EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT (ITERATIVE)
RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
Mortgage Pass-Through Certificates, Series 20[__]-[____]
Initial Principal Amount Class Initial Pass-Through Rate
------------------------ ---------------------- -------------------------
$[____] Class A-1 Certificates [___]%
$[____] Class A-2 Certificates [___]%
$[____] Class A-3 Certificates [___]%
$[____] Class R Certificates [___]%
UNDERWRITING AGREEMENT
[________], 20[__]
[Name of Underwriter,]
[as representative of the Underwriters ("Representative")]
[Address of Underwriter]
Ladies and Gentlemen:
Residential Funding Mortgage Securities I, Inc., a Delaware corporation
(the "Company"), proposes to sell to you (also referred to herein as the
"Underwriter") Home Equity Loan Pass-Through Certificates, Series 20[__]-[____],
Class A-1, Class A-2, Class A-3, and Class R Certificates (collectively, the
"Certificates"), other than a de minimis portion of the Class R Certificates,
having the aggregate principal amounts and Pass-Through Rates set forth above.
The Certificates, together with the Class A-V, Class A-P, Class M-1, Class M-2,
Class M-3, Class B-1, Class B-2 and Class B-3 Certificates of the same series,
will evidence the entire beneficial interest in the Trust Fund (as defined in
the Pooling and Servicing Agreement referred to below), consisting primarily of
a pool (the "Pool") of conventional, fixed-rate, one- to four-family residential
first and second lien mortgage loans (the "Mortgage Loans") as described in the
Prospectus Supplement (as hereinafter defined) to be sold by the Company. A de
minimis portion of the Class R Certificates will not be sold hereunder and will
be held by Residential Funding Corporation ("Residential Funding").
The Certificates will be issued pursuant to a pooling and servicing
agreement, dated as of [_____] 1, 20[__] (the "Cut-off Date") (the "Pooling and
Servicing Agreement"), among the Company, as seller, Residential Funding, as
master servicer, and [__________], as trustee (the "Trustee"). The Certificates
are described more fully in the Base Prospectus and the Prospectus Supplement
(each as hereinafter defined), which the Company has furnished to you.
1. Representations, Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with you 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 Home Equity Loan 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 you. 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 prospectus
supplement (the "Prospectus Supplement"), to the prospectus dated [_____]
[__], 20[__] (the "Base Prospectus"), relating to the Certificates and the
method of distribution thereof. Such registration statement (No.
333-[______]) including exhibits thereto and any information incorporated
therein by reference, as amended at the date hereof, is hereinafter called
the "Registration Statement"; and the Base Prospectus and the Prospectus
Supplement and any information incorporated therein by reference, together
with any amendment thereof or supplement thereto authorized by the Company
on or prior to the Closing Date (as defined herein) for use in connection
with the offering of the Certificates, are hereinafter called the
"Prospectus."
(b) The Registration Statement has become effective, and the
Registration Statement as of the effective date (the "Effective Date," as
defined in this paragraph), 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 each Issuer Free Writing Prospectus (as defined
herein) as of its date did not and at all times prior to the date of the
Prospectus Supplement will not, 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
(except in the case of any Issuer Free Writing Prospectus, any omission
relating to any Senior Structure Information); provided, however, that
neither the Company nor Residential Funding makes 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 therein that is Excluded
Information (as defined herein); and provided, further, that neither the
Company nor Residential Funding makes any representations or warranties as
to either (i) any information contained in any Underwriter Prepared Issuer
FWP (as defined herein) or Underwriter Free Writing Prospectus (as defined
herein) except, in each case, to the extent of (x) any information set
forth therein that constitutes Pool Information (as defined below) or (y)
any information accurately extracted from any Issuer Free Writing
Prospectus and included in any Underwriter Prepared Issuer FWP or
Underwriter Free Writing Prospectus, or (ii) any information contained in
or omitted from the portions of the Prospectus identified by underlining or
other highlighting as shown in Exhibit F (the "Underwriter Information").
The Effective Date shall mean the
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earlier of the date on which the Prospectus Supplement is first used and
the time of the first Contract of Sale (as defined herein) to which such
Prospectus Supplement relates. The initial effective date of the
Registration Statement was within three years of the Closing Date. If the
third anniversary of the initial effective date occurs within six months
after the Closing Date, the Company will use best efforts to take such
action as may be necessary or appropriate to permit the public offering and
sale of the Certificates as contemplated hereunder. The Company
acknowledges that the Underwriter Information constitutes the only
information furnished in writing by you or on your behalf for use in
connection with the preparation of the Registration Statement or the
Prospectus, and the Underwriter confirms that the Underwriter Information
is correct.
(c) (i)"ABS Informational and Computational Materials" shall have
the meaning given such term in Item 1101 of Regulation AB.
