Exhibit 1.2
FORM OF UNDERWRITING AGREEMENT (NON-ITERATIVE)
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, 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") Mortgage 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 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 series supplement (the
"Series Supplement"), dated as of [_____] 1, 20[__] (the "Cut-off Date"), to the
standard terms of a pooling and servicing agreement, dated as of [_____] 1,
20[__] (the "Standard Terms", and together with the Series Supplement, 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
Mortgage Pass-Through Certificates (issuable in series), including the
Certificates, which registration statement has become effective, and a copy of
which, as amended to the date hereof, has heretofore been delivered to 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." 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 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
2
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.
(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) each Underwriter Prepared Issuer FWP and each
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.
(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.
3
(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) "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 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 the 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 the Underwriter that contains any
Issuer Information, including 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.
(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.
4
(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.
(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.
5
(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 Underwriter Prepared
Issuer FWP and Underwriter Information are accurate in all material respects
(taking into account the assumptions explicitly set forth in such 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 to any investor by the Underwriter in connection with the
offering of any Certificates.
(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.
6
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.
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 with the
recipient shall prominently set forth the following statements (or a
substantially similar statements approved by the Company):
7
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
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
8
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 Underwriter Free Writing Prospectus 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).
(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
9
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), 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 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, 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 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.
(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
10
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;
(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
11
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 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.
12
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 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.
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) 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;
(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
13
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 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
14
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, 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 such
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 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 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 December 1, 2005 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 [___________], 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 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")].
16
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
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
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 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
17
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, 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 the Preliminary Prospectus Supplement or 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, (iv) caused by any Underwriter Prepared Issuer FWP 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 your 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 that
was caused by any error or omission in any Pool Information unless you have
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, 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 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
18
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 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
19
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 I, 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 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.
20
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 I, 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
