EXHIBIT 1.2
RESIDENTIAL ASSET SECURITIES CORPORATION
Mortgage Asset-Backed Pass-Through Certificates, Series [Deal Name]
Initial Principal Amount Class Initial Pass-Through Rate
$[____] Class A-1 Certificates [____]%
$[____] Class A-2 Certificates [____]%
$[____] Class A-3 Certificates [____]%
$[____] Class R Certificates [____]%
UNDERWRITING AGREEMENT (NON-ITERATIVE)
[___________] [__], 20[__]
[Underwriter]
Ladies and Gentlemen:
Residential Asset Securities Corporation, a Delaware corporation (the "Company"), proposes to sell to
you (also referred to herein as the "Underwriter") Mortgage Asset-Backed Pass-Through Certificates, Series [Deal
Name], Class A-1, Class A-2, Class A-3, and Class R Certificates (collectively, the "Certificates"), other than a
de minimis portion of the Class R Certificates, having the aggregate principal amounts and Pass-Through Rates set
forth above. The Certificates, together with the Class M-1, Class M-2, Class M-3, Class B-1, Class B-2 and Class
B-3 Certificates of the same series, will evidence the entire beneficial interest in the Trust Fund (as defined
in the Pooling and Servicing Agreement referred to below), consisting primarily of a pool (the "Pool") of
conventional, fixed-rate, one- to four-family residential first lien mortgage loans (the "Mortgage Loans") as
described in the Prospectus Supplement (as hereinafter defined) to be sold by the Company. A de minimis portion
of the Class R Certificates will not be sold hereunder and will be held by Residential Funding Corporation
("Residential Funding").
The Certificates will be issued pursuant to a pooling and servicing agreement, dated as of [________]
[__], 200[__] (the "Pooling and Servicing Agreement"), among the Company, as seller, Residential Funding, as
master servicer, and [_________], as trustee (the "Trustee"). The Certificates are described more fully in the
Base Prospectus and the Prospectus Supplement (each as hereinafter defined), which the Company has furnished to
you.
1. Representations, Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with you that:
(a) The Company has filed with the Securities and Exchange Commission (the "Commission") a registration
statement (No. 333-[_______]) on Form S-3 for the registration under the Securities Act of 1933, as
amended (the "Act"), of Mortgage Asset-Backed Pass-Through Certificates (issuable in series), including
the Certificates, which registration statement has become effective, and a copy of which, as amended to
the date hereof, has heretofore been delivered to you. The Company proposes to file with the Commission
pursuant to Rule 424(b) under the rules and regulations of the Commission under the Act (the "1933 Act
Regulations") a prospectus supplement (the "Prospectus Supplement"), to the prospectus dated [________]
[__], 200[__] (the "Base Prospectus"), relating to the Certificates and the method of distribution
thereof. Such registration statement (No. 333-[________]) including exhibits thereto and any
information incorporated therein by reference, as amended at the date hereof, is hereinafter called the
"Registration Statement"; and the Base Prospectus and the Prospectus Supplement and any information
incorporated therein by reference, together with any amendment thereof or supplement thereto authorized
by the Company on or prior to the Closing Date (as defined herein) for use in connection with the
offering of the Certificates, are hereinafter called the "Prospectus." Any preliminary form of the
Prospectus Supplement to be filed pursuant to Rule 424(b) is referred to as a "Preliminary Prospectus
Supplement" and, together with the Base Prospectus, and as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto, a "Preliminary Prospectus."
(b) The Registration Statement has become effective, and the Registration Statement as of the effective date
(the "Effective Date," as defined in this paragraph), and the Prospectus, as of the date of the
Prospectus Supplement, complied in all material respects with the applicable requirements of the Act and
the 1933 Act Regulations; and the Registration Statement, as of the Effective Date, did not contain any
untrue statement of a material fact and did not omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; and each Issuer Free Writing
Prospectus (as defined herein) as of its date did not, and the Approved Offering Materials (as defined
herein) as of the date of the Approved Offering Materials did not and as of the Closing Date will not,
and the Prospectus, as of the date of the Prospectus Supplement did not and as of the Closing Date will
not, contain an untrue statement of a material fact and did not and will not omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that neither the Company nor Residential Funding
makes any representations or warranties as to the information contained in or omitted from the
Registration Statement, the Approved Offering Materials or the Prospectus or any amendment thereof or
supplement thereto relating to the information therein that is Excluded Information (as defined herein);
and provided, further, that neither the Company nor Residential Funding makes any representations or
warranties as to either (i) any information contained in any Underwriter Prepared Issuer FWP (as defined
herein) or Underwriter Free Writing Prospectus (as defined herein) except, in each case to the extent of
(x) any information set forth therein that constitutes Pool Information (as defined below) or (y) any
information accurately extracted from the Preliminary Prospectus Supplement or any Issuer Free Writing
Prospectus and included in any Underwriter Prepared Issuer FWP, or (ii) any information contained in or
omitted from the portions of the Approved Offering Materials or Prospectus identified by underlining or
other highlighting as shown in Exhibit F (the "Underwriter Information"). The Effective Date shall mean
the earlier of the date on which the Prospectus Supplement is first used and the time of the first
Contract of Sale (as defined herein) to which such Prospectus Supplement relates. The initial effective
date of the Registration Statement was within three years of the Closing Date. If the third anniversary
of the initial effective date occurs within six months after the Closing Date, the Company will use best
efforts to take such action as may be necessary or appropriate to permit the public offering and sale of
the Certificates as contemplated hereunder. The Company acknowledges that the Underwriter Information
constitutes the only information furnished in writing by you or on your behalf for use in connection
with the preparation of the Registration Statement, any Preliminary Prospectus or the Prospectus, and
the Underwriter confirms that the Underwriter Information is correct.
