EXHIBIT 1.4
FORM OF UNDERWRITING AGREEMENT (NON-ITERATIVE)
RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
Home Loan Backed Notes, Series 20[__]-[__]
Initial Note Balance Class Note Rate
$[___________] Class A-1 Notes [Adjustable Rate]
$[___________] Class A-2 Notes [_____]%
$[___________] Class A-3 Notes [_____]%
$[___________] Class A-4 Notes [_____]%
UNDERWRITING AGREEMENT
[__________ ___], 20[___]
[Name of Underwriter] [Name of Underwriter]
[Address of Underwriter] [Address of Underwriter]
Ladies and Gentlemen:
By entering into this Underwriting Agreement (this "Agreement"),
Residential Funding Mortgage Securities II, Inc., a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in Schedule I attached
hereto (each an "Underwriter" and, together, the "Underwriters") the respective
amounts of Home Loan-Backed Notes, Class A-1, Class A-2, Class A-3 and Class A-4
Notes set forth opposite their names. The Company has entered into an Amended
and Restated Trust Agreement, to be dated as of [____________ ____], 20[___]
(the "Trust Agreement"), with [_________] (the "Owner Trustee") creating the
Home Loan Trust 20[__]-[__] (the "Issuer"), a statutory business trust
established under the laws of the State of Delaware. The Company proposes to
direct the Owner Trustee pursuant to the Trust Agreement to cause the Issuer to
issue Home Loan-Backed Notes, Series 20[__]-[__], Class A-1, Class A-2, Class
A-3 and Class A-4 (collectively, the "Notes") and Home Loan-Backed Certificates,
Series 20[__]-[__] (the "Certificates" and, collectively with the Notes, the
"Securities"). Only the Notes are being purchased by the Underwriters hereunder.
The Notes will be issued pursuant to an Indenture, dated as of
[____________ ___], 20[___] (the "Indenture"), between the Issuer and
[_________________] (the "Indenture Trustee") and will represent indebtedness of
the Issuer. The Certificates will be issued pursuant to the Trust Agreement. The
Securities will be secured by assets of the Trust which are pledged by the
Issuer to the Indenture Trustee pursuant to the Indenture and which will consist
of: (i) a pool of fixed-rate home loans (the "Pool") secured by second liens on
fee simple interests in one-
to four-family residential properties (the "Home Loans") as described in the
Prospectus Supplement (as hereinafter defined); (ii) all amounts on deposit in
the Payment Account and (iii) any proceeds of the foregoing. In addition, an
unconditional financial guaranty insurance policy will be issued by
[___________________] ("_____") pursuant to an insurance agreement, dated as of
[___________ ____], 20[___] (the "Insurance Agreement"), among the Issuer,
Residential Funding Company, LLC ("Residential Funding"), as seller and master
servicer, the Company, the Indenture Trustee and [_____], with respect to the
Notes.
The Company has entered into a home loan purchase agreement, dated as of
[___________ ____], 20[___] (the "Cut-off Date") with Residential Funding,
pursuant to which Residential Funding has transferred to the Company all of its
right, title and interest in and to the Home Loans as of the Cut-off Date and
the collateral securing each such Home Loan (the "Home Loan Purchase
Agreement").
The Home Loans will be serviced by Residential Funding, as master servicer
(the "Master Servicer") pursuant to the terms of a Servicing Agreement, dated as
of [___________ ____], 20[___] (the "Servicing Agreement"), among the Master
Servicer, the Issuer and the Indenture Trustee. The Notes are described more
fully in the Base Prospectus and the Prospectus Supplement (each as hereinafter
defined) which the Company has furnished to the Underwriters. The Trust
Agreement, the Servicing Agreement, the Home Loan Purchase Agreement, the
Indenture and the Insurance Agreement, collectively, are referred to as the
"Agreements". Capitalized terms used but not defined herein shall have the
meanings set forth in the Agreements.
1. Representations, Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with each
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 Backed Notes (issuable in series),
including the Notes, which registration statement has become effective,
and a copy of which, as amended to the date hereof, has heretofore been
delivered to the Underwriters. 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 Notes 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 Notes, 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
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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 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 Notes as contemplated hereunder. The Company acknowledges that the
Underwriter Information constitutes the only information furnished in
writing by the Underwriters or on their behalf for use in connection with
the preparation of the Registration Statement, any Preliminary Prospectus
or the Prospectus, and the Underwriters each confirm 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.
