trust] 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.
6.4 The Underwriter shall have received the opinion of Xxxxxxx Xxxxxxxx
& Xxxx LLP special counsel for the Company dated the Closing Date in form and
substance reasonably satisfactory to the Underwriter.
6.5 The Underwriter shall have received from _____________, counsel for
the Underwriter, an opinion dated the Closing Date in form and substance
reasonably satisfactory to the Underwriter.
6.6 The Underwriter shall have received from ___________, 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 or statistical nature set forth in the
Prospectus Supplement under the captions "Description of the Mortgage Pool",
["Pooling and Servicing Agreement"] ["The Trust Agreement"], "Description of the
Certificates" and "Certain Yield and Prepayment Considerations" agrees with the
records of the Company excluding any questions of legal interpretation.
6.7 The Class [A] Certificates shall have been rated "_" by
______________ and _______________ [and the Class M Certificates shall have been
rated "___" by __________]
6.8 The Underwriter shall have received the opinion of __________,
counsel to the Trustee, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter.
The Company will furnish the Underwriter with conformed copies of the
above opinions, certificates, letters and documents as the Underwriter
reasonably requests.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION.
7.1 The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934, from and against any and all losses, claims, damages and liabilities
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Certificates
as originally filed or in any amendment thereof or other filing incorporated by
reference therein, or in the Prospectus or other filing incorporated by
reference therein (if used within the period set forth in SECTION 5.3 hereof and
as amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading, except insofar as such losses, claims, damages, or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished in writing to the Company by the
Underwriter expressly for use therein, provided that neither the Company nor the
Underwriter will be liable in any 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 relating
to the Excluded Information.
7.2 The Underwriter agrees to indemnify and hold harmless the Company,
its directors or officers and any person controlling the Company to the same
extent as the indemnity set forth in CLAUSE 7.1 above from the Company to the
Underwriter, but only with respect to (i) the Underwriter Information and (ii)
the Computational Materials, except to the extent of any errors in the
Computational Materials that are caused by errors in the Pool Information. In
addition, the Underwriter agrees to indemnify and hold harmless the Company, its
directors or officers and any person controlling the Company against any and all
losses, claims, damages, liabilities and expenses (including, without
limitation, reasonable attorneys' fees) caused by, resulting from, relating to,
or based upon any legend regarding original issue discount on any Certificate
resulting from incorrect information provided by the Underwriter in the
certificates described in SECTION 4 hereof.
7.3 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 7.1 or 7.2, 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 7.1 and by the Company in the case of parties
indemnified pursuant to SECTION 7.2. 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.
7.4 If the indemnification provided for in this SECTION 7 is
unavailable to an indemnified party under SECTION 7.1 or 7.2 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.
7.5 The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this SECTION 7 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 7.4 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 7 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 7.4; 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7.6 The indemnity and contribution agreements contained in this Section
7 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 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 Certificates.
SECTION 8. 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 Underwriter terminates this Agreement
in accordance with this SECTION 8, 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 Certificates.
SECTION 9. 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 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 the Company or any of its officers, directors or controlling
persons, and will survive delivery of and payment for the Certificates.
SECTION 10. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and will be mailed, delivered or telegraphed and
confirmed to the Underwriter 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 11. 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 7 hereof,
and their successors and assigns, and no other person will have any right or
obligation hereunder.
SECTION 12. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 13. 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 the Underwriter.
Very truly yours,
NATIONAL CITY MORTGAGE CAPITAL LLC
By:___________________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted
as of the date first above written.
