EXHIBIT 1.3
FORM OF UNDERWRITING AGREEMENT (Iterative Notes)
RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
Home Loan-Backed Notes, Series 20[__]-[__]
Initial Note Balance Class Note Rate
-------------------- ----- ---------
$[____________] Class I-A-1 Notes [_____]%
$[____________] Class II-A-1 Notes [_____]%
$[____________] Class II-A-2 Notes [_____]%
$[____________] Class II-A-3 Notes [_____]%
$[____________] Class II-A-4 Notes [_____]%
$[____________] Class II-A-5 Notes [_____]%
$[____________] Class II-A-6 Notes [_____]%
$[____________] Class II-A-7 Notes [_____]%
$[____________] Class III-A-1 Notes [_____]%
$[____________] Class III-A-2 Notes [Variable Rate]
[Notional] Class III-A-3 Notes [Variable Rate]
$[____________] Class III-A-4 Notes [_____]%
$[____________] Class III-A-5 Notes [_____]%
$[____________] Class III-A-6 Notes [_____]%
$[____________] Class III-A-7 Notes [_____]%
$[____________] Class III-A-8 Notes [_____]%
$[____________] Class III-A-9 Notes [_____]%
$[____________] Class III-A-10 Notes [_____]%
$[____________] Class I-M-1 Notes [_____]%
$[____________] Class I-M-2 Notes [_____]%
$[____________] Class I-M-3 Notes [_____]%
$[____________] Class II-M-1 Notes [_____]%
$[____________] Class II-M-2 Notes [_____]%
$[____________] Class II-M-3 Notes [_____]%
$[____________] Class III-M-1 Notes [_____]%
$[____________] Class III-M-2 Notes [_____]%
$[____________] Class III-M-3 Notes [_____]%
UNDERWRITING AGREEMENT
[_______________ ___], 20[___]
[Name of Underwriter,]
[as representative of the Underwriters, "Representative"]
[Address of Underwriter]
Ladies and Gentlemen:
Residential Funding Mortgage Securities II, Inc., a Delaware corporation
(the "Company"), proposes to sell to you (also referred to herein as the
"Underwriter") Home Loan-Backed Notes, Series 20[__]-[__], Class I-A-1, Class
II-A-1, Class II-A-2, Class II-A-3, Class II-A-4, Class II-A-5, Class II-A-6,
Class II-A-7, Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4, Class
III-A-5, Class III-A-6, Class III-A-7, Class III-A-8, Class III-A-9, Class
III-A-10, Class I-M-1, Class I-M-2, Class I-M-3, Class II-M-1, Class II-M-2,
Class II-M-3, Class III-M-1, Class III-M-2 and
Class III-M-3 Notes (collectively, the "Notes"). 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 Collateral referred to
in the Indenture (as defined below) consists primarily of a pool (the "Pool") of
conventional, fixed-rate, one- to four-family residential first and second lien
mortgage loans (the "Mortgage Loans") as described in the Prospectus Supplement
(as hereinafter defined) to be sold by the Company.
The Notes will be issued pursuant to an indenture, dated as of
[_______________] 1, 20[__] (the "Cut-off Date"), (the "Indenture"), among the
Issuer and [__________________], as indenture trustee (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
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 Asset-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 you. The Company proposes to file with the
Commission pursuant to Rule 424(b) under the rules and regulations of the
Commission under the Act (the "1933 Act Regulations") a prospectus
supplement dated [_______________ ___], 20[___] (the "Prospectus
Supplement"), to the prospectus dated [_______________ ___], 20[___] (the
"Base Prospectus"), relating to the 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."