(c) (i) "ABS Informational and Computational Materials" shall have the meaning given such term in Item 1101
of Regulation AB.
(ii) "Approved Offering Materials" means the Preliminary Prospectus.
(iii) "Contract of Sale" has the same meaning as in Rule 159 of the 1933 Act Regulations and all
Commission guidance relating to Rule 159.
(iv) "Excluded Information" shall mean, with respect to (x) each of the Registration Statement, the
Approved Offering Materials and the Prospectus, the information identified by underlining or
other highlighting as shown on Exhibit E, and (y) each Underwriter Prepared Issuer FWP and each
Underwriter Free Writing Prospectus, all information contained therein which is restated in, or
is corrected and superseded by, the Approved Offering Materials.
(v) "Free Writing Prospectus" shall have the meaning given such term in Rules 405 and 433 of the 1933
Act Regulations.
(vi) "Issuer Free Writing Prospectus" shall mean any Free Writing Prospectus prepared by or on behalf
of the Company and identified by the Company as an Issuer Free Writing Prospectus and relating to
the Certificates or the offering thereof.
(vii) "Issuer Information" shall mean any information of the type specified in clauses (1) - (5) of
footnote 271 of Commission Release No. 33-8591 (Securities Offering Reform), other than
Underwriter Derived Information. Consistent with such definition, "Issuer Information" shall not
be deemed to include any information in a Free Writing Prospectus solely by reason of the
Company's review of the materials pursuant to Section 4.4(e) below and, consistent with
Securities Offering Reform Questions and Answers, November 30, 2005 promulgated by the staff of
the Commission, "Issuer Information" shall not be deemed to include any information in a Free
Writing Prospectus solely by reason that the Underwriter has agreed not to use such Free Writing
Prospectus without consent of the Company.
(viii) "Permitted Additional Materials" shall mean information that is not ABS Informational and
Computational Materials and (x) that are referred to in Section 4.4(c) so long as any Issuer
Information provided by the Underwriter pursuant to Section 4.4(c) is limited to information
included within the definition of ABS Informational and Computational Materials, (y) that
constitute Certificate price, yield, weighted average life, subscription or allocation
information, or a trade confirmation, or (z) otherwise with respect to which the Company has
provided written consent to the Underwriter to include in a Free Writing Prospectus.
(ix) "Pool Information" means with respect to any Free Writing Prospectus, the information with
respect to the characteristics of the Mortgage Loans and administrative and servicing fees, as
provided by or on behalf of the Company or Residential Funding to the Underwriter at the time
most recent to the date of such Free Writing Prospectus.
(x) "Underwriter Derived Information" shall refer to information of the type described in clause (5)
of footnote 271 of Commission Release No. 33-8591 (Securities Offering Reform) when prepared by
the Underwriter, including traditional computational and analytical materials prepared by the
Underwriter.
(xi) "Underwriter Free Writing Prospectus" shall mean all Free Writing Prospectuses prepared by or on
behalf of the Underwriter other than any Underwriter Prepared Issuer FWP, including any Permitted
Additional Materials.
(xii) "Underwriter Prepared Issuer FWP" shall mean any Free Writing Prospectus prepared by or on behalf
of the Underwriter that contains any Issuer Information, including any Free Writing Prospectus or
portion thereof prepared by or on behalf of the Underwriter that contains only a description of
the final terms of the Certificates or of the offering of the Certificates.
(xiii) "Written Communication" shall have the meaning given such term in Rule 405 of the 1933 Act
Regulations.
(d) The Company has been duly incorporated and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has the requisite corporate power to own its properties and to
conduct its business as presently conducted by it.
(e) The Company was not, as of any date on or after which a bona fide offer (as used in Rule 164(h)(2) of
the 1933 Act Regulations) of the Certificate is made an Ineligible Issuer, as such term is defined in
Rule 405 of the 1933 Act Regulations. The Company shall comply with all applicable laws and regulations
in connection with the use of Free Writing Prospectuses, including but not limited to Rules 164 and 433
of the 1933 Act Regulations and all Commission guidance relating to Free Writing Prospectuses, including
but not limited to Commission Release No. 33-8591.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) As of the Closing Date (as defined herein) the Certificates will conform in all material respects to the
description thereof contained in the Prospectus and the representations and warranties of the Company in
the Pooling and Servicing Agreement will be true and correct in all material respects.
1.2 Residential Funding represents and warrants to, and agrees with you that as of the Closing Date the
representations and warranties of Residential Funding in the Pooling and Servicing Agreement will be true and
correct in all material respects.
1.3 The Underwriter represents and warrants to and agrees with the Company and Residential Funding that:
(a) No purpose of the Underwriter relating to the purchase of the Class R Certificates by the Underwriter is
or will be to enable the Company to impede the assessment or collection of any tax.
(b) The Underwriter has no present knowledge or expectation that it will be unable to pay any United States
taxes owed by it so long as any of the Certificates remain outstanding.
