EXHIBIT 1.2
FORM OF UNDERWRITING AGREEMENT (Non-Iterative Certificates)
RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
Home Equity Loan Pass-Through Certificates, Series 20[__]-[___]
Initial Principal Amount Pass-Through Rate Class
------------------------ ----------------- -----
$[_____] Adjustable Rate Class A-1 Certificates
$[_____] Adjustable Rate Class A-2 Certificates
$[_____] Adjustable Rate Class A-3 Certificates
$[_____] Adjustable Rate Class A-4 Certificates
$[_____] Adjustable Rate Class M-1S Certificates
$[_____] Adjustable Rate Class M-2S Certificates
$[_____] Adjustable Rate Class M-3S Certificates
$[_____] Adjustable Rate Class M-4 Certificates
$[_____] Adjustable Rate Class M-5 Certificates
$[_____] Adjustable Rate Class M-6 Certificates
$[_____] Adjustable Rate Class M-7 Certificates
$[_____] Adjustable Rate Class M-8 Certificates
$[_____] Adjustable Rate Class M-9 Certificates
UNDERWRITING AGREEMENT
[_____] [__], 20[__]
[Name of Underwriter]
[Address of Underwriter]
Ladies and Gentlemen:
Residential Funding Mortgage Securities II, Inc., a Delaware corporation
(the "Company"), proposes to sell to you (also referred to herein as the
"Underwriter"), the Home Equity Loan Pass-Through Certificates, Series
20[__]-[___], Class A-1, Class A-2, Class A-3 and Class A-4 (the "Class A
Certificates"), Class M-1S, Class M-2S, Class M-3S, Class M-4, Class M-5, Class
M-6, Class M-7, Class M-8 and Class M-9 Certificates (the "Class M
Certificates," and together with the Class A Certificates, the "Certificates"),
having the aggregate principal amounts and Pass-Through Rates set forth above.
The Certificates, together with the Class B, Class SB, Class R-I and Class R-II
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 first and junior lien mortgage loans (the "Mortgage Loans")
as described in the Prospectus Supplement (as hereinafter defined) to be sold by
the Company.
The Certificates will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of [____] 1, 20[__]
(the "Cut-off Date"), among the Company, as seller, Residential Funding Company,
LLC, a Delaware limited liability company ("Residential Funding"), as master
servicer, and [_______], as trustee and supplemental interest trust trustee (the
"Trustee" and "Supplemental Interest Trust Trustee," respectively). 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 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 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 dated [____] [_], 20[__] (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." Any preliminary
form of the Prospectus Supplement to be filed pursuant to Rule 424(b) is
referred to as a "Preliminary Prospectus Supplement" and, together with
the Base Prospectus, and as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto, a "Preliminary
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 the Approved Offering Materials (as
defined herein) as of the date of the Approved Offering Materials did not
and as of the Closing Date 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
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in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; 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, the Approved Offering Materials 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 the Preliminary Prospectus Supplement or any Issuer Free Writing
Prospectus and included in any Underwriter Prepared Issuer FWP, or (ii)
any information contained in or omitted from the portions of the Approved
Offering Materials or Prospectus identified by underlining or other
highlighting as shown in Exhibit F (the "Underwriter Information"). The
Effective Date shall mean the 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, any Preliminary Prospectus or the Prospectus, and the
Underwriter confirms that the Underwriter Information is correct with
respect to the Certificates it underwrites.
(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 the Preliminary
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 (x)
each of the Registration Statement, the Approved Offering Materials
and the Prospectus, the information identified by underlining or
other highlighting as shown on Exhibit E, and (y) the Underwriter
Prepared Issuer FWP and the Underwriter Free Writing Prospectus, all
information contained therein which is restated in, or is corrected
and superseded by, the Approved Offering Materials.
(v) "Free Writing Prospectus" shall have the meaning given
such term in Rules 405 and 433 of the 1933 Act Regulations.
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(vi) "Issuer Free Writing Prospectus" shall mean any Free
Writing Prospectus prepared by or on behalf of the Company and
identified by the 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 applicable 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
each applicable Underwriter at the time most recent to the date of
such Free Writing Prospectus.
(x) "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 any Underwriter, including traditional computational and
analytical materials prepared by the Underwriter.
(xi) "Underwriter Free Writing Prospectus" shall mean all Free
Writing Prospectuses prepared by or on behalf of any Underwriter
other than any Underwriter Prepared Issuer FWP, including any
Permitted Additional Materials.
(xii) "Underwriter Prepared Issuer FWP" shall mean any Free
Writing Prospectus prepared by or on behalf of any Underwriter that
contains any Issuer Information, including any Free Writing
Prospectus or portion
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thereof prepared by or on behalf of any Underwriter that contains
only a description of the final terms of the Certificates or of the
offering of the Certificates.
(xiii) "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
the Underwriter 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) 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.
(b) 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.
(c) 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
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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.
(d) 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.