(b) The Registration Statement has become effective, and the
Registration Statement as of the effective date (the "Effective Date," as
defined in this paragraph), and the Prospectus, as of the date of the
Prospectus Supplement, complied in all material respects with the
applicable requirements of the Act and the 1933 Act Regulations; and the
Registration Statement, as of the Effective Date, did not contain any
untrue statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading; and each Issuer Free Writing Prospectus (as
defined herein) as of its date did not and at all times prior to the date
of the Prospectus Supplement will not, and the Prospectus and Designated
Static Pool Information, taken together, 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
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make the statements therein, in the light of the circumstances under which
they were made, not misleading (except in the case of any Issuer Free
Writing Prospectus, any omission with respect to information included in
the definition of Senior and Mezzanine Structure Information); provided,
however, that neither the Company nor Residential Funding makes any
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto relating to the information therein that is
Excluded Information (as defined herein); and provided, further, that
neither the Company nor Residential Funding makes any representations or
warranties as to either (i) any information contained in any Underwriter
Prepared Issuer FWP (as defined herein) or Underwriter Free Writing
Prospectus (as defined herein) except, in each case, to the extent of (x)
any information set forth therein that constitutes Pool Information (as
defined below) or (y) any information accurately extracted from any Issuer
Free Writing Prospectus and included in any Underwriter Prepared Issuer
FWP or Underwriter Free Writing Prospectus, or (ii) any information
contained in or omitted from the portions of the Prospectus identified by
underlining or other highlighting as shown in Exhibit F (the "Underwriter
Information"). The Effective Date shall mean the 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 you
or on your behalf for use in connection with the preparation of the
Registration Statement or the Prospectus, and the Underwriter confirms
that the Underwriter Information is correct.
(c) (i) "ABS Informational and Computational Materials" shall have
the meaning given such term in Item 1101 of Regulation AB.
(ii) "Approved Offering Materials" means with respect to any
class of Notes anticipated to be rated in the highest category by
any Rating Agency (as defined in the Pooling and Servicing
Agreement), collectively the following documents as most recently
provided by the Company and designated in writing by the Company as
Approved Offering Materials prior to the time of any Contract of
Sale: (i) one or more term sheets, providing factual information
about the Notes and the structure and basic parameters thereof
(excluding information about the subdivision of the senior classes
into tranches), the basic terms of the subordination or other credit
enhancements if known, factual information about the Mortgage Loans
(which may include parameters or "stips" or tabular data prepared by
the Company), the identity of and basic information about key
parties to the transaction known to the Company, and the tax, ERISA
and SMMEA characteristics of the Notes, (ii) a term sheet
supplement, containing risk factors and additional information of
the type to appear in the Prospectus Supplement to the extent known,
and (iii) the Base Prospectus, which may be provided by a weblink.
Each of the items described in (i) and (ii) in the preceding
sentence shall constitute an Issuer Free Writing Prospectus and any
additional information provided by the Underwriter shall constitute
an Underwriter Free Writing Prospectus or Underwriter Prepared
Issuer FWP, as the case may be.
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With respect to any class of Notes, other than the Class II-A-4,
Class II-A-7, Class III-A-8 and Class III-A-10 Notes, anticipated to
be rated in the second highest or a lower category by any Rating
Agency, "Approved Offering Materials" means the Prospectus.
(iii) "Contract of Sale" has the same meaning as in Rule 159
of the 1933 Act Regulations and all Commission guidance relating to
Rule 159.
(iv) "Designated Static Pool Information" shall mean the
static pool information referred to in the Prospectus under the
caption "Static Pool Information" but deemed to be excluded from the
Registration Statement and Prospectus pursuant to Item 1105(d) of
Regulation AB.
(v) "Excluded Information" shall mean, with respect to each of
the Registration Statement and the Prospectus, the information
identified by underlining or other highlighting as shown on Exhibit
E.
(vi) "Free Writing Prospectus" shall have the meaning given
such term in Rules 405 and 433 of the 1933 Act Regulations.
(vii) "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.
(viii) "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.
(ix) "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 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 Underwriter
to include in a Free Writing Prospectus.
(x) "Pool Information" means with respect to any Free Writing
Prospectus, the information (including any Preliminary Pool
Information) with respect to the characteristics of the Mortgage
Loans and administrative and
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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.
(xi) "Preliminary 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 and designated "Preliminary
Pool Information."