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(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 Notes 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 Underwriters
have 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 either of the Underwriters pursuant to
Section 4.4(c) is limited to information included within the
definition of ABS Informational and Computational Materials, (y)
that constitute Note 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 Home 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
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Release No. 33-8591 (Securities Offering Reform) when prepared by
any Underwriter, including traditional computational and analytical
materials prepared by an 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 thereof prepared by or on behalf of any
Underwriter that contains only a description of the final terms of
the Notes or of the offering of the Notes.
(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
Note 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 Notes will
conform in all material respects to the description thereof contained in
the Prospectus and the representations and warranties of the Company in
the Trust Agreement will be true and correct in all material respects.
1.2 Residential Funding represents and warrants to, and agrees with
each Underwriter that as of the Closing Date the representations and warranties
of Residential Funding in the Home Loan Purchase Agreement and in the Servicing
Agreement will be true and correct in all material respects.
1.3 Each Underwriter represents and warrants to and agrees with the
Company and Residential Funding that:
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(a) Such 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 Notes remain outstanding.
(b) Such 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 Notes remain outstanding.
(c) Such Underwriter hereby certifies that (i) with respect to any
classes of Notes 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 Note sold to any person
on the date of initial sale thereof by such Underwriter will not be less
than $100,000 and (ii) with respect to each class of Notes to be
maintained on the book-entry records of The Depository Trust Company
("DTC"), the interest in each such class of Notes sold to any person on
the date of initial sale thereof by such Underwriter will not be less than
the minimum denomination indicated for such class of Notes in the
Prospectus Supplement.
(d) Such Underwriter will have funds available at [______________],
in such Underwriter's account at such bank at the time all documents are
executed and the closing of the sale of the Notes is completed, except for
the transfer of funds and the delivery of the Notes. 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, such
Underwriter has complied with all of its obligations hereunder and all
Underwriter Prepared Issuer FWP and Underwriter Information prepared by
such Underwriter 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 by such Underwriter to any
investor by such Underwriter in connection with the offering of any Notes.
(f) Prior to the Closing Date, each Underwriter shall notify the
Company and Residential Funding of the earlier of (x) the date on which
the Prospectus Supplement is first used by such Underwriter 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 each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, the Notes set forth opposite its name in
Schedule I hereto, at a price equal to [_____]% of the aggregate principal
balance of the Notes as of the Closing Date (as defined herein). There will be
added to the purchase price of the Notes (other than the Class A-1 Notes) an
amount equal to interest accrued thereon from the Cut-off Date up to but not
including the Closing Date.
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3. Delivery and Payment. Delivery of and payment for the Notes 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 the Underwriters shall
designate, which date and time may be postponed by agreement between the
Underwriters and the Company (such date and time of delivery and payment for the
Notes being herein called the "Closing Date"). Delivery of the Series
20[__]-[__], Class A-1, Class A-2, Class A-3 and Class A-4 Notes shall be made
to the Underwriters through The Depository Trust Company (such Notes, the "DTC
Registered Notes") against payment by each Underwriter of the purchase price
thereof to or upon the order of the Company by wire transfer in immediately
available funds.
4. Offering by Underwriters.
4.1 It is understood that the Underwriters propose to offer the
Notes for sale to the public as set forth in the Prospectus and each Underwriter
agrees that all such offers and sales 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, no Underwriter has pledged, sold,
disposed of or otherwise transferred any Note, Home Loans or any interest in any
Note.
4.2 It is understood that each Underwriter will solicit offers to
purchase the Notes as follows:
(a) Prior to the time it has received the Approved Offering
Materials such Underwriter may, in compliance with the provisions of this
Agreement, solicit offers to purchase Notes; provided, that it shall not
accept any such offer to purchase a Note or any interest in any Note or
Home Loan or otherwise enter into any Contract of Sale for any Note, any
interest in any Note or any Home Loan prior to its conveyance of Approved
Offering Materials to the investor.
(b) any Written Communication relating to the Notes 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 Notes 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 Notes, supersedes any information contained in any
prior similar materials relating to the Notes. 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 Notes referred to in this free writing
prospectus and to solicit an offer to purchase the Notes,
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 Notes, until we have
accepted your offer to purchase Notes.