(ii) "Approved Offering Materials" means with respect to any
class of Certificates anticipated to be rated in the highest category
by any Rating Agency, collectively the following documents as most
recently provided by the Company and designated in writing by the
Company as Approved Offering Materials prior to the time of any
Contract of Sale: (i) one or more term sheets, providing factual
information about the Certificates and the structure and basic
parameters thereof (excluding information about the subdivision of the
senior classes into tranches), the basic terms of the subordination or
other credit enhancements if known, factual information about the
Mortgage Loans (which may include parameters or "stips" or tabular
data prepared by the Company), the identity of and basic information
about key parties to the transaction known to the Company, and the
tax, ERISA and SMMEA characteristics of the Certificates, (ii) a term
sheet supplement, containing risk factors and additional information
of the type to appear in the Prospectus Supplement to the extent
known, and (iii) the Base Prospectus, which may be provided by a
weblink. Each of the items described in (i) and (ii) in the preceding
sentence shall constitute an Issuer Free Writing Prospectus and any
additional information provided by the Underwriter shall constitute an
Underwriter Free Writing Prospectus or Underwriter Prepared Issuer
FWP, as the case may be. With respect to any class of Certificates
anticipated to be rated in the second highest or a lower category by
any Rating Agency, "Approved Offering Materials" means the Prospectus.
(iii) "Contract of Sale" has the same meaning as in Rule 159
of the 1933 Act Regulations and all Commission guidance relating to
Rule 159.
(iv) "Excluded Information" shall mean, with respect to each
of the Registration Statement and the Prospectus, the information
identified by underlining or other highlighting as shown on Exhibit E.
(v) "Free Writing Prospectus" shall have the meaning given
such term in Rules 405 and 433 of the 1933 Act Regulations.
(vi) "Issuer Free Writing Prospectus" shall mean any Free
Writing Prospectus prepared by or on behalf of the Company and
identified by the
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Company as an Issuer Free Writing Prospectus and relating to the
Certificates or the offering thereof.
(vii) "Issuer Information" shall mean any information of the
type specified in clauses (1) - (5) of footnote 271 of Commission
Release No. 33-8591 (Securities Offering Reform), other than
Underwriter Derived Information. Consistent with such definition,
"Issuer Information" shall not be deemed to include any information in
a Free Writing Prospectus solely by reason of the Company's review of
the materials pursuant to Section 4.4(e) below and, consistent with
Securities Offering Reform Questions and Answers, November 30, 2005
promulgated by the staff of the Commission, "Issuer Information" shall
not be deemed to include any information in a Free Writing Prospectus
solely by reason that the Underwriter has agreed not to use such Free
Writing Prospectus without consent of the Company.
(viii) "Permitted Additional Materials" shall mean
information that is not ABS Informational and Computational Materials
and (x) that are referred to in Section 4.4(c) so long as any Issuer
Information provided by the Underwriter pursuant to Section 4.4(c) is
limited to information included within the definition of ABS
Informational and Computational Materials, (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
Underwriter to include in a Free Writing Prospectus.
(ix) "Pool Information" means with respect to any Free
Writing Prospectus, 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 or Residential
Funding to the Underwriter at the time most recent to the date of such
Free Writing Prospectus.
(x) "Senior Structure Information" shall mean, with respect
to each class of Certificates anticipated to be rated in the highest
category by any Rating Agency (collectively, the "Senior
Certificates"), (i) the Pass-Through Rate if a fixed rate, or the
formula for determining the Pass-Through Rate, (ii) the terms and the
provider of any yield maintenance agreement, swap agreement or other
agreement that provides payments payable on any class of the Senior
Certificates, (iii) the terms and the provider of any surety bond,
financial guaranty insurance policy, or other insurance policy
regarding any class of the Senior Certificates not known to the
Company when the Approved Offering Materials were prepared, (iv) the
allocation to each class of Senior Certificates of the aggregate
amount of the cashflow payable among the Senior Certificates
collectively, and (v) the allocation to each class of Senior
Certificates of the aggregate amount of any Realized Losses allocable
to the Senior Certificates collectively.
(xi) "Underwriter Derived Information" shall refer to
information of the type described in clause (5) of footnote 271 of
Commission Release No. 33-8591 (Securities Offering Reform) when
prepared by the
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Underwriter, including traditional computational and analytical
materials prepared by the Underwriter.
(xii) "Underwriter Free Writing Prospectus" shall mean all
Free Writing Prospectuses prepared by or on behalf of the Underwriter
other than any Underwriter Prepared Issuer FWP, including any
Permitted Additional Materials.
(xiii) "Underwriter Prepared Issuer FWP" shall mean any Free
Writing Prospectus or portion thereof prepared by or on behalf of the
Underwriter that contains only a description of the final terms of the
Certificates or of the offering of the Certificates after the final
terms have been established for all classes of Senior Certificates.
