National City Mortgage Capital LLC Mortgage Pass-Through Certificates, Series 20[__-__] FORM OF UNDERWRITING AGREEMENT
EXHIBIT
1.1
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 ▇-▇,
▇▇▇▇▇ ▇-▇, [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”.
The
Company further proposes to prepare, after the final terms of all classes of
the
Certificates have been established, a Free Writing Prospectus that will contain
substantially all information that will appear in the Prospectus Supplement,
to
the extent that such information is known at that time and minus specific
sections including the Method of Distribution section (such Free Writing
Prospectus, together with the Basic Prospectus, the “Definitive Free Writing
Prospectus”). The Definitive Free Writing Prospectus must be provided to each
investor prior to the time of Contract of Sale (as defined herein).
(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”).
In
addition, the Definitive Free Writing Prospectus, as of the date thereof and
as
of the Closing Date, did not and 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. The effective date shall mean the earlier
of the date by which the Prospectus Supplement is first used and the time of
the
first Contract of Sale to which such Prospectus Supplement relates. 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 is not, as of the date upon which it delivers the Definitive Free
Writing Prospectus, an Ineligible Issuer, as such term is defined in Rule 405
of
the 1933 Act Regulations.
(d) 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.
(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]
[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
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ 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 the Underwriters will solicit offers to purchase the
Certificates as follows:
| i) |
Prior
to the time you have received the Definitive Free Writing Prospectus
you
may, in compliance with the provisions of this Agreement, solicit
offers
to purchase Certificates; provided, that you shall not accept any
such
offer to purchase a Certificate or any interest in any Certificate
or
Mortgage Loan or otherwise enter into any Contract of Sale for any
Certificate, any interest in any Certificate or any Mortgage Loan
prior to
the investor’s receipt of Definitive Free Writing
Prospectus.
|
| ii) |
Any
Free Writing Prospectus (other than the Definitive Free Writing
Prospectus) relating to the Certificates used by an Underwriter in
compliance with the terms of this Agreement prior to the time such
Underwriter has entered into a Contract of Sale for Certificates
shall
prominently set forth substantially the following
statement:
|
The
information in this free writing prospectus is preliminary, and will be
superseded by the Definitive Free Writing Prospectus. This free writing
prospectus is being delivered to you solely to provide you with information
about the offering of the Certificates referred to in this free writing
prospectus and to solicit an offer to purchase the Certificates, when, as
and if
issued. Any such offer to purchase made by you will not be accepted and will
not
constitute a contractual commitment by you to purchase any of the Certificates
until we have accepted your offer to purchase Certificates. We will not accept
any offer by you to purchase Certificates, and you will not have any contractual
commitment to purchase any of the Certificates until after you have received
the
Definitive Free Writing Prospectus. You may withdraw your offer to purchase
Certificates at any time prior to our acceptance of your offer.
“Written
Communication” has the same meaning as that term is defined in Rule 405 of the
1933 Act Regulations.
| iii) |
Any
Free Writing Prospectus relating to Certificates and used by an
Underwriter in connection with marketing the Certificates, including
the
Definitive Free Writing Prospectus, shall prominently set forth
substantially the following statement:
|
The
Certificates referred to in these materials are being sold when, as and if
issued. You are advised that Certificates may not be issued that have the
characteristics described in these materials. Our obligation to sell such
Certificates to you is conditioned on the mortgage loans and certificates
having
the characteristics described in these materials. If for any reason we do
not
deliver such Certificates, we will notify you, and neither the issuer nor
any
underwriter will have any obligation to you to deliver all or any portion
of the
Certificates which you have committed to purchase, and none of the issuer
nor
any underwriter will be liable for any costs or damages whatsoever arising
from
or related to such non-delivery.
4.3 It
is
understood that you will not enter into a Contract of Sale with any investor
until the Definitive Free Writing Prospectus has been conveyed to the investor.
For purposes of this Agreement, Contract of Sale has the same meaning as in
Rule
159 of the 1933 Act Regulations and all Commission guidance relating to Rule
159. The Definitive Free Writing Prospectus shall prominently set forth
substantially the following statement:
This
Definitive Free Writing Prospectus supersedes the information in any free
writing prospectus previously delivered in connection with this offering, to
the
extent that this Definitive Free Writing Prospectus is inconsistent with any
information in any free writing prospectus delivered in connection with this
offering.