(e) As of the date hereof and as of the Closing Date, the
Underwriter has complied with all of its obligations hereunder and all
Underwriter Prepared Issuer FWP and Underwriter Information prepared by
the Underwriter is accurate in all material respects (taking into account
the assumptions explicitly set forth in the Underwriter Prepared Issuer
FWP, except for any Excluded Information and 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 the Preliminary
Prospectus Supplement or any Issuer Free Writing Prospectus and included
in any Underwriter Prepared Issuer FWP). The Underwriter Prepared Issuer
FWP delivered to the Company, if any, constitute a complete set of all
Underwriter Prepared Issuer FWP furnished by the Underwriter to any
investor by the Underwriter in connection with the offering of any
Certificates.
(f) 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.
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, all of the Certificates at a price equal to 100% 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.
3. Delivery and Payment. Delivery of and payment for the Certificates
shall be made at the office of [Company'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 X-0,
Xxxxx X-0, Class A-4, Class M-1S, Class M-2S, Class M-3S, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8 and Class M-9 Certificates shall be made to you
through the Depository Trust Company ("DTC") (such Certificates, the "DTC
Registered Certificates") against payment by you of the purchase price thereof
to or upon the order of the Company by wire transfer in immediately available
funds.
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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. Prior to the date
of the first Contract of Sale made based on the Approved Offering Materials, the
Underwriter has not pledged, sold, disposed of or otherwise transferred any
Certificate, Mortgage Loans or any interest in any Certificate.
4.2 It is understood that the Underwriter will solicit offers to
purchase the Certificates as follows:
(a) Prior to the time it has received the Approved Offering
Materials the Underwriter may, in compliance with the provisions of this
Agreement, solicit offers to purchase Certificates; provided, that it 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
its conveyance of Approved Offering Materials to the investor.
(b) any Written Communication relating to the Certificates made by
the Underwriter in compliance with the terms of this Agreement prior to the time
the Underwriter has entered into a Contract of Sale for Certificates with the
recipient 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 issuing entity 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 issuing entity and
the availability of such Certificates when, as and if issued by the
issuing entity. 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
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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 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 issuing entity does not
deliver such Certificates, the underwriter will notify you, and
neither the issuing entity 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 issuing entity
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 the Underwriter 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 the Underwriter 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 the Preliminary Prospectus Supplement or any Issuer Free
Writing Prospectus and included in any Underwriter Prepared Issuer FWP or
any 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, or in any email or other electronic message
provided to prospective investors, to the extent constituting a Free
Writing Prospectus, shall be deemed for purposes of this Agreement to be
an
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Underwriter Free Writing Prospectus prepared by the Underwriter and shall
not be subject to the required consent of the Company set forth in the
third sentence in Section 4.4(e). In connection therewith, the Underwriter
agrees that it shall not provide any information constituting Issuer
Information through the foregoing media unless (i) such information or
substantially similar information is contained either in an Issuer Free
Writing Prospectus or in an Underwriter Prepared Issuer FWP in compliance
with Section 4.4(e) or (ii) to the extent such information consists of the
terms of the Certificates, the final version of the terms of the
Certificates or substantially similar information is contained either in
an Issuer Free Writing Prospectus or in an Underwriter Prepared Issuer FWP
in compliance with Section 4.4(e) prepared by the Underwriter.
(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):
"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 _______________."
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 Underwriter or the Company, as applicable (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), prior to the proposed
date of first use thereof, (unless such timing requirement is waived by
the Company), any Underwriter Prepared Issuer FWP (as defined above). 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
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Issuer Information. Consent to use of any Underwriter Prepared Issuer FWP
must be given by the Company in written or electronic format before the
Underwriter provides the Underwriter Prepared Issuer FWP to investors
pursuant to the terms of this Agreement. Notwithstanding the foregoing,
the Underwriter shall not be required to deliver or obtain consent to use
an Underwriter Prepared Issuer FWP to the extent that it does not contain
substantive changes from or additions to any Underwriter Prepared Issuer
FWP previously approved by the Company. In the event that the Underwriter
uses any Underwriter Prepared Issuer FWP without complying with the
foregoing requirements, that Underwriter Prepared Issuer FWP shall be
deemed to be an Underwriter Free Writing Prospectus for purposes of
Section 7.1 and 7.2.
(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
prepared by the Underwriter, other than any Pool Information therein and
any information accurately extracted from the Preliminary Prospectus
Supplement or any Issuer Free Writing Prospectus and included in the
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 applicable 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.
(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.
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(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 the 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, the 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;
(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 the
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.
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4.5 The Underwriter further agrees that on or prior to the sixth day
after the Closing Date, it 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 by the Underwriter 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, the 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
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 the Underwriter Prepared Issuer
FWP, or portions thereof, in either Microsoft Word(R) or Microsoft Excel(R)
format and not in pdf format, except to the extent that the Company, in its sole
discretion, waives such requirements.
5. Agreements. The Company and the Underwriter 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 Preliminary Prospectus and 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.
12
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 Approved
Offering Materials) or oral statement (when considered in conjunction with all
information conveyed at the time of Contract of Sale) made or prepared by the
Company or the Underwriter 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 based
on such written communication or oral statement, 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;
(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 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; provided, however, that if the Prospectus is not delivered
with the confirmation in reliance on Rule 172 by the Underwriter, the
Underwriter 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.