(xii) "Senior and Mezzanine Structure Information" shall mean,
with respect to each class of Notes, (i) the Note Rate if a fixed
rate, or the formula for determining the Note Rate, (ii) the terms
and the provider of any yield maintenance agreement, swap agreement
or other agreement that provides payments payable on any class of
the Notes, (iii) the terms and the provider of any surety bond,
financial guaranty insurance policy, or other insurance policy
regarding any class of the Notes not known to the Company when the
Approved Offering Materials were prepared, (iv) the allocation to
each class of Notes of the aggregate amount of the cashflow payable
among the Notes collectively, and (v) the allocation to each class
of Notes of the aggregate amount of any Realized Losses allocable to
the Notes collectively, in each case, to the extent such information
is not contained in the Approved Offering Materials.
(xiii) "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.
(xiv) "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.
(xv) "Underwriter Prepared Issuer FWP" shall mean any Free
Writing Prospectus or portion thereof prepared by or on behalf of
the Underwriter that contains only a description of the final terms
of the Notes or of the offering of the Notes after the final terms
have been established for all classes of Senior Notes.
(xvi) "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.
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(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 Indenture 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 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) [Reserved.]
(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 Notes 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 Notes remain outstanding.
(d) [Reserved.]
(e) [Reserved.]
(f) The Underwriter hereby certifies that (i) with respect to any
classes of Notes issued in authorized denominations or Percentage
Interests (as defined in the Pooling and Servicing Agreement) 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 the 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
the Underwriter will not be less than the minimum denomination indicated
for such class of Notes in the Prospectus Supplement.
(g) The Underwriter will have funds available at
[_____________________], in the Underwriter's account at such bank at the
time all documents are executed and the closing of the sale of the Notes
is completed, except for
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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.
(h) As of the date hereof and as of the Closing Date, the
Underwriter has complied with all of its obligations hereunder and all
information contained in any Underwriter Free Writing Prospectus and in
any Underwriter Prepared Issuer FWP as used in connection with any
Contract of Sale and all Underwriter Information are accurate in all
material respects (taking into account the assumptions explicitly set
forth in such Underwriter Prepared Issuer FWP or Underwriter Free Writing
Prospectus), except to the extent of (x) any errors therein that are
caused by errors or omissions in the Pool Information or (y) information
accurately extracted from any Issuer Free Writing Prospectus and included
in any Underwriter Prepared Issuer FWP or Underwriter Free Writing
Prospectus.
(i) Prior to the Closing Date, the Underwriter shall notify the
Company and Residential Funding of the earlier of (x) the date on which
the Prospectus Supplement is first used and (y) the time of the first
Contract of Sale to which such Prospectus Supplement relates.
(j) The Underwriter hereby further represents and agrees that, with
respect to the United Kingdom:
(i) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated an
invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the
Financial Services and Markets Act) received by it in
connection with the issue or sale of the Notes in
circumstances in which Section 21(1) of the Financial
Services and Markets Act does not apply to the Issuer;
and
(ii) it has complied and will comply with all applicable
provisions of the Financial Services and Markets Act
with respect to anything done by it in relation to the
Notes in, from or otherwise involving the United
Kingdom.
(k) In relation to each Member State of the European Economic Area
which has implemented the Prospectus directive (each, a "Relevant Member
State"), the Underwriter hereby represents and agrees that with effect
from and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the "Relevant Implementation
Date") it has not made and will not make an offer of Notes to the public
in that Relevant Member State prior to the publication of a prospectus in
relation to the Notes which has been approved by the competent authority
in that Relevant Member State or, where appropriate, approved in another
Relevant Member State and notified to the competent authority in that
Relevant Member State, all in accordance with the Prospectus Directive,
except that it may, with effect from and including the Relevant
Implementation Date, make an offer of Notes to the public in that Relevant
Member State at any time:
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(i) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so
authorized or regulated, whose corporate purpose is
solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last
financial year; (2) a total balance sheet of more than
(euro)43,000,000 and (3) an annual net turnover of more
than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(iii) in any other circumstances which do not require the
publication by the Depositor of a prospectus pursuant to
Article 3 of the Prospectus Directive.