4.4 It
is
understood that the Underwriters may prepare and provide to prospective
investors certain Free Writing Prospectuses (as defined below), subject to
the
following conditions:
| i) |
Unless
preceded or accompanied by a prospectus satisfying the requirements
of
Section 10(a) of the Act, the Underwriters shall not convey or deliver
any
Written Communication to any person in connection with the initial
offering of the Certificates, unless such Written Communication either
(i)
is made in reliance on Rule 134 under the Act, (ii) constitutes a
prospectus satisfying the requirements of Rule 430B under the Act,
(iii)
is the Definitive Free Writing Prospectus, or (iv) both (1) constitutes
a
Free Writing Prospectus (as defined below) used in reliance on Rule
164
and (2) includes only information that is within the definition of
ABS
Informational and Computational Materials as defined in Item 1100
of
Regulation AB, or Permitted Additional
Materials.
|
| ii) |
Each
Underwriter shall comply with all applicable laws and regulations
in
connection with the use of Free Writing Prospectuses, including but
not
limited to Rules 164 and 433 of the 1933 Act Regulations and all
Commission guidance relating to Free Writing Prospectuses, including
but
not limited to Commission Release No.
33-8591.
|
| iii) |
For
purposes hereof, “Free Writing Prospectus” shall have the meaning given
such term in Rules 405 and 433 of the 1933 Act Regulations. “Issuer
Information” shall mean information included in a Free Writing Prospectus
that both (i) is within the types of information specified in clauses
(1)
to (5) of footnote 271 of Commission Release No. 33-8591 (Securities
Offering Reform) as shown in Exhibit G hereto and (ii) has been either
prepared by, or has been reviewed and approved by, the Company.
“Underwriter Derived Information” shall refer to information of the type
described in clause (5) of such footnote 271 when prepared by the
Underwriters. “Permitted Additional Materials” shall mean information that
is not ABS Informational and Computational Materials and (x) that
are
referred to in Section 4(e)(xii)), (y) that constitute Certificate
price,
yield, weighted average life, subscription or allocation information,
or a
trade confirmation, or (z) otherwise with respect to which the Company
has
provided written consent to the Underwriters to include in a Free
Writing
Prospectus. As used herein with respect to any Free Writing Prospectus,
“Pool Information” means the 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 Underwriters
at
the time most recent to the date of such Free Writing
Prospectus.
|
| iv) |
All
Free Writing Prospectuses provided to prospective investors, whether
or
not filed with the Commission, shall bear a legend including substantially
the following statement:
|
“THE
COMPANY HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE
SEC
FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST, YOU
SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS
THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER
AND THE OFFERING. YOU MAY GET THESE DOCUMENTS AT NO CHARGE BY VISITING ▇▇▇▇▇
ON
THE SEC WEB SITE AT ▇▇▇.▇▇▇.▇▇▇ [AT “WWW.[▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/____”, OR AT
UNDERWRITER WEBSITE]. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR ANY DEALER
PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS AT NO
CHARGE IF YOU REQUEST IT BY CALLING TOLL-FREE [__________] OR VIA E-MAIL AT
________________________.”
The
Company shall have the right to require additional specific legends or notations
to appear on any Free Writing Prospectus, the right to require changes regarding
the use of terminology and the right to determine the types of information
appearing therein with the approval of the Underwriters (which shall not be
unreasonably withheld).
| v) |
The
Underwriters shall deliver to the Company and its counsel (in such
format
as required by the Company) prior to the proposed date of first use
thereof, (i) any Free Writing Prospectus prepared by or on behalf
of that
Underwriter that contains any information that, if reviewed and approved
by the Company, would be Issuer Information, and (ii) any Free Writing
Prospectus or portion thereof prepared by that Underwriter that contains
only a description of the final terms of the Certificates after such
terms
have been established for all classes of Certificates being publicly
offered. No information in any Free Writing Prospectus (other than
the
Definitive Free Writing Prospectus) shall consist of information
of a type
that is not included within the definition of ABS Informational and
Computational Materials, or is not Permitted Additional Materials.
To
facilitate filing to the extent required by Section 5(b) or 4(g),
as
applicable, all Underwriter Derived Information shall be set forth
in a
document separate from the document including Issuer Information.