(xiv) "Written Communication" shall have the meaning given
such term in Rule 405 of the 1933 Act Regulations.
(d) The Company has been duly incorporated and is validly
existing as a corporation 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) The Company was not, as of any date on or after which a bona
fide offer (as used in Rule 164(h)(2) of the 1933 Act Regulations) of the
Certificate is made an Ineligible Issuer, as such term is defined in Rule
405 of the 1933 Act Regulations. The Company 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.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) As of the Closing Date (as defined herein) the Certificates
will conform in all material respects to the description thereof contained
in the Prospectus and the representations and warranties of the Company in
the Pooling and Servicing Agreement will be true and correct in all
material respects.
1.2 Residential Funding represents and warrants to, and agrees with
you that as of the Closing Date the representations and warranties of
Residential Funding in the Pooling and Servicing Agreement will be true and
correct in all material respects.
1.3 The Underwriter represents and warrants to and agrees with the
Company and Residential Funding that:
(a) No purpose of the Underwriter relating to the purchase of the
Class R Certificates by the Underwriter is or will be to enable the Company
to impede the assessment or collection of any tax.
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(b) The Underwriter has no present knowledge or expectation that
it will be unable to pay any United States taxes owed by it so long as any
of the Certificates remain outstanding.
(c) The Underwriter has no present knowledge or expectation that
it will become insolvent or subject to a bankruptcy proceeding for so long
as any of the Certificates remain outstanding.
(d) No purpose of the Underwriter relating to any sale of any of
the Class R Certificates by the Underwriter will be to enable it to impede
the assessment or collection of tax. In this regard, the Underwriter hereby
represents to and for the benefit of the Company and Residential Funding
that the Underwriter intends to pay taxes associated with holding the Class
R Certificates (other than with respect to the portion of each of the Class
R Certificates retained by Residential Funding), as they become due, fully
understanding that it may incur tax liabilities in excess of any cash flows
generated by the Class R Certificates.
(e) The Underwriter will, in connection with any transfer it
makes of the Class R Certificates, obtain from its transferee the affidavit
required by Section 5.02(f)(i)(B)(I) of the Pooling and Servicing
Agreement, will not consummate any such transfer if it knows or believes
that any representation contained in such affidavit is false and will
provide the Trustee with the Certificate required by Section
5.02(f)(i)(B)(II) of the Pooling and Servicing Agreement.
(f) The Underwriter hereby certifies that (i) with respect to any
classes of Certificates issued in authorized denominations or Percentage
Interests of less than a notional amount of $2,000,000 or a Percentage
Interest of 20% the fair market value of each such Certificate sold to any
person 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 the minimum denomination indicated for such class of Certificates in
the Prospectus Supplement.
(g) The Underwriter will have funds available at U.S. Bank
National Association, 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 Residential Funding maintained at such bank.
(h) As of the date hereof and as of the Closing Date, the
Underwriter has complied with all of its obligations hereunder and all
information contained in any Underwriter Free Writing Prospectus and in any
Underwriter Prepared Issuer FWP as used in connection with any Contract of
Sale and all Underwriter Information are accurate in all material respects
(taking into account the assumptions explicitly set forth in such
Underwriter Prepared Issuer FWP or Underwriter Free Writing Prospectus),
except to the extent of (x) any errors therein that are caused by errors or
omissions in the Pool Information or (y) information accurately extracted
from any Issuer Free Writing
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Prospectus and included in any Underwriter Prepared Issuer FWP or
Underwriter Free Writing Prospectus.
(i) Prior to the Closing Date, the Underwriter shall notify the
Company and Residential Funding of the earlier of (x) the date on which the
Prospectus Supplement is first used and (y) the time of the first Contract
of Sale to which such Prospectus Supplement relates.
1.4 The Underwriter covenants and agrees to pay directly, or reimburse
the Company or Residential Funding upon demand for (i) any and all taxes
(including penalties and interest) owed or asserted to be owed by the Company or
Residential Funding as a result of a claim by the Internal Revenue Service that
the transfer of the Class R Certificates to the Underwriter hereunder or any
transfer thereof by the Underwriter may be disregarded for federal tax purposes
and (ii) any and all losses, claims, damages and liabilities, including
attorney's fees and expenses, arising out of any failure of the Underwriter to
make payment or reimbursement in connection with any such assertion as required
in (i) above. In addition, the Underwriter acknowledges that on the Closing Date
immediately after the transactions described herein it will be the owner of the
Class R Certificates (other than a de minimis portion of the Class R
Certificates to be held by Residential Funding) for federal tax purposes, and
the Underwriter covenants that it will not assert in any proceeding that the
transfer of the Class R Certificates from the Company to the Underwriter should
be disregarded for any purpose.