(c) The Underwriter has no present knowledge or expectation that it will become insolvent or subject to a
bankruptcy proceeding for so long as any of the Certificates remain outstanding.
(d) No purpose of the Underwriter relating to any sale of any of the Class R Certificates by the Underwriter
will be to enable it to impede the assessment or collection of tax. In this regard, the Underwriter
hereby represents to and for the benefit of the Company and Residential Funding that the Underwriter
intends to pay taxes associated with holding the Class R Certificates (other than with respect to the
portion of each of the Class R Certificates retained by Residential Funding), as they become due, fully
understanding that it may incur tax liabilities in excess of any cash flows generated by the Class R
Certificates.
(e) The Underwriter will, in connection with any transfer it makes of the Class R Certificates, obtain from
its transferee the affidavit required by Section 5.02(f)(i)(B)(I) of the Pooling and Servicing
Agreement, will not consummate any such transfer if it knows or believes that any representation
contained in such affidavit is false and will provide the Trustee with the Certificate required by
Section 5.02(f)(i)(B)(II) of the Pooling and Servicing Agreement.
(f) The Underwriter hereby certifies that (i) with respect to any classes of Certificates issued in
authorized denominations or Percentage Interests of less than a notional amount of $2,000,000 or a
Percentage Interest of 20% the fair market value of each such Certificate sold to any person on the date
of initial sale thereof by the Underwriter will not be less than $100,000 and (ii) with respect to each
class of Certificates to be maintained on the book-entry records of The Depository Trust Company
("DTC"), the interest in each such class of Certificates sold to any person on the date of initial sale
thereof by the Underwriter will not be less than the minimum denomination indicated for such class of
Certificates in the Prospectus Supplement.
(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 Certificates is completed,
except for the transfer of funds and the delivery of the Certificates. Such funds will be available for
immediate transfer into the account of Residential Funding maintained at such bank.
(h) As of the date hereof and as of the Closing Date, the Underwriter has complied with all of its
obligations hereunder and all Underwriter Prepared Issuer FWP and Underwriter Information are accurate
in all material respects (taking into account the assumptions explicitly set forth in such Underwriter
Prepared Issuer FWP, except for any Excluded Information and to the extent of (x) any errors therein
that are caused by errors or omissions in the Pool Information) or (y) information accurately extracted
from the Preliminary Prospectus Supplement or any Issuer Free Writing Prospectus and included in any
Underwriter Prepared Issuer FWP. The Underwriter Prepared Issuer FWP delivered to the Company, if any,
constitute a complete set of all Underwriter Prepared Issuer FWP furnished to any investor by the
Underwriter in connection with the offering of any Certificates.
(i) Prior to the Closing Date, the Underwriter shall notify the Company and Residential Funding of the
earlier of (x) the date on which the Prospectus Supplement is first used and (y) the time of the first
Contract of Sale to which such Prospectus Supplement relates.
1.4 The Underwriter covenants and agrees to pay directly, or reimburse the Company or Residential Funding
upon demand for (i) any and all taxes (including penalties and interest) owed or asserted to be owed by the
Company or Residential Funding as a result of a claim by the Internal Revenue Service that the transfer of the
Class R Certificates to the Underwriter hereunder or any transfer thereof by the Underwriter may be disregarded
for federal tax purposes and (ii) any and all losses, claims, damages and liabilities, including attorney's fees
and expenses, arising out of any failure of the Underwriter to make payment or reimbursement in connection with
any such assertion as required in (i) above. In addition, the Underwriter acknowledges that on the Closing Date
immediately after the transactions described herein it will be the owner of the Class R Certificates (other than
a de minimis portion of the Class R Certificates to be held by Residential Funding) for federal tax purposes, and
the Underwriter covenants that it will not assert in any proceeding that the transfer of the Class R Certificates
from the Company to the Underwriter should be disregarded for any purpose.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to you, and you agree to purchase from the Company, the
Certificates (other than a de minimis portion of the Class R Certificates, which shall be transferred by the
Company to Residential Funding) at a price equal to [_____]% of the aggregate certificate principal balance of
the Certificates as of the Closing Date (as defined herein). There will be added to the purchase price of the
Certificates an amount equal to interest accrued thereon from the Cut-off Date up to but not including the
Closing Date. The purchase price for the Certificates was agreed to by the Company in reliance upon the transfer
from the Company to the Underwriter of the tax liabilities associated with the ownership of the Class R
Certificates.
3. Delivery and Payment. Delivery of and payment for the Certificates shall be made at the office of
[Mayer, Brown, Xxxx ® Maw LLP] [Xxxxxx, Xxxxxxxxxx ® Xxxxxxxxx LLP] at 10:00 a.m., New York City time, on
[_________] [__], 200[__] or such later date as you shall designate, which date and time may be postponed by
agreement between you and the Company (such date and time of delivery and payment for the Certificates being
herein called the "Closing Date"). Delivery of the [Deal Name], Class A-1, Class A-2 and Class A-3 Certificates
shall be made to you through the Depository Trust Company ("DTC") (such Certificates, the "DTC Registered
Certificates"), and delivery of the Class R Certificates (the "Definitive Certificates") shall be made in
registered, certificated form, in each case against payment by you of the purchase price thereof to or upon the
order of the Company by wire transfer in immediately available funds. The Definitive Certificates shall be
registered in such names and in such denominations as you may request not less than two business days in advance
of the Closing Date. The Company agrees to have the Definitive Certificates available for inspection, checking
and packaging by you in New York, New York not later than 9:00 a.m. on the Closing Date.