All Free
Writing Prospectuses described in this subsection (v) must be approved
by
the Company before the Underwriters provide the Free Writing Prospectus
to
investors pursuant to the terms of this Agreement. Notwithstanding
the
foregoing, the Underwriters shall not be required to deliver any
Free
Writing Prospectus to the extent that it does not contain substantive
changes from or additions to any Free Writing Prospectus previously
approved by the Company.
|
| vi) |
The
Underwriters shall provide the Company with a letter from [__________],
certified public accountants, prior to the Closing Date, with respect
to
any Free Writing Prospectus provided by that Underwriter to the Company
under Section 4(e)(v), satisfactory in form and substance to the
Company
and their counsel and the Underwriters, to the effect that such
accountants have performed certain specified procedures, all of which
have
been agreed to by the Company and the Underwriters, as a result of
which
they determined that all accounting, financial or statistical information
that is included in such Free Writing Prospectus, is accurate except
as to
such matters that are not deemed by the Company and the Underwriters
to be
material. The foregoing letter shall be at the expense of the respective
Underwriter.
|
| vii) |
None
of the information in the Free Writing Prospectuses may conflict
with the
information contained in the Prospectus or the Registration
Statement.
|
| viii) |
The
Company shall not be obligated to file any Free Writing Prospectuses
that
have been determined to contain any material error or omission, unless
the
Company is required to file the Free Writing Prospectus pursuant
to
Section 5(b) below. In the event that an Underwriter becomes aware
that,
as of the date on which an investor entered into an agreement to
purchase
any Certificates, any Free Writing Prospectus prepared by or on behalf
of
that Underwriter and delivered to such investor contained any untrue
statement of a material fact or omitted to state a material fact
necessary
in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading (such Free
Writing Prospectus, a “Defective Free Writing Prospectus”), such
Underwriter shall notify the Company thereof as soon as practical
but in
any event within one business day after
discovery.
|
| ix) |
If
any Underwriter does not provide any Free Writing Prospectuses to
the
Company pursuant to subsection (v) above, that 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 by the Company as a Free Writing Prospectus
(other than the Definitive Free Writing Prospectus) in accordance
with the
1933 Act Regulations.
|
| x) |
In
the event of any delay in the delivery by the Underwriters to the
Company
of any Free Writing Prospectuses required to be delivered in accordance
with subsection (v) above, or in the delivery of the accountant’s comfort
letter in respect thereof pursuant to subsection (vi) above, the
Company
shall have the right to delay the release of the Prospectus to investors
or to the Underwriters, to delay the Closing Date and to take other
appropriate actions in each case as necessary in order to allow the
Company to comply with its agreement set forth in Section 5(b) to
file the
Free Writing Prospectuses by the time specified
therein.
|
| xi) |
The
Underwriters represent that it has in place, and covenants that it
shall
maintain internal controls and procedures which it reasonably believes
to
be sufficient to ensure full compliance with all applicable legal
requirements of the 1933 Act Regulations with respect to the generation
and use of Free Writing Prospectuses in connection with the offering
of
the Certificates. In addition, the Underwriters shall, for a period
of at
least three years after the date hereof, maintain written and/or
electronic records of any Free Writing Prospectus used to solicit
offers
to purchase Certificates to the extent not filed with the
Commission;
|
| xii) |
It
is understood and agreed that all information provided by any 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. In connection therewith, the Underwriters
agree that it shall not provide any information constituting Issuer
Information through the foregoing media unless that information is
contained either in the Definitive Free Writing Prospectus or in
a Free
Writing Prospectus delivered in compliance with Section
4(e)(v).
|
4.5 The
Underwriters covenant with the Company that after the final Prospectus is
available such Underwriter 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.
4.6 The
Underwriters shall file any Free Writing Prospectus that has been distributed
by
that Underwriter in a manner that could lead to its broad, unrestricted
dissemination not later than the date of first use, provided that if that Free
Writing Prospectus contains only information of a type included within the
definition of ABS Informational and Computational Materials then such filing
shall be made within the later of two business days after the Underwriters
first
provide this information to investors and the date upon which the Company is
required to file the Prospectus Supplement with the Commission pursuant to
Rule
424(b)(3) of the 1933 Act Regulations; provided further, that the Company shall
not be required to file any Free Writing Prospectus that does not contain
substantive changes from or additions to a Free Writing Prospectus previously
filed with the Commission.