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The Notes referred to in these materials are being sold when,
as and if issued. The issuing entity is not obligated to issue
such Notes or any similar security and the underwriter's
obligation to deliver such Notes is subject to the terms and
conditions of the underwriting agreement with the issuing
entity and the availability of such Notes when, as and if
issued by the issuing entity. You are advised that the terms
of the Notes, and the characteristics of the home loan pool
backing them, may change (due, among other things, to the
possibility that home loans that comprise the pool may become
delinquent or defaulted or may be removed or replaced and that
similar or different home loans may be added to the pool, and
that one or more classes of Notes may be split, combined or
eliminated), at any time prior to issuance or availability of
a final prospectus. You are advised that Notes may not be
issued that have the characteristics described in these
materials. The underwriter's obligation to sell such Notes to
you is conditioned on the home loans and Notes having the
characteristics described in these materials. If for any
reason the issuing entity does not deliver such Notes, 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 Notes 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 no Underwriter will enter into a Contract
of Sale with any investor until the Approved Offering Materials have been
conveyed to the investor with respect to the Notes which are the subject of such
Contract of Sale.
4.4 It is understood that each 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, no Underwriter shall convey or
deliver any Written Communication to any person in connection with the
initial offering of the Notes, 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.
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(b) Each Underwriter shall comply with all applicable laws and
regulations in connection with the use of Free Writing Prospectuses,
including but not limited to Rules 164 and 433 of the 1933 Act Regulations
and all Commission guidance relating to Free Writing Prospectuses,
including but not limited to Commission Release No. 33-8591.
(c) It is understood and agreed that all information provided by an
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 prepared by such 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, such
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 Notes, the final version of the terms of the Notes 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
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 ______________."
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Each of the Underwriters 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 Underwriters or the Company, as
applicable (which shall not be unreasonably withheld).
(e) Each 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 an Underwriter provides the Underwriter Prepared Issuer FWP to
investors pursuant to the terms of this Agreement. Notwithstanding the
foregoing, each 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
an 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) Each 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 each Underwriter, to the effect
that such accountants have performed certain specified procedures, all of
which have been agreed to by the Company and each 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 that 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 such Underwriter Prepared Issuer FWP, is accurate except
as to such matters that are not deemed by the Company and the applicable
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, such Underwriter shall
cooperate with the Company to prepare a corrective Issuer Free Writing
Prospectus that such Underwriter will provide to any such prospective
investor and the Company shall file to the extent required herein. In the
event that an Underwriter becomes aware that, as of the date on which an
investor entered into a
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Contract of Sale, any Free Writing Prospectus prepared by or on behalf of
such Underwriter and delivered to such investor contained any untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading (such Free
Writing Prospectus, a "Defective Free Writing Prospectus"), such
Underwriter shall notify the Company thereof as soon as practical but in
any event within one business day after discovery.
(i) If an Underwriter does not provide any Free Writing Prospectuses
to the Company pursuant to subsection (e) above, such 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 Notes that would
constitute an Underwriter Prepared Issuer FWP.
(j) In the event of any delay in the delivery by an 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 Underwriters, to delay the Closing Date
and to take other appropriate actions in each case as necessary in order
to allow the Company to comply with its agreement set forth in Section
5.10 to file such Underwriter Prepared Issuer FWP by the time specified
therein.
(k) Each 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 Notes. 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 such Underwriter to
solicit offers to purchase Notes to the extent not filed with the
Commission;
(ii) regarding each Free Writing Prospectus delivered by such
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) Each Underwriter covenants with the Company that after the final
Prospectus is available such Underwriter shall not distribute any written
information concerning the Notes 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.
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(m) No Underwriter shall use any Free Writing Prospectus in
connection with the solicitation of offers to purchase Notes from any
prospective investor in a class of Notes with denominations of less than
$25,000 or otherwise designated as a "retail" class of Notes, and no
Underwriter shall authorize any such use of any Free Writing Prospectus by
any dealer that purchases any such Notes from such Underwriter.
4.5 The Underwriters further agree that on or prior to the sixth day
after the Closing Date, the Underwriters 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 Notes, (a) if less than 10% of the
aggregate principal balance of such class of Notes 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 Notes has been sold to the
public as of such date but no single price is paid for at least 10% of the
aggregate principal balance of such class of Notes, then the weighted average
price at which the Notes of such class were sold expressed as a percentage of
the principal balance of such class of Notes sold, or (c) the first single price
at which at least 10% of the aggregate principal balance of such class of Notes
was sold to the public, (ii) the prepayment assumption used in pricing each
class of Notes, 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 Notes to the extent such information
can in the good faith judgment of the Underwriters be determined by them.