[NAME OF UNDERWRITER]
By:_________________________
Name:
Title:
EXHIBIT A
[COUNSEL TO THE UNDERWRITER LETTERHEAD]
_________, 20__
[The Underwriter]
Re: National City Mortgage Capital LLC Mortgage Pass-Through Certificates,
Series 20[__-__]
Ladies and Gentlemen:
We have acted as counsel to __________(the "UNDERWRITER") in connection
with the sale by National City Mortgage Capital LLC, a Delaware limited
liability company (the "COMPANY"), and the purchase by the Underwriter pursuant
to an underwriting agreement dated ______,200_ (the "UNDERWRITING AGREEMENT") of
certificates entitled Mortgage Pass-Through Certificates, Series 20[__-__],
[Class A-1, Class A-2, Class A-4, Class A-5, Class R and Class M] [Class X-0,
Xxxxx X-0, Class A-3, Class R and Class M] (the "OFFERED CERTIFICATES"). The
Offered Certificates [, together with the Mortgage Pass-Through Certificates,
Series 20[__-__], [Class R] [and] [Class B]] comprise the entire issue of
Certificates entitled Mortgage Pass-Through Certificates, Series 20[__-__]
(collectively, the "CERTIFICATES"). The Certificates are issued pursuant to a
[Pooling and Servicing] [Trust] Agreement (the "POOLING AND SERVICING
AGREEMENT"), dated as of ________, 200_, among the Company, as trustee (the
"TRUSTEE"), and ________, [as certificate administrator (the "CERTIFICATE
ADMINISTRATOR")] [as servicer[s] (the "SERVICER[S]")]. The Certificates evidence
in the aggregate the entire beneficial interest in a trust fund (the "TRUST
FUND") consisting primarily of a pool of certain one- to four-family first and
second lien mortgage loans [or interests therein] [[__________] GNMA
Certificates (the "AGENCY SECURITIES")]. Capitalized terms used, but not defined
herein, shall have the meanings assigned to such terms in the Pooling and
Servicing Agreement.
We have examined such documents and records as we deemed appropriate,
including the following:
1._______Copy of the Certificate of Formation of the Company and all
amendments thereto, certified by the Secretary of State of the State of Delaware
to be a true and correct copy.
2._______Copy of the LLC Agreement of the Company certified by the
Secretary of the Company to be a true and correct copy.
3._______Certificate of the Secretary of State of the State of
Delaware, dated as of recent date, to the effect that the Company is in good
standing under the laws of the State of Delaware.
4._______Copy of resolutions adopted by the Board of Directors of the
Company in connection with the authorization, issuance and sale of the
Certificates, certified by the Secretary of Company to be a true and correct
copy.
5._______Officer's Certificate of the Company pursuant to Section 6.3
of the Underwriting Agreement.
6._______Signed copy of the Underwriting Agreement.
7._______Signed copy of the Pooling and Servicing Agreement.
8._______Specimens of the Offered Certificates.
9._______Signed copies of the Company's registration statement (File
No. 333-_____) on Form S-3 filed by the Company with the Securities and Exchange
Commission relating to Mortgage Pass-Through Certificates (the registration
statement in the form in which it became effective being hereinafter called the
"REGISTRATION STATEMENT").
10.______The final form of a prospectus dated _______, 20__ (the "BASIC
PROSPECTUS").
11.______The final form of a supplement dated _______, 20__ to the
Basic Prospectus relating specifically to the Certificates (the "PROSPECTUS
SUPPLEMENT"; the Basic Prospectus and Prospectus Supplement are herein
collectively referred to as the "PROSPECTUS.")
Based upon the foregoing, we are of the opinion that:
(a) The Registration Statement has become effective under the
Securities Act of 1933, as amended (the "ACT"), and, to the best of our
knowledge and information, no proceedings for a stop order have been
instituted or are threatened under Section 8(d) of the Act.
(b) The Registration Statement as of its effective date and
the Prospectus as of the date of the Prospectus Supplement, other than
the numerical, financial and statistical data contained therein, as to
which we express no opinion, comply as to form in all material respects
with the requirements of the Act and the rules thereunder.
(c) The Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Company.