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 you, and you agree to purchase from the Company, the Certificates (other
than a de minimis portion of the Class R Certificates, which shall be
transferred by the Company to Residential Funding) at a price equal to [_____]%
of the aggregate certificate principal balance of the Certificates as of the
Closing Date (as defined herein). There will be added to the purchase price of
the Certificates an amount equal to interest accrued thereon from the Cut-off
Date up to but not including the Closing Date. The purchase price for the
Certificates was agreed to by the Company in reliance upon the transfer from the
Company to the Underwriter of the tax liabilities associated with the ownership
of the Class R Certificates.
3. Delivery and Payment. Delivery of and payment for the Certificates shall
be made at the office of [Issuer's Counsel] at 10:00 a.m., New York City time,
on [_________], 20[__] or such later date as you shall designate, which date and
time may be postponed by agreement between you and the Company (such date and
time of delivery and payment for the Certificates being herein called the
"Closing Date"). Delivery of the Series 20[__]-[____], Class A-1, Class A-2 and
Class A-3 Certificates shall be made to you through the Depository Trust Company
("DTC") (such Certificates, the "DTC Registered Certificates"), and delivery of
the Class R Certificates (the "Definitive Certificates") shall be made in
registered, certificated form, in each case against payment by you of the
purchase price thereof to or upon the order of the Company by wire transfer in
immediately available funds. The Definitive Certificates shall be registered in
such names and in such denominations as you may request not less than two
business days in advance of the Closing Date. The Company agrees to have the
Definitive Certificates available for inspection, checking and packaging by you
in New York, New York not later than 9:00 a.m. on the Closing Date.
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4. Offering by Underwriter.
4.1 It is understood that you propose to offer the Certificates for
sale to the public as set forth in the Prospectus and you agree that all such
offers and sales by you shall be made in compliance with all applicable laws and
regulations. Prior to the date of the first Contract of Sale made based on the
Approved Offering Materials, you have not pledged, sold, disposed of or
otherwise transferred any Certificate, Mortgage Loans or any interest in any
Certificate.
4.2 It is understood that you will solicit offers to purchase the
Certificates as follows:
(a) Prior to the time you have received the Approved Offering
Materials 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 your conveyance of
Approved Offering Materials to the investor.
(b) any Written Communication relating to the Certificates made 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 the following statements (or a substantially similar
statements approved by the Company):
The information in this free writing prospectus, if conveyed prior to
the time of your contractual commitment to purchase any of the
Certificates, supersedes any information contained in any prior
similar materials relating to the Certificates. The information in
this free writing prospectus is preliminary, and is subject to
completion or change. 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.
The Certificates referred to in these materials are being sold when,
as and if issued. The issuer is not obligated to issue such
Certificates or any similar security and the underwriter's obligation
to deliver such Certificates is subject to the terms and conditions of
the underwriting agreement with the issuer and the availability of
such Certificates when, as and if issued by the issuer. You are
advised that the terms of the Certificates, and the characteristics of
the mortgage loan pool backing them, may change (due, among other
things, to the possibility that mortgage loans that comprise the pool
may become delinquent or defaulted or may be removed or replaced and
that similar or different mortgage loans may be
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added to the pool, and that one or more classes of Certificates may be
split, combined or eliminated), at any time prior to issuance or
availability of a final prospectus. You are advised that Certificates
may not be issued that have the characteristics described in these
materials. The underwriter's 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 the
issuer does not deliver such Certificates, the underwriter 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 Approved Offering Materials have been conveyed to
the investor with respect to the Certificates which are the subject of such
Contract of Sale.
4.4 It is understood that you may prepare and provide to prospective
investors certain Free Writing Prospectuses, subject to the following
conditions:
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, the Underwriter shall not convey
or deliver any Written Communication to any person in connection with the
initial offering of the Certificates, unless such Written Communication (i)
is made in reliance on Rule 134 under the Act, (ii) constitutes a
prospectus satisfying the requirements of Rule 430B under the Act or (iii)
constitutes a Free Writing Prospectus (as defined in Section 1.1(c) above)
consisting solely of (x) information of a type included within the
definition of ABS Informational and Computational Materials (as defined
below), (y) Permitted Additional Materials or (z) information accurately
extracted from any Issuer Free Writing Prospectus and included in any
Underwriter Prepared Issuer FWP or Underwriter Free Writing Prospectus.
(b) The 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.
(c) It is understood and agreed that all information provided by
the Underwriter to or through Bloomberg or Intex or similar entities for
use by prospective investors, or imbedded in any CDI file provided to
prospective investors, to the extent constituting a Free Writing
Prospectus, shall be deemed an Underwriter Free Writing Prospectus.