4.7 The
Underwriters further agree that (i) if the Prospectus is not delivered with
the
confirmation in reliance on Rule 172, it will include in every confirmation
sent
out the notice required by Rule 173 informing the investor that the sale was
made pursuant to the Registration Statement and that the investor may request
a
copy of the Prospectus from such Underwriter; (ii) if a paper copy of the
Prospectus is requested by a person who receives a confirmation, such
Underwriter shall deliver a paper copy of such Prospectus; (iii) if an
electronic copy of the Prospectus is delivered by an Underwriter for any
purpose, such copy shall be the same electronic file containing the Prospectus
in the identical form transmitted electronically to such Underwriter by or
on
behalf of the Company specifically for use by such Underwriter pursuant to
this
Section 4(h) ; for example, if the Prospectus is delivered to an Underwriter
by
or on behalf of the Company in a single electronic file in .pdf format, then
such Underwriter will deliver the electronic copy of the Prospectus in the
same
single electronic file in .pdf format. Each Underwriter further agrees that
(i)
if it delivers to an investor the Prospectus in .pdf format, 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 Free Writing
Prospectuses, 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® or Microsoft Excel® format and not in a pdf, except to the
extent that the Company, in its sole discretion, waives such requirements.
| i) |
Each
Underwriter hereby represents and agrees to the terms set forth in
Exhibit
B hereto which are incorporated herein by
reference.
|
4.8 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 The
Company shall file any Free Writing Prospectus prepared by the Company
(including the Definitive Free Writing Prospectus), and any Issuer Information
contained in any Free Writing Prospectus provided to it by each Underwriter
under Section 4(e)(v), not later than the date of first use of the Free Writing
Prospectus, except that:
| i) |
As
to any Free Writing Prospectus or portion thereof that contains only
(A) a
description of the final terms of the Certificates after such terms
have
been established for all classes of Certificates being publicly offered,
may be filed by the Company within two days of the later of the date
such
final terms have been established for all classes of Certificates
being
publicly offered and the date of first use and (B) a description
of the
terms of the Certificates that does not reflect the final terms after
they
have been established for all classes of all Certificates is not
required
to be filed; and
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| ii) |
Notwithstanding
clause (i) above, as to any Free Writing Prospectus or portion thereof
required to be filed that contains only information of a type included
within the definition of ABS Informational and Computational Materials,
the Company shall file such Free Writing Prospectus or portion thereof
within the later of two business days after the Underwriter first
provides
this information to investors and the date upon which the Company
is
required to file the Prospectus Supplement with the Commission pursuant
to
Rule 424(b)(3) of the Act.
|
provided
further, that prior to such use of any Free Writing Prospectuses by the Company,
the Underwriter must comply with its obligations pursuant to Section 4(e) and
that the Company shall not be required to file any Free Writing Prospectus
that
does not contain substantive changes from or additions to a Free Writing
Prospectus previously filed with the Commission.
5.4 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.
5.5 If
the
Company or any Underwriter determines or becomes aware that any Written
Communication (including without limitation any Free Writing Prospectus) or
oral
statement contains an untrue statement of material fact or omits to state a
material fact necessary to make the statements, in light of the circumstances
under which they were made, not misleading at the time that a Contract of Sale
was entered into with any investor, when considered in conjunction with all
information conveyed at the time of Contract of Sale, either the Company or
that
Underwriter may prepare corrective information with notice to the other party
and any other Underwriters, and the Underwriter dealing with that investor
shall
deliver such information in a manner reasonably acceptable to that Underwriter
and the Company, to any person with whom a Contract of Sale was entered into,
and such information shall provide any such person with the
following:
| i) |
Adequate
disclosure of the contractual
arrangement;
|
| ii) |
Adequate
disclosure of the person’s rights under the existing Contract of Sale at
the time termination is sought;
|
| iii) |
Adequate
disclosure of the new information that is necessary to correct the
misstatements or omissions in the information given at the time of
the
original Contract of Sale; and
|
| iv) |
A
meaningful ability to elect to terminate or not terminate the prior
Contract of Sale and to elect to enter into or not enter into a new
Contract of Sale.
|
To
the
extent that the Underwriters incur any costs to the investor in connection
with
any such termination or reformation of a Contract of Sale, the Company shall
reimburse the Underwriters for such costs to the extent that the defective
information was of a type that the Company is responsible for under Section
8(a).
5.6 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.
5.7 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.
5.8 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.
5.9 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.
5.10 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.