For the purposes of this representation, the expression an "offer of Notes to
the public" in relation to any Notes in any Relevant Member State means the
communication in any form and by any means of sufficient information on the
terms of the offer and the Notes to be offered so as to enable an investor to
decide to purchase or subscribe the Notes, as the same may be varied in that
Member State by any measure implementing the Prospectus Directive in that Member
State and the expression "Prospectus Directive" means Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member State.
1.4 [Reserved.]
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 Notes at a price
equal to [_____]% of the aggregate principal balance of the Notes as of the
Closing Date (as defined herein), plus accrued interest. There will be added to
the purchase price of the Notes an amount equal to interest accrued thereon from
the Cut-off Date up to but not including the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Notes shall be
made at the office of [counsel to Company] 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 Notes being herein called the
"Closing Date"). Delivery of the 20[__]-[__], Class I-A-1, Class II-A-1, Class
II-A-2, Class II-A-3, Class II-A-4, Class II-A-5, Class II-A-6, Class II-A-7,
Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4, Class III-A-5, Class
III-A-6, Class III-A-7, Class III-A-8, Class III-A-9, Class III-A-10, Class
I-M-1, Class I-M-2, Class I-M-3, Class II-M-1, Class II-M-2, Class II-M-3, Class
III-M-1, Class III-M-2 and Class III-M-3 Notes shall be made to you through the
Depository Trust Company ("DTC") (such Notes, the "DTC Registered Notes").
4. Offering by Underwriter.
4.1 It is understood that you propose to offer the Notes 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 Note, Mortgage Loans or any interest in any Note.
8
4.2 It is understood that you will solicit offers to purchase the
Notes 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 Notes; provided, that you shall not accept any
such offer to purchase a Note or any interest in any Note or Mortgage Loan
or otherwise enter into any Contract of Sale for any Note, any interest in
any Note or any Mortgage Loan prior to your 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.
The Notes referred to in these materials are being sold when, as and
if issued. The issuer 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 issuer and the availability of such Notes when,
as and if issued by the issuer. You are advised that the terms of
the Notes, 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 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 mortgage
loans and Notes having the characteristics described in these
materials. If for any reason the issuer does not deliver such Notes,
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 Notes which you have committed to purchase,
9
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.
(c) Any Preliminary Pool Information shall not be provided to
prospective investors unless such Preliminary Pool Information is accompanied by
the Approved Offering Materials and the following statements (or substantially
similar statements approved by the Company) appear prominently thereon:
The information set forth below, entitled "preliminary information",
was derived from a preliminary pool of mortgage loans which is not
representative of the mortgage loans that will comprise the final
mortgage loan pool. The preliminary pool of mortgage loans
represents only a subset of the final mortgage loan pool and
mortgage loans that are included in the preliminary mortgage loan
pool may be removed from the final mortgage loan pool. It is
expected that the characteristics of the final mortgage loan pool
will differ, and may differ materially, from the characteristics of
the preliminary pool of mortgage loans and the preliminary
information may differ materially from information of a similar type
if derived from the final mortgage loan pool. Although the
characteristics of the final mortgage loan pool are expected to be
within the parameters for the mortgage loan characteristics as set
forth in the tables entitled ["collateral stipulations - mortgage
pool characteristics"] [accompanying Approved Offering Materials],
they are not expected to conform in all material respects to the
characteristics of the preliminary mortgage loan pool. You should
refer to the parameters for the mortgage loan characteristics in the
tables entitled ["collateral stipulations - mortgage pool
characteristics"] in the accompanying [Approved Offering Materials].
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 Notes 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 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 any Issuer Free Writing Prospectus and
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included in any Underwriter Prepared Issuer FWP or Underwriter Free
Writing Prospectus.