(d) All Free Writing Prospectuses provided to prospective
investors, whether or not filed with the Commission, shall bear a legend
including the following statement (or a substantially similar statement
approved by the Company):
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"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SECURITIES AND EXCHANGE COMMISSION (THE SEC)
FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU
INVEST, YOU SHOULD READ THE PROSPECTUS IN THAT REGISTRATION
STATEMENT AND OTHER DOCUMENTS THE DEPOSITOR HAS FILED WITH THE
SEC FOR MORE COMPLETE INFORMATION ABOUT THE DEPOSITOR AND THE
OFFERING. YOU MAY GET THESE DOCUMENTS AT NO CHARGE BY VISITING
XXXXX ON THE SEC WEB SITE AT XXX.XXX.XXX. ALTERNATIVELY, THE
DEPOSITOR, 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 1-8[XX-XXX-XXXX] OR VIA EMAIL
AT _______________.
Each of the Underwriter and the Company shall have the right to request
additional specific legends or notations to appear on any Free Writing
Prospectus and shall have 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 other (which shall not be unreasonably
withheld).
(e) The Underwriter shall deliver to the Company and its counsel
(in such format as reasonably required by the Company), no later than the
business day prior to the date of the required filing under Section 5.10,
an Underwriter Prepared Issuer FWP. To facilitate filing to the extent
required by Section 5.10 or 5.11, as applicable, all Underwriter Derived
Information shall be set forth in a document separate from any Underwriter
Prepared Issuer FWP including Issuer Information.
(f) The Underwriter shall provide the Company with a letter from
[__________], certified public accountants, prior to the Closing Date,
satisfactory in form and substance to the Company, Residential Funding and
their respective counsels and the Underwriter, to the effect that such
accountants have performed certain specified procedures, all of which have
been agreed to by the Company and the Underwriter, as a result of which
they determined that certain information of an accounting, financial or
statistical nature that is included in any Underwriter Prepared Issuer FWP,
other than any Pool Information therein and any information accurately
extracted from any Issuer Free Writing Prospectus and included in such
Underwriter Prepared Issuer FWP, is accurate except as to such matters that
are not deemed by the Company and the Underwriter to be material. The
foregoing letter shall be at the expense of the Underwriter.
(g) None of the information in any Free Writing Prospectus may
conflict with the information then contained in the Registration Statement
or any prospectus or prospectus supplement that is a part thereof. The
Certificates described in any Underwriter Free Writing Prospectus or any
Underwriter Prepared Issuer FWP will
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be of a type set forth in one of the categories listed beneath the heading
"Description of Certificates" in the term sheet supplement included in the
Approved Offering Materials and the description of the characteristics of
the Certificates contained in such Underwriter Free Writing Prospectus or
any Underwriter Prepared Issuer FWP shall not be inconsistent with the
description of the Certificates beneath such heading in the term sheet
supplement.
(h) The Company shall not be obligated to file any Issuer Free
Writing Prospectuses that have been determined to contain any material
error or omission unless such Issuer Free Writing Prospectus has been
provided to a prospective investor, in which case, the Underwriter shall
cooperate with the Company to prepare a corrective Issuer Free Writing
Prospectus that the Underwriter will provide to any such prospective
investor and the Company shall file to the extent required herein. In the
event that the Underwriter becomes aware that, as of the date on which an
investor entered into a Contract of Sale, any Free Writing Prospectus
prepared by or on behalf of the 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"), the
Underwriter shall notify the Company thereof as soon as practical but in
any event within one business day after discovery.
(i) If the Underwriter does not provide any Free Writing
Prospectuses to the Company pursuant to subsection (e) 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 would constitute an Underwriter Prepared Issuer FWP.
(j) In the event of any delay in the delivery by the Underwriter
to the Company of any Underwriter Prepared Issuer FWP required to be
delivered in accordance with subsection (e) above, or in the delivery of
the accountant's comfort letter in respect thereof pursuant to subsection
(f) above, 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 5.10 to
file such Underwriter Prepared Issuer FWP by the time specified therein.
(k) 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 1933 Act Regulations with respect to
the generation and use of Free Writing Prospectuses in connection with the
offering of the Certificates. In addition, each Underwriter shall, for a
period of at least three years after the date hereof, maintain written
and/or electronic records of the following:
(i) any Free Writing Prospectus used by the Underwriter to
solicit offers to purchase Certificates to the extent not filed with
the Commission;
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(ii) regarding each Free Writing Prospectus delivered by the
Underwriter to an investor, the date of such delivery and identity of
such investor; and
(iii) regarding each Contract of Sale entered into by such
Underwriter, the date, identity of the investor and the terms of such
Contract of Sale, as set forth in the related confirmation of trade.
(l) The Underwriter covenants with the Company that after the
final Prospectus is available the 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.