4.6 Each 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 such 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 such
Underwriter; (ii) if a paper copy of the Prospectus is requested by a person who
receives a confirmation, such Underwriter shall deliver a printed or paper copy
of such Prospectus; and (iii) if an electronic copy of the Prospectus is
delivered by an Underwriter for any purpose, such copy shall be the same
electronic file containing the Prospectus in the identical form transmitted
electronically to such Underwriter by or on behalf of the Company specifically
for use by such Underwriter pursuant to this Section 4.6; for example, if the
Prospectus is delivered to an Underwriter by or on behalf of the Company in a
single electronic file in pdf format, then such Underwriter will deliver the
electronic copy of the Prospectus in the same single electronic file in pdf
format. Each Underwriter further agrees that (i) if it delivers to an investor
the Prospectus in pdf format, upon such Underwriter's receipt of a request from
the investor within the period for which delivery of the Prospectus is required,
such Underwriter will promptly deliver or cause to be delivered to the investor,
without charge, a paper copy of the Prospectus and (ii) it will provide to the
Company any 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 pdf format, except to the extent that the Company, in
its sole discretion, waives such requirements.
5. Agreements. The Company and each Underwriter agree as follows:
5.1 Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Notes, the Company will furnish the
Underwriters with a copy of each such proposed amendment or supplement.
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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 Notes in which a prospectus relating to the Notes is required to
be delivered under the Act, any event occurs as a result of which it is
necessary to amend or supplement the Prospectus, as then amended or
supplemented, in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it shall be necessary to amend or supplement the Prospectus to comply with
the Act or the 1933 Act Regulations, the Company promptly will prepare and
furnish, at its own expense, to the Underwriters, 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 an 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 such 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 such Underwriter may
prepare corrective information, with notice to the other party, and such
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 Underwriters, 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 Underwriters may
reasonably request; provided, however, that if the Prospectus is not
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delivered with the confirmation in reliance on Rule 172 by an Underwriter, such
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.
5.6 The Company agrees, so long as the Notes shall be outstanding,
or until such time as the Underwriters shall cease to maintain a secondary
market in the Notes, whichever first occurs, to deliver to the Underwriters the
annual statement as to compliance delivered to [__________], the Indenture
Trustee and the Issuer pursuant to Section 3.10 of the Servicing Agreement and
the Indenture and the annual statement of a firm of independent public
accountants furnished to [__________], the Issuer and the Indenture Trustee
pursuant to Section 3.11 of the 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 Notes for sale under the laws of such jurisdictions as the Underwriters may
reasonably designate and will maintain such qualification in effect so long as
required for the initial distribution of the Notes; 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 the Underwriters
for any reasonable expenses (including reasonable fees and disbursements of
counsel) reasonably incurred by the Underwriters in connection with
qualification of the Notes for sale and determination of their eligibility for
investment under the laws of such jurisdictions as the Underwriters 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 Notes, and for expenses incurred in distributing the Prospectus
(including any amendments and supplements thereto) to the Underwriters. Except
as herein provided, the Underwriters shall be responsible for paying all costs
and expenses incurred by the Underwriters, including the fees and disbursements
of the Underwriters' counsel, in connection with the purchase and sale of the
Notes.
5.9 If, during the period after the Closing Date in which a
prospectus relating to the Notes 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 Notes is in
effect, the Company will advise the Underwriters 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 an 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 Notes 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 Notes and the date of first use, and
(2) a description of the terms of the Notes that does not reflect the
final
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terms after they have been established for all classes of all Notes 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 such 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 Underwriters must comply with their obligations pursuant
to Section 4.4 and that the Company shall not be required to file any Free
Writing Prospectus prepared by such 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 Each Underwriter shall file any Underwriter Free Writing
Prospectus that has been distributed by such Underwriter in a manner reasonably
designed to lead to its broad, unrestricted dissemination within the later of
two business days after such 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 such
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 each 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 Underwriters are 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 Underwriters shall have no
responsibility or liability to the Company with respect thereto. Any review by
the Underwriters of the Company, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit
of the Underwriters and shall not be on behalf of the Company.