(b) The Underwriter shall comply with all applicable laws and
regulations in connection with the use of Free Writing Prospectuses,
including but not limited to Rules 164 and 433 of the 1933 Act Regulations
and all Commission guidance relating to Free Writing Prospectuses,
including but not limited to Commission Release No. 33-8591.
(c) It is understood and agreed that all information provided by the
Underwriter to or through Bloomberg or Intex or similar entities for use
by prospective investors, or imbedded in any CDI file provided to
prospective investors, to the extent constituting a Free Writing
Prospectus, shall be deemed an Underwriter Free Writing Prospectus.
(d) All Free Writing Prospectuses provided to prospective investors,
whether or not filed with the Commission, shall bear a legend including
the following statement (or a substantially similar statement approved by
the Company):
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SECURITIES AND EXCHANGE COMMISSION (THE SEC)
FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU
INVEST, YOU SHOULD READ THE PROSPECTUS IN THAT REGISTRATION
STATEMENT AND OTHER DOCUMENTS THE DEPOSITOR HAS FILED WITH THE SEC
FOR MORE COMPLETE INFORMATION ABOUT THE DEPOSITOR AND THE OFFERING.
YOU MAY GET THESE DOCUMENTS AT NO CHARGE BY VISITING XXXXX ON THE
SEC WEB SITE AT XXX.XXX.XXX. ALTERNATIVELY, THE DEPOSITOR, ANY
UNDERWRITER OR ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE
TO SEND YOU THE PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY CALLING
TOLL-FREE 1-8[XX-XXX-XXXX] OR VIA EMAIL AT ________________."
Each of the Underwriter and the Company shall have the right to request
additional specific legends or notations to appear on any Free Writing
Prospectus and shall have the right to require changes regarding the use
of terminology and the right to determine the types of information
appearing therein with the approval of the other (which shall not be
unreasonably withheld).
(e) The Underwriter shall deliver to the Company and its counsel (in
such format as reasonably required by the Company), no later than the
business day prior to the date of the required filing under Section 5.10,
an Underwriter Prepared Issuer FWP. To facilitate filing to the extent
required by Section 5.10 or 5.11, as applicable, all
11
Underwriter Derived Information shall be set forth in a document separate
from any Underwriter Prepared Issuer FWP including Issuer Information. The
Underwriter shall deliver to the Company one business day following a
request by the Company all Preliminary Pool Information (or information
based on or derived in whole or in part from Preliminary Pool Information)
provided by it to any prospective investor.
(f) The Underwriter shall provide the Company with a letter from
[_____________________], certified public accountants, prior to the
Closing Date, satisfactory in form and substance to the Company,
Residential Funding and their respective counsels and the Underwriter, to
the effect that such accountants have performed certain specified
procedures, all of which have been agreed to by the Company and the
Underwriter, as a result of which they determined that certain information
of an accounting, financial or statistical nature that is included in any
Underwriter Prepared Issuer FWP, other than any Pool Information therein
and any information accurately extracted from any Issuer Free Writing
Prospectus and included in such Underwriter Prepared Issuer FWP, is
accurate except as to such matters that are not deemed by the Company and
the Underwriter to be material. The foregoing letter shall be at the
expense of the Underwriter.
(g) None of the information in any Free Writing Prospectus may
conflict with the information then contained in the Registration Statement
or any prospectus or prospectus supplement that is a part thereof. The
Notes described in any Underwriter Free Writing Prospectus or any
Underwriter Prepared Issuer FWP will be of a type set forth in one of the
categories listed beneath the heading "Description of the Securities" in
the term sheet supplement included in the Approved Offering Materials and
the description of the characteristics of the Notes contained in such
Underwriter Free Writing Prospectus or any Underwriter Prepared Issuer FWP
shall not be inconsistent with the description of the Notes beneath such
heading in the term sheet supplement.