(m) The Underwriter shall not use any Free Writing Prospectus in
connection with the solicitation of offers to purchase Certificates from
any prospective investor in a class of Certificates with denominations of
less than $25,000 or otherwise designated as a "retail" class of
Certificates, and the Underwriter shall not authorize any such use of any
Free Writing Prospectus by any dealer that purchases any such Certificates
from the Underwriter.
4.5 You further agree that on or prior to the sixth day after the
Closing Date, you shall provide the Company with a certificate, substantially in
the form of Exhibit G attached hereto, setting forth (i) in the case of each
class of Certificates, (a) if less than 10% of the aggregate certificate
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 G
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 certificate 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 certificate principal balance of such class of
Certificates sold, or (c) the first single price at which at least 10% of the
aggregate certificate 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 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.
4.6 The Underwriter agrees 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 the Underwriter; (ii) if a
paper copy of the Prospectus is requested by a person who receives a
confirmation, Underwriter shall deliver a printed or paper copy of such
Prospectus; and (iii) if an electronic copy of the Prospectus is delivered by
the Underwriter for any purpose, such copy shall be the same electronic file
containing the Prospectus in the identical form transmitted electronically to
the Underwriter by or on behalf of the Company specifically for use by the
Underwriter pursuant to this Section 4.6; for example, if the Prospectus is
delivered to the Underwriter by or on behalf of the Company in a single
electronic file in pdf format, then the Underwriter will deliver the
12
electronic copy of the Prospectus in the same single electronic file in pdf
format. The Underwriter further agrees that (i) if it delivers to an investor
the Prospectus in pdf format, upon the Underwriter's receipt of a request from
the investor within the period for which delivery of the Prospectus is required,
the Underwriter will promptly deliver or cause to be delivered to the investor,
without charge, a paper copy of the Prospectus and (ii) it will provide to the
Company any Underwriter Prepared Issuer FWP, 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 Underwriter Prepared
Issuer FWP, or portions thereof, in either Microsoft Word(R) or Microsoft
Excel(R) format and not in a pdf, except to the extent that the Company, in its
sole discretion, waives such requirements.
5. Agreements. The Company and you agree as follows:
5.1 Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Certificates, the Company will furnish you with a
copy of each such proposed amendment or supplement.
5.2 The Company will cause the Prospectus Supplement 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 you, 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 If the Company or the Underwriter determines or becomes aware that
any Written Communication (including without limitation any Free Writing
Prospectus) or oral statement (when considered in conjunction with all
information conveyed at the time of Contract of Sale) 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, either the
Company or the Underwriter may prepare corrective information with notice to the
other party, and the Underwriter shall deliver such information in a manner
reasonably acceptable to both parties, to any person with whom a Contract of
Sale was entered into, and such information shall provide any such person with
the following:
(a) Adequate disclosure of the contractual arrangement;
(b) Adequate disclosure of the person's rights under the existing
Contract of Sale at the time termination is sought;
13
(c) 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
(d) 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.
Any costs incurred to the investor in connection with any such termination or
reformation shall be subject to Sections 7.1 and 7.2, as applicable.
5.5 The Company will furnish to you, 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 you may reasonably request; provided,
however, that if the Prospectus is not delivered with the confirmation in
reliance on Rule 172, you will provide the notice specified in Section 4.6 in
every confirmation and will deliver a paper copy of the prospectus to those
investors that request a paper copy thereof.
5.6 The Company agrees, so long as the Certificates shall be
outstanding, or until such time as you shall cease to maintain a secondary
market in the Certificates, whichever first occurs, to deliver to you the annual
statement as to compliance delivered to the Trustee pursuant to Section 3.18 of
the Pooling and Servicing 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.
5.7 The Company will endeavor to arrange for the qualification of the
Certificates for sale under the laws of such jurisdictions as you 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.
5.8 If the transactions contemplated by this Agreement are
consummated, the Company or Residential Funding will pay or cause to be paid all
expenses incident to the performance of the obligations of the Company and
Residential Funding under this Agreement, and will reimburse you for any
reasonable expenses (including reasonable fees and disbursements of counsel)
reasonably incurred by you in connection with qualification of the Certificates
for sale and determination of their eligibility for investment under the laws of
such jurisdictions as you have reasonably requested pursuant to Section 5.7
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, you shall be
responsible for paying all costs and expenses incurred by you, including the
fees and disbursements of your counsel, in connection with the purchase and sale
of the Certificates.
5.9 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
14
sale of the Certificates is in effect, the Company will advise you of the
issuance of such stop order.