4. Offering by Underwriter.
4.1 It is understood that you propose to offer the Certificates for sale to the public as set forth in the
Prospectus and you agree that all such offers and sales by you shall be made in compliance with all applicable
laws and regulations. Prior to the date of the first Contract of Sale made based on the Approved Offering
Materials, you have not pledged, sold, disposed of or otherwise transferred any Certificate, Mortgage Loans or
any interest in any Certificate.
4.2 It is understood that you will solicit offers to purchase the Certificates as follows:
(a) Prior to the time you have received the Approved Offering Materials you may, in compliance with the
provisions of this Agreement, solicit offers to purchase Certificates; provided, that you shall not accept any
such offer to purchase a Certificate or any interest in any Certificate or Mortgage Loan or otherwise enter into
any Contract of Sale for any Certificate, any interest in any Certificate or any Mortgage Loan prior to your
conveyance of Approved Offering Materials to the investor.
(b) any Written Communication relating to the Certificates made by an Underwriter in compliance with the
terms of this Agreement prior to the time such Underwriter has entered into a Contract of Sale for Certificates
with the recipient shall prominently set forth the following statements (or a substantially similar statements
approved by the Company):
The information in this free writing prospectus, if conveyed prior to the time
of your contractual commitment to purchase any of the Certificates, supersedes
any information contained in any prior similar materials relating to the
Certificates. The information in this free writing prospectus is preliminary,
and is subject to completion or change. This free writing prospectus is being
delivered to you solely to provide you with information about the offering of
the Certificates referred to in this free writing prospectus and to solicit an
offer to purchase the Certificates, when, as and if issued. Any such offer to
purchase made by you will not be accepted and will not constitute a
contractual commitment by you to purchase any of the Certificates, until we
have accepted your offer to purchase Certificates.
The Certificates referred to in these materials are being sold when, as and if
issued. The issuer is not obligated to issue such Certificates or any similar
security and the underwriter's obligation to deliver such Certificates is
subject to the terms and conditions of the underwriting agreement with the
issuer and the availability of such Certificates when, as and if issued by the
issuer. You are advised that the terms of the Certificates, and the
characteristics of the mortgage loan pool backing them, may change (due, among
other things, to the possibility that mortgage loans that comprise the pool
may become delinquent or defaulted or may be removed or replaced and that
similar or different mortgage loans may be added to the pool, and that one or
more classes of Certificates may be split, combined or eliminated), at any
time prior to issuance or availability of a final prospectus. You are advised
that Certificates may not be issued that have the characteristics described in
these materials. The underwriter's obligation to sell such Certificates to
you is conditioned on the mortgage loans and Certificates having the
characteristics described in these materials. If for any reason the issuer
does not deliver such Certificates, the underwriter will notify you, and
neither the issuer nor any underwriter will have any obligation to you to
deliver all or any portion of the Certificates which you have committed to
purchase, and none of the issuer nor any underwriter will be liable for any
costs or damages whatsoever arising from or related to such non-delivery.
4.3 It is understood that you will not enter into a Contract of Sale with any investor until the Approved
Offering Materials have been conveyed to the investor with respect to the Certificates which are the subject of
such Contract of Sale.
4.4 It is understood that you may prepare and provide to prospective investors certain Free Writing
Prospectuses, subject to the following conditions:
(a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Act,
the Underwriter shall not convey or deliver any Written Communication to any person in connection with
the initial offering of the Certificates, unless such Written Communication (i) is made in reliance on
Rule 134 under the Act, (ii) constitutes a prospectus satisfying the requirements of Rule 430B under the
Act or (iii) constitutes a Free Writing Prospectus (as defined in Section 1.1(c) above) consisting
solely of (x) information of a type included within the definition of ABS Informational and
Computational Materials (as defined below), (y) Permitted Additional Materials or (z) information
accurately extracted from the Preliminary Prospectus Supplement or any Issuer Free Writing Prospectus
and included in any Underwriter Prepared Issuer FWP or any Underwriter Free Writing Prospectus.
(b) The Underwriter shall comply with all applicable laws and regulations in connection with the use of Free
Writing Prospectuses, including but not limited to Rules 164 and 433 of the 1933 Act Regulations and all
Commission guidance relating to Free Writing Prospectuses, including but not limited to Commission
Release No. 33-8591.
(c) It is understood and agreed that all information provided by the Underwriter to or through Bloomberg or
Intex or similar entities for use by prospective investors, or imbedded in any CDI file provided to
prospective investors, or in any email or other electronic message provided to prospective investors, to
the extent constituting a Free Writing Prospectus, shall be deemed for purposes of this Agreement to be
an Underwriter Free Writing Prospectus and shall not be subject to the required consent of the Company
set forth in the third sentence in Section 4.4(e). In connection therewith, the Underwriter agrees that
it shall not provide any information constituting Issuer Information through the foregoing media unless
(i) such information or substantially similar information is contained either in an Issuer Free Writing
Prospectus or in an Underwriter Prepared Issuer FWP in compliance with Section 4.4(e) or (ii) to the
extent such information consists of the terms of the Certificates, the final version of the terms of the
Certificates or substantially similar information is contained either in an Issuer Free Writing
Prospectus or in an Underwriter Prepared Issuer FWP in compliance with Section 4.4(e).