[(d) The Pooling and Servicing Agreement has been duly and
validly authorized, executed and delivered by the Company and, assuming
that it has been duly and validly authorized, executed and delivered by
the other parties thereto, constitutes a valid, legal and binding
agreement of the Company, enforceable against the Company in accordance
with its terms subject to bankruptcy, insolvency, reorganization or
other similar laws affecting creditors' rights generally and, as to
enforceability, to general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.]
(e) The Offered Certificates, assuming that they have been
duly and validly authorized, executed and issued by the Trustee, will,
when authenticated as specified in the Pooling and Servicing Agreement
and delivered to the Underwriter pursuant to the Underwriting
Agreement, be entitled to the benefits of the Pooling and Servicing
Agreement.
(f) The statements in the Prospectus under the headings
"Material Federal Income Tax Consequences," "Certain Legal Aspects of
Mortgage Loans" and "ERISA Considerations," to the extent that they
constitute matters of New York or Federal law or legal conclusions with
respect thereto, have been reviewed by us and provide a fair summary of
such law or legal conclusions.
[(g) The Offered Certificates will be mortgage related
securities, as defined in Section 3(a)(41) of the Securities Exchange
Act of 1934, as amended, so long as the Underwritten Certificates are
rated in one of the two highest rating categories by at least one
nationally recognized statistical rating organization.]
(h) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the
Trust Fund is not required to be registered under the Investment
Company Act of 1940, as amended.
We have endeavored to see that the Registration Statement and the
Prospectus comply with the Act and the rules and regulations of the Securities
and Exchange Commission thereunder relating to registration statements on Form
S-3 and related prospectuses, but we cannot, of course, make any representation
to you as to the accuracy or completeness of statements of fact contained in the
Registration Statement or Prospectus. Nothing, however, has come to our
attention that would lead us to believe that the Registration Statement at the
time it became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus as of the date
of the Prospectus Supplement and at the date hereof contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (other than the numerical, financial
and statistical data contained in the Registration Statement or the Prospectus,
as to which we express no opinion).
This opinion is for your benefit only and is not to be relied upon by
any other person. The opinions expressed herein are limited to matters of
Federal law and the laws of the State of [_________].
Very truly yours,
[Counsel to the Underwriter]
EXHIBIT B
[COUNSEL TO TRUSTEE LETTERHEAD]
___________, 20__
National City Mortgage Capital LLC
[The Trustee]
[The Underwriter]
Ladies and Gentlemen:
We have acted as special counsel to ______________________ in its
capacity as trustee (the "TRUSTEE") in connection with the issuance and sale by
the Company of Mortgage Pass-Through Certificates, Series 20[__-__] (the
"Certificates") pursuant to a [pooling and servicing] [trust] agreement, dated
as of _____________ 1, 20_ (the "POOLING AND SERVICING AGREEMENT"), among the
Company, [as certificate administrator (the "CERTIFICATE ADMINISTRATOR")] [the
Servicer[s]] and __________, as trustee (the "TRUSTEE"). The Certificates
consist of [_____ classes designated as Class X-0, Xxxxx X-0, Class A-4, Class
A-5 (collectively the "CLASS A Certificates"); Class R (the "CLASS R
CERTIFICATES"; together with the Class A Certificates, the "Senior
Certificates"); Class M (the "CLASS M CERTIFICATES"); and Class B (the "CLASS B
CERTIFICATES"). The Class A Certificates [, the Class R Certificates] and the
Class M Certificates are referred to herein as the "OFFERED CERTIFICATES")].
Based on the foregoing and subject to the qualifications and matters of
reliance set forth herein, it is our opinion that:
1._______The Trustee is duly organized, validly existing and in good
standing as a under the laws of with full corporate and trust power and
authority to conduct its business and affairs as a Trustee.
2._______The Trustee has full corporate power and authority to execute
and deliver the Pooling and Servicing Agreement and the Certificates and to
perform its obligations thereunder.