5.10 The Company shall file any Issuer Free Writing Prospectus, and
any Underwriter Prepared Issuer FWP provided to it by the Underwriter under
Section 4.4, not later than the date of first use thereof, except that:
(a) any Issuer Free Writing Prospectus or Underwriter Prepared
Issuer FWP or portion thereof otherwise required to be filed that contains
only (1) a description of the final terms of the Certificates 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 and the date of first
use, and (2) 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
(b) if the Issuer Free Writing Prospectus or Underwriter Prepared
Issuer FWP includes only information of a type included in the definition
of ABS Informational and Computational Materials, the Company shall file
the same 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 the filing of any Underwriter Prepared Issuer
FWP by the Company, the Underwriter must comply with its obligations pursuant to
Section 4.4 and that the Company shall not be required to file any Free Writing
Prospectus to the extent such Free Writing Prospectus includes information in a
Free Writing Prospectus or Prospectus previously filed with the Commission or
that does not contain substantive changes from or additions to a Free Writing
Prospectus previously filed with the Commission.
5.11 The Underwriter shall file any Underwriter Free Writing
Prospectus that has been distributed by the Underwriter in a manner reasonably
designed to lead to its broad, unrestricted dissemination 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 or
otherwise as required under Rule 433 of the Act; provided, however, that the
Underwriter shall not be required to file any Underwriter Free Writing
Prospectus to the extent such Underwriter Free Writing Prospectus includes
information in a Free Writing Prospectus or Prospectus previously filed with the
Commission or that does not contain substantive changes from or additions to a
Free Writing Prospectus previously filed with the Commission.
5.12 The Company acknowledges and agrees that the Underwriter is
acting solely in the capacity of an arm's length contractual counterparty to the
Company with respect to the offering of securities contemplated hereby
(including in connection with determining the terms of the offering) and not as
a financial advisor or a fiduciary to, or an agent of, the Company or any other
person. Additionally, the Underwriter is not advising the company or any other
person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such
matters and shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and the Underwriter shall
have no responsibility or liability to the
15
Company with respect thereto. Any review by the Underwriter of the Company, the
transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriter and shall not be on
behalf of the Company.
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 or Residential Funding.
6.3 The Company shall have delivered to you 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 Approved Offering Materials, the Prospectus, the Pooling and
Servicing Agreement and various other closing documents, and that, to the best
of his or her knowledge after reasonable investigation:
(a) the representations and warranties of the Company in this
Agreement and in the Pooling and Servicing Agreement are true and correct
in all material respects; and
(b) the Company has, in all material respects, complied 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 Residential Funding shall have delivered to you a certificate,
dated the Closing Date, of the President, a Managing Director, a Director or an
Associate of Residential Funding to the effect that the signer of such
certificate has examined the Pooling and Servicing Agreement and this Agreement
and that, to the best of his or her knowledge after reasonable investigation,
the representations and warranties of Residential Funding contained in the
Pooling and Servicing Agreement and in this Agreement are true and correct in
all material respects.
6.5 You shall have received the opinions of [___________], special
counsel for the Company and Residential Funding, dated the Closing Date and
substantially to the effect set forth in Exhibits X-0, X-0 xxx X-0, and the
opinion of [________], associate counsel for the Company and Residential
Funding, dated the Closing Date and substantially to the effect set forth in
Exhibit B.
6.6 You shall have received a negative assurance letter regarding the
Prospectus from [___________], special counsel for the Company and Residential
Funding, in form satisfactory to you.
6.7 The Underwriter shall have received from [___________], certified
public accountants, (a) a letter dated the date hereof and satisfactory in form
and substance to the
16
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", "Description of the Certificates" and "Certain Yield and
Prepayment Considerations" agrees with the records of the Company and
Residential Funding excluding any questions of legal interpretation and (b) the
letter prepared pursuant to Section 4.4(e).
6.8 The Class A Certificates shall have been rated "[____]" by [Fitch
Ratings, ("Fitch")] and [____] by [Standard & Poor's ("S&P")].
6.9 You shall have received the opinion of [_________], counsel to the
Trustee, dated the Closing Date, substantially to the effect set forth in
Exhibit C.
6.10 You shall have received the opinion of [_________], special
Minnesota tax counsel for the Company, dated the Closing Date, substantially to
the effect set forth in Exhibit D.
6.11 You shall have received from [_________], associate counsel to
the Company, a reliance letter with respect to any opinions delivered to the
rating agencies, or you shall have been listed as an addressee on any such
opinions.
The Company will furnish you with conformed copies of the above opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification and Contribution.