(d) All Free Writing Prospectuses provided to prospective investors, whether or not filed with the
Commission, shall bear a legend including the following statement (or a substantially similar statement
approved by the Company):
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SECURITIES AND EXCHANGE COMMISSION (THE SEC) FOR
THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST,
YOU SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND
OTHER DOCUMENTS THE DEPOSITOR HAS FILED WITH THE SEC FOR MORE
COMPLETE INFORMATION ABOUT THE DEPOSITOR AND THE OFFERING. YOU MAY
GET THESE DOCUMENTS AT NO CHARGE BY VISITING XXXXX ON THE SEC WEB
SITE AT XXX.XXX.XXX. ALTERNATIVELY, THE DEPOSITOR, ANY UNDERWRITER OR
ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE
PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY CALLING TOLL-FREE
1-8[XX-XXX-XXXX] OR VIA EMAIL AT ______________.
Each of the Underwriter and the Company shall have the right to request additional specific legends or
notations to appear on any Free Writing Prospectus and shall have the right to require changes regarding
the use of terminology and the right to determine the types of information appearing therein with the
approval of the other (which shall not be unreasonably withheld).
(e) The Underwriter shall deliver to the Company and its counsel (in such format as reasonably required by
the Company), prior to the proposed date of first use thereof, (unless such timing requirement is waived
by the Company), any Underwriter Prepared Issuer FWP (as defined above). To facilitate filing to the
extent required by Section 5.10 or 5.11, as applicable, all Underwriter Derived Information shall be set
forth in a document separate from any Underwriter Prepared Issuer FWP including Issuer Information.
Consent to use of any Underwriter Prepared Issuer FWP must be given by the Company in written or
electronic format before the Underwriter provides the Underwriter Prepared Issuer FWP to investors
pursuant to the terms of this Agreement. Notwithstanding the foregoing, the Underwriter shall not be
required to deliver or obtain consent to use an Underwriter Prepared Issuer FWP to the extent that it
does not contain substantive changes from or additions to any Underwriter Prepared Issuer FWP previously
approved by the Company. In the event that the Underwriter uses any Underwriter Prepared Issuer FWP
without complying with the foregoing requirements, that Underwriter Prepared Issuer FWP shall be deemed
to be an Underwriter Free Writing Prospectus for purposes of Section 7.1 and 7.2.
(f) The Underwriter shall provide the Company with a letter from [___________], certified public
accountants, prior to the Closing Date, satisfactory in form and substance to the Company, Residential
Funding and their respective counsels and the Underwriter, to the effect that such accountants have
performed certain specified procedures, all of which have been agreed to by the Company and the
Underwriter, as a result of which they determined that certain information of an accounting, financial
or statistical nature that is included in any Underwriter Prepared Issuer FWP, other than any Pool
Information therein and any information accurately extracted from the Preliminary Prospectus Supplement
or any Issuer Free Writing Prospectus and included in such Underwriter Prepared Issuer FWP, is accurate
except as to such matters that are not deemed by the Company and the Underwriter to be material. The
foregoing letter shall be at the expense of the Underwriter.
(g) None of the information in any Free Writing Prospectus may conflict with the information then contained
in the Registration Statement or any prospectus or prospectus supplement that is a part thereof.
(h) The Company shall not be obligated to file any Issuer Free Writing Prospectuses that have been
determined to contain any material error or omission unless such Issuer Free Writing Prospectus has been
provided to a prospective investor, in which case, the Underwriter shall cooperate with the Company to
prepare a corrective Issuer Free Writing Prospectus that the Underwriter will provide to any such
prospective investor and the Company shall file to the extent required herein. In the event that the
Underwriter becomes aware that, as of the date on which an investor entered into a Contract of Sale, any
Free Writing Prospectus prepared by or on behalf of the Underwriter and delivered to such investor
contained any untrue statement of a material fact or omitted to state a material fact necessary in order
to make the statements contained therein, in light of the circumstances under which they were made, not
misleading (such Free Writing Prospectus, a "Defective Free Writing Prospectus"), the Underwriter shall
notify the Company thereof as soon as practical but in any event within one business day after discovery.
(i) If the Underwriter does not provide any Free Writing Prospectuses to the Company pursuant to subsection
(e) above, the Underwriter shall be deemed to have represented, as of the Closing Date, that it did not
provide any prospective investors with any information in written or electronic form in connection with
the offering of the Certificates that would constitute an Underwriter Prepared Issuer FWP.
(j) In the event of any delay in the delivery by the Underwriter to the Company of any Underwriter Prepared
Issuer FWP required to be delivered in accordance with subsection (e) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to subsection (f) above, the Company shall have
the right to delay the release of the Prospectus to investors or to the Underwriter, to delay the
Closing Date and to take other appropriate actions in each case as necessary in order to allow the
Company to comply with its agreement set forth in Section 5.10 to file such Underwriter Prepared Issuer
FWP by the time specified therein.