(h) The Company shall not be obligated to file any Issuer Free
Writing Prospectuses that have been determined to contain any material
error or omission unless such Issuer Free Writing Prospectus has been
provided to a prospective investor, in which case, the Underwriter shall
cooperate with the Company to prepare a corrective Issuer Free Writing
Prospectus that the Underwriter will provide to any such prospective
investor and the Company shall file to the extent required herein. In the
event that the Underwriter becomes aware that, as of the date on which an
investor entered into a Contract of Sale, any Free Writing Prospectus
prepared by or on behalf of the Underwriter and delivered to such investor
contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained therein,
in light of the circumstances under which they were made, not misleading
(such Free Writing Prospectus, a "Defective Free Writing Prospectus"), the
Underwriter shall notify the Company thereof as soon as practical but in
any event within one business day after discovery.
(i) If the Underwriter does not provide any Free Writing
Prospectuses to the Company pursuant to subsection (e) above, the
Underwriter shall be deemed to have represented, as of the Closing Date,
that it did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the Notes
that would constitute an Underwriter Prepared Issuer FWP.
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(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 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 the Underwriter to
solicit offers to purchase Notes 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 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.
(m) The Underwriter shall not 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 the
Underwriter shall not authorize any such use of any Free Writing
Prospectus by any dealer that purchases any such Notes 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 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
13
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 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.
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 Notes, the Company will furnish you with a
copy of each such proposed amendment or supplement.
5.2 The Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424(b) under the Act
by means reasonably calculated to result in filing with the Commission pursuant
to said rule.
5.3 If, during the period after the first date of the public
offering of the 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 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.
14
5.4 If the Company or the Underwriter determines or becomes aware
that any Written Communication (including without limitation any Free Writing
Prospectus) or oral statement (when considered in conjunction with all
information conveyed at the time of Contract of Sale) contains an untrue
statement of material fact or omits to state a material fact necessary to make
the statements, in light of the circumstances under which they were made, not
misleading at the time that a Contract of Sale was entered into, either the
Company or the Underwriter may prepare corrective information with notice to the
other party, and the Underwriter shall deliver such information in a manner
reasonably acceptable to both parties, to any person with whom a Contract of
Sale was entered into, and such information shall provide any such person with
the following:
(a) Adequate disclosure of the contractual arrangement;
(b) Adequate disclosure of the person's rights under the
existing Contract of Sale at the time termination is sought;
(c) Adequate disclosure of the new information that is
necessary to correct the misstatements or omissions in the
information given at the time of the original Contract of Sale; and
(d) A meaningful ability to elect to terminate or not
terminate the prior Contract of Sale and to elect to enter into or
not enter into a new Contract of Sale.
Any costs incurred to the investor in connection with any such termination or
reformation shall be subject to Sections 7.1 and 7.2, as applicable.
5.5 The Company will furnish to you, without charge, a copy of the
Registration Statement (including exhibits thereto) and, so long as delivery of
a prospectus by an underwriter or dealer may be required by the Act, as many
copies of the Prospectus, any documents incorporated by reference therein and
any amendments and supplements thereto as you may reasonably request; provided,
however, that if the Prospectus is not delivered with the confirmation in
reliance on Rule 172, you will provide the notice specified in Section 4.6 in
every confirmation and will deliver a paper copy of the prospectus to those
investors that request a paper copy thereof.
5.6 The Company agrees, so long as the Notes shall be outstanding,
or until such time as you shall cease to maintain a secondary market in the
Notes, whichever first occurs, to deliver to you the annual statement as to
compliance delivered to the Trustee pursuant to Section [__] of the Servicing
Agreement and the annual statement of a firm of independent public accountants
furnished to the Trustee pursuant to Section [__] 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 you 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.
15
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 Notes 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 Notes, 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 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 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 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 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 the Underwriter first
provides this information to investors and the date upon which the Company
is required to file the Prospectus Supplement with the Commission pursuant
to Rule 424(b)(3) of the Act.
provided further, that prior to the filing of any Underwriter Prepared Issuer
FWP by the Company, the Underwriter must comply with its obligations pursuant to
Section 4.4 and that the Company shall not be required to file any Free Writing
Prospectus to the extent such Free Writing Prospectus includes information in a
Free Writing Prospectus or Prospectus previously filed with the Commission or
that does not contain substantive changes from or additions to a Free Writing
Prospectus previously filed with the Commission.