-15-
6. Conditions to the Obligations of the Underwriters. The Underwriters'
obligation to purchase the Notes shall be subject to the following conditions:
6.1 No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened by the Commission; and
the Prospectus Supplement shall have been filed or transmitted for filing by
means reasonably calculated to result in a filing with the Commission pursuant
to Rule 424(b) under the Act.
6.2 Since [____________ _____], [_____] 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 the Underwriters 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 Servicing Agreement, the Indenture, the Home Loan Purchase
Agreement, the Trust 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 Trust 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 the Underwriters 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 Servicing Agreement, the Indenture, the Home
Loan Purchase Agreement, the Trust 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 Servicing Agreement, the
Home Loan Purchase Agreement and in this Agreement are true and correct in all
material respects.
6.5 The Underwriters shall have received the opinions (and
supplementary letter) 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 The Underwriters shall have received an opinion (and
supplementary letter) from [______________________], in a form satisfactory to
the Underwriters.
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6.7 The Underwriters shall have received from
[______________________], certified public accountants, (a) a letter dated the
date hereof and satisfactory in form and substance to the Underwriters and the
Underwriters' counsel, to the effect that they have performed certain specified
procedures, all of which have been agreed to by the Underwriters, 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 Home Loan Pool", "Description of the Servicing Agreement",
"Description of the Securities", "Certain Yield and Prepayment Considerations"
and "Annex II--Home Loan Statistical Information" 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(f).
6.8 The Class A Notes 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. ("Xxxxx'x")].
6.9 The Underwriters shall have received the opinion of
[__________________], special counsel to the Indenture Trustee, dated the
Closing Date, substantially to the effect set forth in Exhibit C.
6.10 The Underwriters shall have received the opinion of
[__________________], special counsel to the Owner Trustee, dated the Closing
Date, substantially to the effect set forth in Exhibit D.
6.11 The Underwriters shall have received from
[______________________], associate counsel to the Company, a reliance letter
with respect to any opinions delivered to the rating agencies, or the
Underwriters shall have been listed as an addressee on any such opinions.
6.12 The Underwriters shall have received the opinion of in-house
counsel to [__________], dated the Closing Date, substantially to the effect set
forth in Exhibit H.
The Company will furnish the Underwriters with conformed copies of the above
opinions, certificates, letters and documents as the Underwriters reasonably
request.
7. Indemnification and Contribution.
7.1 The Company and Residential Funding, jointly and severally,
agree to indemnify and hold harmless each Underwriter and each person, if any,
who controls any 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 Notes 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
-17-
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 an 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 any 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 Each Underwriter agrees, severally and not jointly, 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 such 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 such 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 such Underwriter (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 such Underwriter's
failure to comply with Section 4.3 or failure to file any Underwriter Free
Writing Prospectus prepared by such Underwriter 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 such Underwriter that was caused
by any error or omission in any Pool Information unless such 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 any 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
-18-
untrue statement or alleged untrue statement or omission or alleged omission
made therein relating to the Excluded Information. In addition, each Underwriter
agrees, severally and not jointly, 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 original issue discount reported by Residential Funding or the
determination that a Note is or will or will not be issued with original issue
discount, which determination resulted from incorrect information provided by
such 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 more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by the Underwriters, 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
-19-
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 Notes 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
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 an 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 such
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 Underwriters 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 Underwriters or on behalf of the Underwriters or any person controlling
any 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 Notes.
8. Termination. This Agreement shall be subject to termination by notice
given to the Company and Residential Funding, if the sale of the Notes 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 the Underwriters terminate this Agreement in accordance
with this Section 8, the Company or Residential Funding will reimburse the
Underwriters for all reasonable out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that
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shall have been reasonably incurred by the Underwriters in connection with the
proposed purchase and sale of the Notes.
9. Certain Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, Residential Funding, each Underwriter or the officers of any of the
Company, Residential Funding, and each 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 any Underwriter
or on its behalf or made by or on behalf of any other Underwriter, the Company
or Residential Funding or any of their respective officers, directors or
controlling persons, and will survive delivery of and payment for the Notes.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to [Underwriter's Name], will be mailed, delivered
or telegraphed and confirmed to it at [Underwriter's Address], or if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at
Residential Funding Mortgage Securities II, Inc., 0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: President; or, if
sent to Residential Funding will be mailed, delivered or telegraphed and
confirmed to it at Residential Funding 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 PAGE FOLLOWS]
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If the foregoing is in accordance with each Underwriter's understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
letter and such Underwriter's acceptance shall represent a binding agreement
among the Company, Residential Funding and each Underwriter.