5.11 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ 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 (i) arise out of or are based upon any untrue statement
or
alleged untrue statement of a material fact contained in the Registration
Statement relating to the applicable Registered Certificates (the “Applicable
Registration Statement”) as it became effective or in any amendment or
supplement thereof, or in the Applicable Registration Statement or the related
Prospectus, or in any amendment thereof, or arise out of or are based upon
the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading (ii)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Definitive Free Writing Prospectus, or
any
Issuer Information contained in any other Free Writing Prospectus, or any
omission or alleged omission to state therein a material fact necessary to
make
the statements therein, in light of the circumstances under which they were
made, not misleading, or (iii) are caused by any untrue statement of a material
fact or alleged untrue statement of a material fact contained in any Free
Writing Prospectus that was caused by any error in any Pool Information;
provided, however, that the Company will not be liable in any such case to
the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission based upon any information with respect to which any
Underwriter has agreed to indemnify the Company pursuant to Section
7.2.
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) Derived
Information (ii) the Underwriter Information and (iii) any Free Writing
Prospectus prepared or used by that Underwriter for which the conditions set
forth in Section 4 above are not satisfied with respect to the prior approval
by
the Company, (iv) any portion of any Free Writing Prospectus (other than the
Definitive Free Writing Prospectus) prepared or used by that Underwriter not
constituting Issuer Information, (v) and any liability directly resulting from
that Underwriter’s failure to provide any investor with the Definitive Free
Writing Prospectus prior to entering into a Contract of Sale with such investor
or failure to file any Free Writing Prospectus required to be filed by that
Underwriter in accordance with Section 4; provided, however, that the
indemnification set forth in this 7.2 shall not apply to the extent of any
error
in any Free Writing Prospectus that was caused by any error in any Pool
Information..
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.
7.7 For
purposes hereof, as to each Underwriter, the term “Derived Information” means
such information, if any, in a portion of any Free Writing Prospectus (other
than the Definitive Free Writing Prospectus) not constituting Issuer Information
that is not contained in either (i) the Basic Prospectus, any Preliminary Final
Prospectus or Final Prospectus or amendments or supplements thereto, taking
into
account information incorporated therein by reference (other than information
incorporated by reference from the Free Writing Prospectus (other than the
Definitive Free Writing Prospectus) not constituting Issuer Information) or
(ii)
any Pool Information, except to the extent that any omission or alleged omission
in Derived Information results from a Pool Error.
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, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
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: | /s/ | |||
|
|
||||
|
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 ▇-▇,
▇▇▇▇▇ ▇-▇, 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__
[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 ▇-▇, ▇▇▇▇▇ ▇-▇,
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__
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
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
EXHIBIT
G
FOOTNOTE
271 INFORMATION
[Excerpt
from Offering Reform adopting release-bold headings added for convenience of
reference]
In
the
case of asset-backed issuers certain information comprehended within the
definition of ABS informational and computational material is analogous to
the
term of securities and is therefore issuer information. For example, we would
expect that the following categories of such material, which are derived from
the definition of ABS informational and computational materials, are generally
issuer information:
(1) Structural
information-factual information regarding the asset-backed securities being
offered and the structure and basic parameters of the securities, such as the
number of classes, seniority, payment priorities, terms of payment, the tax,
ERISA or other legal conclusions of counsel, and descriptive information
relating to each class (e.g., principal amount, coupon, minimum denomination,
price or anticipated price, yield, weighted average life, credit enhancements,
anticipated ratings, and other similar information relating to the proposed
structure of the offering);
(2) Collateral
information-factual information regarding the pool assets underlying the
asset-backed securities, including origination, acquisition and pool selection
criteria, information regarding any prefunding or revolving period applicable
to
the offering, information regarding significant obligors, data regarding the
contractual and related characteristics of the underlying pool assets (e.g.,
weighted average coupon, weighted average maturity, delinquency and loss
information and geographic distribution) and other factual information
concerning the parameters of the asset pool appropriate to the nature of the
underlying assets, such as the type of assets comprising the pool and the
programs under which the loans were originated;
(3) Key
parties information-identification of key parties to the transaction, such
as
servicers, trustees, depositors, sponsors, originators and providers of credit
enhancement or other support, including information about any such
party;
(4) Static
pool data-static pool data, as referenced in Item 1105 of Regulation AB [17
CFR
229.1105], such as for the sponsor’s and/or servicer’s portfolio, prior
transactions or the asset pool itself; and
(5) Issuer
computational material-to the extent that the information is provided by the
issuer, depositor, affiliated depositor, or sponsor, statistical information
displaying for a particular class of asset-backed securities the yield, average
life, expected maturity, interest rate sensitivity, cash flow characteristics,
total rate of return, option adjusted spread or other financial or statistical
information related to the class or classes under specified prepayment, interest
rate, loss or other hypothetical scenarios. (Where such information is prepared
by an underwriter or dealer, it is not issuer information, even when derived
from issuer information.)