3._______The Trustee has duly accepted the office of trustee under the
Pooling and Servicing Agreement.
4._______The Trustee has duly authorized, executed, issued and
delivered the Pooling and Servicing Agreement and has duly and validly
authorized, executed, issued and delivered the Certificates as the Trustee.
5._______The Pooling and Servicing Agreement constitutes the legal,
valid and binding agreements of the Trustee, enforceable against the Trustee in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
rights of creditors generally and by general principles of equity and the
discretion of the court, regardless of whether such enforcement is considered in
a proceeding in equity or at law, and except as enforceability may be determined
according to or limited by the laws of jurisdictions other than those specified
below.
In rendering the foregoing opinion, we have assumed that the Pooling
and Servicing Agreement have been duly authorized, executed and delivered by the
other parties thereto and are valid, legal, binding and enforceable obligations
of such parties.
We express no opinion as to any matter other than as expressly set
forth above, and, in conjunction therewith, we specifically express no opinion
as to the status of the Certificates or the Trust Fund under any federal or
state securities laws, including, but not limited to, the Securities Act of
1933, as amended, the Trust Indenture Act of 1939, as amended, and the
Investment Company Act of 1940, as amended.
This opinion is as of the date hereof and we undertake no, and disclaim
any, obligation to advise you of any change in any matter set forth herein. This
opinion has been furnished to you at your request in connection with the
transactions described herein, and it may not be relied upon by you for any
other purpose or by any other person without our prior written consent.
We are admitted to practice law under the laws of the State of
_________ and the opinion set forth above is limited to the laws of the State of
_________ and the laws of the United States of America.
Very truly yours,
[COUNSEL TO THE TRUSTEE]
EXHIBIT C
EXCLUDED INFORMATION
EXHIBIT D
UNDERWRITER INFORMATION
EXHIBIT E
______, 20__
National City Mortgage Capital LLC
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Re: National City Mortgage Capital LLC Mortgage Pass-Through Certificates,
Series 20[__-__], [CLASS A], [CLASS R] AND [CLASS M]
----------------------------------------------------------------------
Pursuant to Section 4 of the Underwriting Agreement, dated _____, 20__,
among National City Mortgage Capital LLC and _____, (the "UNDERWRITER") relating
to the Certificates referenced above (the "UNDERWRITING AGREEMENT"), the
undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the Certificates
was ___% [CPR] [SPA].
(b) Set forth below is (i), the first price, as a percentage
of the principal balance of each class of Certificates, at which 10% of
the aggregate principal balance of each such class of Certificates was
sold to the public at a single price, if applicable, or (ii) if more
than 10% of a class of Certificates have been sold to the public but no
single price is paid for at least 10% of the aggregate principal
balance of such class of Certificates, then the weighted average price
at which the Certificates of such class were sold expressed as a
percentage of the principal balance of such class of Certificates, or
(iii) if less than 10% of the aggregate principal balance of a class of
Certificates has been sold to the public, the purchase price for each
such class of Certificates paid by the Underwriter expressed as a
percentage of the principal balance of such class of Certificates
calculated by: (1) estimating the fair market value of each such class
of Certificates as of __________, 20__; (2) adding such estimated fair
market value to the aggregate purchase price of each class of
Certificates described in clause (i) or (ii) above; (3) dividing each
of the fair market values determined in clause (1) by the sum obtained
in clause (2); (4) multiplying the quotient obtained for each class of
Certificates in clause (3) by the purchase price paid by the
Underwriter for all the Certificates; and (5) for each class of
Certificates, dividing the product obtained from such class of
Certificates in clause (4) by the original principal balance of such
class of Certificates:
[Class A: ]
[Class R: ]
[Class M: ]
[* less than 10% has been sold to the public]
The prices set forth above do not include accrued interest with respect to
periods before closing.
[THE UNDERWRITER]
By:
Name:
Title:
EXHIBIT F
FORM OF LEGEND