7.1 The Company and Residential Funding, jointly and severally, agree
to indemnify and hold harmless you and each person, if any, who controls you
within the meaning of either Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and
against any and all losses, claims, damages and liabilities (i) 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 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 were made, not misleading, or (ii)
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Issuer 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 (except any omission relating to any Senior Structure Information),
or (iii) caused by any untrue statement of a material fact or alleged untrue
statement of a material fact contained in (x) any Underwriter Prepared Issuer
FWP or any Underwriter 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, that in either case was caused by any error or omission in any Pool
Information or (y) or any information accurately extracted from any Issuer Free
Writing Prospectus and included in any Underwriter Prepared Issuer FWP or
Underwriter Free Writing Prospectus; except insofar as such losses, claims,
damages, or
17
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon any information with respect to which
the Underwriter has agreed to indemnify the Company pursuant to clause (i) of
Section 7.2; provided, however, that none of the Company, Residential Funding or
you 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 You agree to indemnify and hold harmless the Company, Residential
Funding, their respective directors or officers and any person controlling the
Company or Residential Funding within the meaning of either Section 15 of the
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (i) caused by any untrue statement or alleged
untrue statement of material fact contained in the Underwriter Information, or
any omission or alleged omission to state therein any material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (ii) caused by any
untrue statement or alleged untrue statement of material fact contained in any
Underwriter Free Writing Prospectus (except for any information accurately
extracted from any Issuer Free Writing Prospectus and included in such
Underwriter 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, (iii) caused by
any untrue statement or alleged untrue statement of material fact contained in
any Underwriter Prepared Issuer FWP (except for any information accurately
extracted from any Issuer Free Writing Prospectus and included in such
Underwriter Prepared Issuer FWP), 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 (iv) resulting
from your failure to comply with Section 4.4(e) or Section 4.3 or failure to
file any Underwriter Free Writing Prospectus required to be filed in accordance
with Section 5.11; provided, however, that the indemnification set forth in
clauses (ii) and (iii) of this Section 7.2 shall not apply to the extent of any
error or omission in any Underwriter Prepared Issuer FWP or any Underwriter Free
Writing Prospectus that was caused by any error or omission in any Pool
Information; provided, further, that none of the Company, Residential Funding or
you 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. In addition, you agree to indemnify and hold harmless the
Company, Residential Funding, their respective directors or officers and any
person controlling the Company or Residential Funding 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 4.5 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 Section 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
18
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 you, in the case of parties indemnified pursuant to Section 7.1 and
by the Company or Residential Funding, 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 reasonably 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 Section 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 Company and Residential Funding on the one hand and the
Underwriter on the other from the offering of the Certificates but also the
relative fault of the Company or Residential Funding on the one hand and of the
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company and
Residential Funding on the one hand and of the Underwriter 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 Company or by the
Underwriter, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
7.5 The Company, Residential Funding 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
19
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 and Residential
Funding 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 or Residential Funding and their
respective directors or officers or any person controlling the Company or
Residential Funding and (iii) acceptance of and payment for any of the
Certificates.
8. Termination. This Agreement shall be subject to termination by notice
given to the Company and Residential Funding, if the sale of the Certificates
provided for herein is not consummated because of any failure or refusal on the
part of the Company or Residential Funding to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company or Residential Funding shall be unable to perform their respective
obligations under this Agreement. If you terminate this Agreement in accordance
with this Section 8, the Company or Residential Funding will reimburse you for
all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by the
Underwriter in connection with the proposed purchase and sale of the
Certificates.
9. Certain Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, Residential Funding or the officers of any of the Company, Residential
Funding, and you 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 you or on your behalf or made by or on behalf of the
Company or Residential Funding or any of their respective officers, directors or
controlling persons, and will survive delivery of and payment for the
Certificates.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriter will be mailed, delivered or
telegraphed and confirmed to you at [Underwriter's Name], [Underwriter's
Address], or if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at Residential Funding Mortgage Securities II, Inc., 0000
Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
President; or, if sent to Residential Funding will be mailed, delivered or
telegraphed and confirmed to it at Residential Funding Corporation, 0000
Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
President.
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
20
persons referred to in Section 7 hereof, and their successors and assigns, and
no other person will have any right or obligation hereunder.
12. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
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.
21
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the Company,
Residential Funding and you.
Very truly yours,
RESIDENTIAL FUNDING MORTGAGE
SECURITIES II, INC.
By:
---------------------------
Name:
Title:
RESIDENTIAL FUNDING CORPORATION
By:
---------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
[UNDERWRITER]
By:
-----------------------------------
Name:
Title:
EXHIBIT A-1
Counsel to Company Opinion
Main Closing Opinion (Underwriting Agreement)
X-0
XXXXXXX X-0
Counsel to Company
Negative Assurance Letter (Underwriting Agreement)
X-0
XXXXXXX X-0
Counsel to Company Opinion
Tax Disclosure Letter (Underwriting Agreement)
A-3
EXHIBIT B
In-House Opinion
Main Closing Opinion (Underwriting Agreement)
B-1
EXHIBIT C
Opinion of Counsel to Trustee
C-1
EXHIBIT D
Opinion of Special Counsel to the Company
D-1
EXHIBIT E
EXCLUDED INFORMATION
E-1
EXHIBIT F
UNDERWRITER INFORMATION
F-1
EXHIBIT G
UNDERWRITER'S CERTIFICATE
G-1