13
5.6 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 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 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
14
(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 prepared by the Underwriter to the extent such Free Writing
Prospectus includes information in a Free Writing Prospectus, Preliminary
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 the Underwriter Free Writing Prospectus includes
information in a Free Writing Prospectus, Preliminary 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 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 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
15
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 [____] 1, 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 Preliminary Prospectus and Prospectus from [_____], in form satisfactory to
you.
6.7 You shall have received from [_____], certified public
accountants, (a) a letter dated the date hereof and satisfactory in form and
substance to you and your counsel, to the effect that they have performed
certain specified procedures, all of which have been agreed to by you, 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).
16
6.8 The Class A Certificates shall have been rated ["____"] by
[Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P")] and
["____"] by [Xxxxx'x Investors Service, Inc. ("Moody's")]. The [Class M-1S
Certificates shall have been rated ["____"] by Moody's and ["____"] by S&P. The
Class M-2S Certificates shall have been rated ["____"] by Moody's and ["____"]
by S&P". The Class M-3S Certificates shall have been rated ["____"] by Moody's
and ["____"] by S&P. The Class M-4 Certificates shall have been rated ["____"]
by Moody's and ["____"] by S&P. The Class M-5 Certificates shall have been rated
["____"] by Moody's and ["____"] by S&P. The Class M-6 Certificates shall have
been rated ["____"] by Moody's and ["____"] by S&P. The Class M-7 Certificates
shall have been rated ["____"] by Moody's and ["____"] by S&P. The Class M-8
Certificates shall have been rated ["____"] by Moody's and ["____"] by S&P. The
Class M-9 Certificates shall have been rated ["____"] by Moody's and ["____"] by
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 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, 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 Approved Offering Materials or 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, 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
17
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) any information accurately extracted from the
Preliminary Prospectus Supplement or 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 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 the Underwriter will
be liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein relating to the
Excluded Information.
7.2 The Underwriter agrees to indemnify and hold harmless the
Company, 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 as it relates to the Underwriter, 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 prepared by the Underwriter, 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 prepared by
the Underwriter (except for any information accurately extracted from the
Preliminary Prospectus Supplement or any Issuer Free Writing Prospectus and
included in the 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, (iv) caused by any Underwriter Prepared Issuer FWP prepared by the
Underwriter for which the conditions set forth in Section 4.4(e) above are not
satisfied with respect to the prior consent by the Company, and (v) resulting
from the Underwriter's failure to comply with 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 prepared by the Underwriter that was caused by any error or omission
in any Pool Information unless the Underwriter has failed to comply with Section
4.3 and such error was corrected in the Approved Offering Materials; 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, the Underwriter agrees 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 the
18
original issue discount reported by Residential Funding or the determination
that a Certificate is or will or will not be issued with original issue
discount, which determination resulted from incorrect information provided by
the Underwriter in the certificate 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 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 related
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
related Underwriter on the other in connection with the statements or omissions
which
19
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 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, the Underwriter or the officers of any of the
Company, Residential Funding, and the
20
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 its 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 the Underwriter c/o the Representative at [Name of
Underwriter], [Address of Underwriter], 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 Company, LLC, 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 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, without regard to the
conflict of law principles thereof, other than Sections 5-1401 and 5-1402 of the
New York General Obligations Law.
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.
[SIGNATURE PAGES FOLLOW]
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 COMPANY, LLC
By:
-------------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
[UNDERWRITER]
By:
---------------------------------
Name:
Title:
SCHEDULE I
Underwriter Principal Amount of Class A-1 Certificates
[_____]............................ $[____]
Underwriter Principal Amount of Class A-2 Certificates
[_____]............................ $[____]
Underwriter Principal Amount of Class A-3 Certificates
[_____]............................ $[____]
Underwriter Principal Amount of Class A-4 Certificates
[_____]............................ $[____]
Underwriter rincipal Amount of Class M-1S Certificates
[_____]............................ $[____]
Underwriter rincipal Amount of Class M-2S Certificates
[_____]............................ $[____]
Underwriter rincipal Amount of Class M-3S Certificates
[_____]............................ $[____]
Underwriter Principal Amount of Class M-4 Certificates
[_____]............................ $[____]
Underwriter Principal Amount of Class M-5 Certificates
[_____]............................ $[____]
Underwriter Principal Amount of Class M-6 Certificates
[_____]............................ $[____]
Underwriter Principal Amount of Class M-7 Certificates
[_____]............................ $[____]
Underwriter Principal Amount of Class M-8 Certificates
[_____]............................ $[____]
Underwriter Principal Amount of Class M-9 Certificates
[_____]............................ $[____]
Schedule I-1
EXHIBIT A-1
Counsel to Company Opinion
Main Closing Opinion (Underwriting Agreement)
A-1
EXHIBIT A-2
Counsel to Company Opinion
Tax Disclosure Letter (Underwriting Agreement)
A-2
EXHIBIT A-3
Counsel to Company Opinion
Negative Assurance 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
(see attached)
E-1
EXHIBIT F
UNDERWRITER INFORMATION
(see attached)
F-1
EXHIBIT G
UNDERWRITER'S CERTIFICATE
G-1