(k) The Underwriter represents that it has in place, and covenants that it shall maintain, internal controls
and procedures which it reasonably believes to be sufficient to ensure full compliance with all
applicable legal requirements of the 1933 Act Regulations with respect to the generation and use of Free
Writing Prospectuses in connection with the offering of the Certificates. In addition, each Underwriter
shall, for a period of at least three years after the date hereof, maintain written and/or electronic
records of the following:
(i) any Free Writing Prospectus used by the Underwriter to solicit offers to purchase Certificates to
the extent not filed with the Commission;
(ii) regarding each Free Writing Prospectus delivered by the Underwriter to an investor, the date of
such delivery and identity of such investor; and
(iii) regarding each Contract of Sale entered into by such Underwriter, the date, identity of the
investor and the terms of such Contract of Sale, as set forth in the related confirmation of
trade.
(l) The Underwriter covenants with the Company that after the final Prospectus is available the Underwriter
shall not distribute any written information concerning the Certificates to a prospective investor
unless such information is preceded or accompanied by the final Prospectus. It is understood and agreed
that the use of written information in accordance with the preceding sentence is not a Free Writing
Prospectus and is not otherwise restricted or governed in any way by this Agreement.
(m) The Underwriter shall not use any Free Writing Prospectus in connection with the solicitation of offers
to purchase Certificates from any prospective investor in a class of Certificates with denominations of
less than $25,000 or otherwise designated as a "retail" class of Certificates, and the Underwriter shall
not authorize any such use of any Free Writing Prospectus by any dealer that purchases any such
Certificates from the Underwriter.
4.5 You further agree that on or prior to the sixth day after the Closing Date, you shall provide the
Company with a certificate, substantially in the form of Exhibit G attached hereto, setting forth (i) in the case
of each class of Certificates, (a) if less than 10% of the aggregate certificate principal balance of such class
of Certificates has been sold to the public as of such date, the value calculated pursuant to clause (b)(iii) of
Exhibit G hereto, or, (b) if 10% or more of such class of Certificates has been sold to the public as of such
date but no single price is paid for at least 10% of the aggregate certificate principal balance of such class of
Certificates, then the weighted average price at which the Certificates of such class were sold expressed as a
percentage of the certificate principal balance of such class of Certificates sold, or (c) the first single price
at which at least 10% of the aggregate certificate principal balance of such class of Certificates was sold to
the public, (ii) the prepayment assumption used in pricing each class of Certificates, and (iii) such other
information as to matters of fact as the Company may reasonably request to enable it to comply with its reporting
requirements with respect to each class of Certificates to the extent such information can in the good faith
judgment of the Underwriter be determined by it.
4.6 The Underwriter agrees that (i) if the Prospectus is not delivered with the confirmation in reliance on
Rule 172, it will include in every confirmation sent out the notice required by Rule 173 informing the investor
that the sale was made pursuant to the Registration Statement and that the investor may request a copy of the
Prospectus from the Underwriter; (ii) if a paper copy of the Prospectus is requested by a person who receives a
confirmation, Underwriter shall deliver a printed or paper copy of such Prospectus; and (iii) if an electronic
copy of the Prospectus is delivered by the Underwriter for any purpose, such copy shall be the same electronic
file containing the Prospectus in the identical form transmitted electronically to the Underwriter by or on
behalf of the Company specifically for use by the Underwriter pursuant to this Section 4.6; for example, if the
Prospectus is delivered to the Underwriter by or on behalf of the Company in a single electronic file in pdf
format, then the Underwriter will deliver the electronic copy of the Prospectus in the same single electronic
file in pdf format. The Underwriter further agrees that (i) if it delivers to an investor the Prospectus in pdf
format, upon the Underwriter's receipt of a request from the investor within the period for which delivery of the
Prospectus is required, the Underwriter will promptly deliver or cause to be delivered to the investor, without
charge, a paper copy of the Prospectus and (ii) it will provide to the Company any Underwriter Prepared Issuer
FWP, or portions thereof, which the Company is required to file with the Commission in electronic format and will
use reasonable efforts to provide to the Company such Underwriter Prepared Issuer FWP, or portions thereof, in
either Microsoft Word® or Microsoft Excel® format and not in a pdf, except to the extent that the Company, in its
sole discretion, waives such requirements.
5. Agreements. The Company and you agree as follows:
5.1 Before amending or supplementing the Registration Statement or the Prospectus with respect to the
Certificates, the Company will furnish you with a copy of each such proposed amendment or supplement.
5.2 The Company will cause the Preliminary Prospectus and Prospectus Supplement to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the Act by means reasonably calculated to result in filing
with the Commission pursuant to said rule.
5.3 If, during the period after the first date of the public offering of the Certificates in which a
prospectus relating to the Certificates is required to be delivered under the Act, any event occurs as a result
of which it is necessary to amend or supplement the Prospectus, as then amended or supplemented, in order to make
the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it shall be necessary to amend or supplement the Prospectus to comply with the Act or the 1933
Act Regulations, the Company promptly will prepare and furnish, at its own expense, to you, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law.
5.4 If the Company or the Underwriter determines or becomes aware that any Written Communication (including
without limitation any Approved Offering Materials) or oral statement (when considered in conjunction with all
information conveyed at the time of Contract of Sale) contains an untrue statement of material fact or omits to
state a material fact necessary to make the statements, in light of the circumstances under which they were made,
not misleading at the time that a Contract of Sale was entered into, either the Company or the Underwriter may
prepare corrective information with notice to the other party, and the Underwriter shall deliver such information
in a manner reasonably acceptable to both parties, to any person with whom a Contract of Sale was entered into,
and such information shall provide any such person with the following:
(a) Adequate disclosure of the contractual arrangement;
(b) Adequate disclosure of the person's rights under the existing Contract of Sale at the time termination
is sought;
(c) Adequate disclosure of the new information that is necessary to correct the misstatements or omissions
in the information given at the time of the original Contract of Sale; and
(d) A meaningful ability to elect to terminate or not terminate the prior Contract of Sale and to elect to
enter into or not enter into a new Contract of Sale.