5.11 The Underwriter shall file any Underwriter Free Writing
Prospectus that has been distributed by the Underwriter in a manner reasonably
designed to lead to its broad, unrestricted dissemination within the later of
two business days after the Underwriter first provides this information to
investors and the date upon which the Company is required to file the Prospectus
Supplement with the Commission pursuant to Rule 424(b)(3) of the Act or
16
otherwise as required under Rule 433 of the Act; provided, however, that the
Underwriter shall not be required to file any Underwriter Free Writing
Prospectus to the extent such Underwriter Free Writing Prospectus includes
information in a Free Writing Prospectus or Prospectus previously filed with the
Commission or that does not contain substantive changes from or additions to a
Free Writing Prospectus previously filed with the Commission.
5.12 The Company acknowledges and agrees that the Underwriter is
acting solely in the capacity of an arm's length contractual counterparty to the
Company with respect to the offering of securities contemplated hereby
(including in connection with determining the terms of the offering) and not as
a 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 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 [_______________] 1, 20[___] there shall have been no
material adverse change (not in the ordinary course of business) in the
condition of the Company or Residential Funding.
6.3 The Company shall have delivered to you a certificate, dated the
Closing Date, of the President, a Senior Vice President or a Vice President of
the Company to the effect that the signer of such certificate has examined this
Agreement, the Approved Offering Materials, the Prospectus, the Servicing
Agreement, the Trust Agreement, the Indenture 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 Indenture 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 Trust Agreement, the Servicing Agreement, the
Indenture and this Agreement and that, to the best of his or her
17
knowledge after reasonable investigation, the representations and warranties of
Residential Funding contained in the Servicing Agreement and in this Agreement
are true and correct in all material respects.
6.5 You shall have received the opinions of [_________________],
special counsel for the Company and Residential Funding, dated the Closing Date
and substantially to the effect set forth in Exhibits X-0, X-0 xxx X-0, and the
opinion of [_________________], associate counsel for the Company and
Residential Funding, dated the Closing Date and substantially to the effect set
forth in Exhibit B.
6.6 You shall have received a negative assurance letter regarding
the Prospectus from [_________________], counsel for the Underwriter, 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 Home Loan Pool", "Description of the Servicing Agreement",
"Description of the Securities" 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(f).
6.8 The Class I-A Notes shall have been rated ["____"] by [Xxxxx'x
Investors Service, Inc. ("Moody's")] and ["____"] by [Fitch Ratings ("Fitch")].
The Class II-A and Class III-A Notes shall have been rated ["____"] and, with
respect to the Class II-A-4, Class II-A-7, Class III-A-8 and Class III-A-10
Notes, ["____"] by Moody's and ["____"] by Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc. ("Standard & Poor's") and Fitch. The Class I-M-1,
Class II-M-1 and Class III-M-1 Notes shall have been rated ["____"] by Fitch.
The Class I-M-2, Class II-M-2 and Class III-M-2 Notes shall have been rated
["____"] by Fitch. The Class I-M-3, Class II-M-3 and Class III-M-3 Notes shall
have been rated ["____"] by Fitch.
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.
18
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 Notes as originally filed or
in any amendment thereof or other filing incorporated by reference therein, or
in the Prospectus and Designated Static Pool Information, taken together, or
incorporated by reference in the Prospectus (if used within the period set forth
in Section 5.3 hereof and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or (ii) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Issuer Free Writing
Prospectus, or any omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (except any omission with respect to
information included in the definition of Senior and Mezzanine Structure
Information), or (iii) caused by any untrue statement of a material fact or
alleged untrue statement of a material fact contained in 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 (x) any error or omission in
any Pool Information or (y) or any information accurately extracted from any
Issuer Free Writing Prospectus and included in any Underwriter Prepared Issuer
FWP or Underwriter Free Writing Prospectus; except insofar as such losses,
claims, damages, or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon any information with
respect to which the Underwriter has agreed to indemnify the Company pursuant to
clause (i) of Section 7.2; provided, however, that none of the Company,
Residential Funding or you will be liable in any case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein relating to the Excluded Information.