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
the date first above written.
[UNDERWRITERS]
By:
---------------------------------
Name:
Title:
SCHEDULE I
Underwriter Principal Amount of Class A-1 Notes
[___________________].................... $[___________________]
[___________________].................... $[___________________]
Total.................................... $[___________________]
Underwriter Principal Amount of Class A-2 Notes
[___________________].................... $[___________________]
[___________________].................... $[___________________]
Total.................................... $[___________________]
Underwriter Principal Amount of Class A-3 Notes
[___________________].................... $[___________________]
[___________________].................... $[___________________]
Total.................................... $[___________________]
Underwriter Principal Amount of Class A-4 Notes
[___________________].................... $[___________________]
[___________________].................... $[___________________]
Total.................................... $[___________________]
EXHIBIT A-1
[Counsel to Company]
Main Closing Opinion (Underwriting Agreement)
X-0-0
XXXXXXX X-0
[Counsel to Company] Opinion
Tax Disclosure Letter (Underwriting Agreement)
X-0-0
XXXXXXX X-0
[Counsel to Company]
Supplementary Letter (Underwriting Agreement)
A-3-1
EXHIBIT B
In-House Opinion
Main Closing Opinion (Underwriting Agreement)
B-1
EXHIBIT C
Opinion of [_____________________]
Counsel to Indenture Trustee
C-1
EXHIBIT D
Opinion of [_____________________]
Counsel to the Owner Trustee
D-1
EXHIBIT E
EXCLUDED INFORMATION
E-1
EXHIBIT F
UNDERWRITER INFORMATION
F-1
EXHIBIT G
UNDERWRITER'S CERTIFICATE
[___________ ____], 20[___]
Residential Funding Mortgage Securities II, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: Residential Funding Mortgage Securities II, Inc., Home Loan- Backed
Notes, Series 20[__]-[__]
Pursuant to Section 4.5 of the Underwriting Agreement, dated
[_______________ ____], 20[___] (the "Underwriting Agreement"), among
Residential Funding Mortgage Securities II, Inc. (the "Depositor"), Residential
Funding Company, LLC ("RFC"), [_____________________] and
[_____________________] (each an "Underwriter", and together the "Underwriters")
relating to the Notes (as defined in the Underwriting Agreement), the
undersigned do hereby certify that:
(a) The prepayment assumption used in pricing the Notes was [100]% PSA.
(b) Set forth below is (i) the first price, as a percentage of the
principal balance of each class of Notes, at which 10% of the
aggregate principal balance of each such class of Notes was sold to
the public at a single price, if applicable, or (ii) if more than
10% of a class of Notes have been sold to the public but no single
price is paid for at least 10% of the aggregate principal balance of
such class of Notes, then the weighted average price at which the
Notes of such class were sold expressed as a percentage of the
principal balance of such class of Notes, or (iii) if less than 10%
of the aggregate principal balance of a class of Notes has been sold
to the public, the purchase price for each such class of Notes paid
by the Underwriters expressed as a percentage of the principal
balance of such class of Notes calculated by: (1) estimating the
fair market value of each such class of Notes as of [___________
____], 20[___]; (2) adding such estimated fair market value to the
aggregate purchase price of each class of Notes described in clause
(i) or (ii) above; (3) dividing each of the fair market values
determined in clause (1) by the sum obtained in clause (2); (4)
multiplying the quotient obtained for each class of Notes in clause
(3) by the purchase price paid by the Underwriters for all the
Notes; and (5) for each class of Notes, dividing the product
obtained from such class of Notes in clause (4) by the original
principal balance of such class of Notes:
G-1
--------------------------------------------
Class A-1: [____]%
--------------------------------------------
Class A-2: [____]%
--------------------------------------------
Class A-3: [____]%
--------------------------------------------
Class A-4 [____]%
--------------------------------------------
[* less than 10% has been sold to the public]
[The prices set forth above do not include accrued interest with respect
to periods before closing.]
G-2
[UNDERWRITER]
By:
--------------------------
Name:
Title:
[UNDERWRITER]
By:
--------------------------
Name:
Title:
G-3
EXHIBIT H
Opinion of In-House Counsel to [__________]
H-1