Any costs incurred to the investor in connection with any such termination or reformation shall be subject to
Sections 7.1 and 7.2, as applicable.
5.5 The Company will furnish to you, without charge, a copy of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus by an underwriter or dealer may be required by the
Act, as many copies of the Prospectus, any documents incorporated by reference therein and any amendments and
supplements thereto as you may reasonably request; provided, however, that if the Prospectus is not delivered
with the confirmation in reliance on Rule 172, you will provide the notice specified in Section 4.6 in every
confirmation and will deliver a paper copy of the prospectus to those investors that request a paper copy thereof.
5.6 The Company agrees, so long as the Certificates shall be outstanding, or until such time as you shall
cease to maintain a secondary market in the Certificates, whichever first occurs, to deliver to you the annual
statement as to compliance delivered to the Trustee pursuant to Section 3.18 of the Pooling and Servicing
Agreement and the annual statement of a firm of independent public accountants furnished to the Trustee pursuant
to Section 3.19 of the Pooling and Servicing Agreement, as soon as such statements are furnished to the Company.
5.7 The Company will endeavor to arrange for the qualification of the Certificates for sale under the laws
of such jurisdictions as you may reasonably designate and will maintain such qualification in effect so long as
required for the initial distribution of the Certificates; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action
that would subject it to general or unlimited service of process in any jurisdiction where it is not now so
subject.
5.8 If the transactions contemplated by this Agreement are consummated, the Company or Residential Funding
will pay or cause to be paid all expenses incident to the performance of the obligations of the Company and
Residential Funding under this Agreement, and will reimburse you for any reasonable expenses (including
reasonable fees and disbursements of counsel) reasonably incurred by you in connection with qualification of the
Certificates for sale and determination of their eligibility for investment under the laws of such jurisdictions
as you have reasonably requested pursuant to Section 5.7 above and the printing of memoranda relating thereto,
for any fees charged by investment rating agencies for the rating of the Certificates, and for expenses incurred
in distributing the Prospectus (including any amendments and supplements thereto) to the Underwriter. Except as
herein provided, you shall be responsible for paying all costs and expenses incurred by you, including the fees
and disbursements of your counsel, in connection with the purchase and sale of the Certificates.
5.9 If, during the period after the Closing Date in which a prospectus relating to the Certificates is
required to be delivered under the Act, the Company receives notice that a stop order suspending the
effectiveness of the Registration Statement or preventing the offer and sale of the Certificates is in effect,
the Company will advise you of the issuance of such stop order.
5.10 The Company shall file any Issuer Free Writing Prospectus, and any Underwriter Prepared Issuer FWP
provided to it by the Underwriter under Section 4.4, not later than the date of first use thereof, except that:
(a) any Issuer Free Writing Prospectus or Underwriter Prepared Issuer FWP or portion thereof otherwise
required to be filed that contains only (1) a description of the final terms of the Certificates may be
filed by the Company within two days of the later of the date such final terms have been established for
all classes of Certificates and the date of first use, and (2) a description of the terms of the
Certificates that does not reflect the final terms after they have been established for all classes of
all Certificates is not required to be filed; and
(b) if the Issuer Free Writing Prospectus or Underwriter Prepared Issuer FWP includes only information of a
type included in the definition of ABS Informational and Computational Materials, the Company shall file
the same within the later of two business days after the Underwriter first provides this information to
investors and the date upon which the Company is required to file the Prospectus Supplement with the
Commission pursuant to Rule 424(b)(3) of the Act.
provided further, that prior to the filing of any Underwriter Prepared Issuer FWP by the Company, the Underwriter
must comply with its obligations pursuant to Section 4.4 and that the Company shall not be required to file any
Free Writing Prospectus to the extent such Free Writing Prospectus includes information in a Free Writing
Prospectus, Preliminary Prospectus or Prospectus previously filed with the Commission or that does not contain
substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
5.11 The Underwriter shall file any Underwriter Free Writing Prospectus that has been distributed by the
Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination within the later of
two business days after the Underwriter first provides this information to investors and the date upon which the
Company is required to file the Prospectus Supplement with the Commission pursuant to Rule 424(b)(3) of the Act
or otherwise as required under Rule 433 of the Act; provided, however, that the Underwriter shall not be required
to file any Underwriter Free Writing Prospectus to the extent such Underwriter Free Writing Prospectus includes
information in a Free Writing Prospectus, Preliminary Prospectus or Prospectus previously filed with the
Commission or that does not contain substantive changes from or additions to a Free Writing Prospectus previously
filed with the Commission.
5.12 The Company acknowledges and agrees that the Underwriter is acting solely in the capacity of an arm's
length contractual counterparty to the Company with respect to the offering of securities contemplated hereby
(including in connection with determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company or any other person. Additionally, the Underwriter is not advising the
company or any other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible
for making its own independent investigation and appraisal of the transactions contemplated hereby, and the
Underwriter shall have no responsibility or liability to the Company with respect thereto. Any review by the
Underwriter of the Company, the transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriter and shall not be on behalf of the Company.