7.2 You agree to indemnify and hold harmless the Company,
Residential Funding, their respective directors or officers and any person
controlling the Company or Residential Funding within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages and liabilities (i) caused by any untrue statement
or alleged untrue statement of material fact contained in the Underwriter
Information, or any omission or alleged omission to state therein any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, (ii)
caused by any untrue statement or alleged untrue statement of material fact
contained in any Underwriter Free Writing Prospectus (except for any information
accurately extracted from any Issuer Free Writing Prospectus and included in
such Underwriter Free Writing Prospectus), or any omission or alleged omission
to state therein a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, (iii)
caused by any untrue statement or alleged untrue statement of material fact
contained in any Underwriter Prepared Issuer FWP (except for any information
accurately extracted from any Issuer Free Writing Prospectus and included in
such Underwriter
19
Prepared Issuer FWP), or any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (iv) resulting from
your failure to comply with Section 4.4(e) or Section 4.3 or failure to file any
Underwriter Free Writing Prospectus required to be filed in accordance with
Section 5.11; provided, however, that the indemnification set forth in clauses
(ii) and (iii) of this Section 7.2 shall not apply to the extent of any error or
omission in any Underwriter Prepared Issuer FWP or any Underwriter Free Writing
Prospectus that was caused by any error or omission in any Pool Information;
provided, further, that none of the Company, Residential Funding or you will be
liable in any case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein relating to the Excluded
Information. In addition, you agree to indemnify and hold harmless the Company,
Residential Funding, their respective directors or officers and any person
controlling the Company or Residential Funding against any and all losses,
claims, damages, liabilities and expenses (including, without limitation,
reasonable attorneys' fees) caused by, resulting from, relating to, or based
upon the original issue discount reported by Residential Funding or the
determination that a Note is or will or will not be issued with the original
issue discount, which determination resulted 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 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
20
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 Notes 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 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 Notes.
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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 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 Notes.
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 Notes.
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 [Name of Underwriter], [Address of
Underwriter], or if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Residential Funding Mortgage Securities II,
Inc., 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: President; or, if sent to Residential Funding will be mailed,
delivered or telegraphed and confirmed to it at Residential Funding Company,
LLC, 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: President.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
12. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of law principles thereof, other than Sections 5-1401 and 5-1402 of the
New York General Obligations Law.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW]
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, Residential Funding and you.
Very truly yours,
RESIDENTIAL FUNDING MORTGAGE
SECURITIES II, INC.
By:
-------------------------------------
Name:
Title:
RESIDENTIAL FUNDING COMPANY, LLC
By:
-------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
[UNDERWRITER]
By:
-----------------------
Name:
Title:
EXHIBIT A-1
Counsel to Company Opinion
Main Closing Opinion (Underwriting Agreement)
Exhibit X-0
XXXXXXX X-0
Counsel to Company
Negative Assurance Letter (Underwriting Agreement)
Exhibit A-2
EXHIBIT A-3
Counsel to Company Opinion
Tax Disclosure Letter (Underwriting Agreement)
Exhibit A-3
EXHIBIT B
In-House Opinion
Main Closing Opinion (Underwriting Agreement)
Exhibit B-1
EXHIBIT C
Opinion of [_______________]
Counsel to Trustee
Exhibit C-1
EXHIBIT D
Opinion of [_____________]
Special Counsel to the Company
Exhibit D-1
EXHIBIT E
EXCLUDED INFORMATION
(See attached)
Exhibit E-1
EXHIBIT F
UNDERWRITER INFORMATION
(See attached)
Exhibit F-1
EXHIBIT G
UNDERWRITER'S CERTIFICATE
Exhibit G-1