6. Conditions to the Obligations of the Underwriter. The Underwriter's obligation to purchase the
Certificates shall be subject to the following conditions:
6.1 No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no
proceedings for that purpose shall be pending or, to the knowledge of the Company, threatened by the Commission;
and the Prospectus Supplement shall have been filed or transmitted for filing by means reasonably calculated to
result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2 Since December 1, 2005 there shall have been no material adverse change (not in the ordinary course of
business) in the condition of the Company or Residential Funding.
6.3 The Company shall have delivered to you a certificate, dated the Closing Date, of the President, a
Senior Vice President or a Vice President of the Company to the effect that the signer of such certificate has
examined this Agreement, the Approved Offering Materials, the Prospectus, the Pooling and Servicing Agreement and
various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(a) the representations and warranties of the Company in this Agreement and in the Pooling and Servicing
Agreement are true and correct in all material respects; and
(b) the Company has, in all material respects, complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
6.4 Residential Funding shall have delivered to you a certificate, dated the Closing Date, of the President,
a Managing Director, a Director or an Associate of Residential Funding to the effect that the signer of such
certificate has examined the Pooling and Servicing Agreement and this Agreement and that, to the best of his or
her knowledge after reasonable investigation, the representations and warranties of Residential Funding contained
in the Pooling and Servicing Agreement and in this Agreement are true and correct in all material respects.
6.5 You shall have received the opinions of [Xxxxx, Xxxxx, Xxxx ® Maw LLP] [Xxxxxx, Xxxxxxxxxx ® Xxxxxxxxx
LLP], special counsel for the Company and Residential Funding, dated the Closing Date and substantially to the
effect set forth in Exhibits A-1, A-2 and A-3, and the opinion of [_________], associate counsel for the Company
and Residential Funding, dated the Closing Date and substantially to the effect set forth in Exhibit B.
6.6 You shall have received a negative assurance letter regarding the Preliminary Prospectus and Prospectus
from [Xxxxx, Brown, Xxxx ® Maw LLP] [Xxxxxx, Xxxxxxxxxx ® Xxxxxxxxx LLP], special counsel for the Company and
Residential Funding, in form satisfactory to you.
6.7 The Underwriter shall have received from [________], certified public accountants, (a) a letter dated
the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter's counsel, to the
effect that they have performed certain specified procedures, all of which have been agreed to by the
Underwriter, as a result of which they determined that certain information of an accounting, financial or
statistical nature set forth in the Prospectus Supplement under the captions "Description of the Mortgage Pool",
"Description of the Agreements", "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(e).
6.8 The Class A Certificates shall have been rated "AAA" by [Fitch Ratings, ("Fitch")] and AAA by [Standard
® Poor's ("S®P")].
6.9 You shall have received the opinion of [____________], counsel to the Trustee, dated the Closing Date,
substantially to the effect set forth in Exhibit C.
6.10 [You shall have received the opinion of Faegre ® Xxxxxx, LLP, special Minnesota tax counsel for the
Company, dated the Closing Date, substantially to the effect set forth in Exhibit D.]
6.11 You shall have received from [_________], associate counsel to the Company, a reliance letter with
respect to any opinions delivered to the rating agencies, or you shall have been listed as an addressee on any
such opinions.
The Company will furnish you with conformed copies of the above opinions, certificates, letters and documents as
you reasonably request.
7. Indemnification and Contribution.
7.1 The Company and Residential Funding, jointly and severally, agree to indemnify and hold harmless you and
each person, if any, who controls you within the meaning of either Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and against any and all losses, claims,
damages and liabilities (i) caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Certificates as originally filed or in any
amendment thereof or other filing incorporated by reference therein, or in the Approved Offering Materials or the
Prospectus or incorporated by reference therein (if used within the period set forth in Section 5.3 hereof and as
amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by
any omission or alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were made, not misleading, or (ii)
caused by any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free
Writing Prospectus, or any omission or alleged omission to state therein a material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading, or (iii) caused by
any untrue statement of a material fact or alleged untrue statement of a material fact contained in (x) any
Underwriter Prepared Issuer FWP or any Underwriter Free Writing Prospectus or any omission or alleged omission to
state therein a material fact necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading, that in either case was caused by any error or omission in any Pool Information
or (y) any information accurately extracted from the Preliminary Prospectus Supplement or any Issuer Free Writing
Prospectus and included in any Underwriter Prepared Issuer FWP or Underwriter Free Writing Prospectus; except
insofar as such losses, claims, damages, or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon any information with respect to which the Underwriter has agreed
to indemnify the Company pursuant to clause (i) of Section 7.2; provided, however, that none of the Company,
Residential Funding or you will be liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein relating to the Excluded Information.
7.2 You agree to indemnify and hold harmless the Company, Residential Funding, their respective directors or
officers and any person controlling the Company or Residential Funding within the meaning of either Section 15 of
the Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities
(i) caused by any untrue statement or alleged untrue statement of material fact contained in the Underwriter
Information, or any omission or alleged omission to state therein any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under which they were made, not
misleading, (ii) caused by any untrue statement or alleged untrue statement of material fact contained in any
Underwriter Free Writing Prospectus, or any omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the circumstances under which they were made, not
misleading, (iii) caused by any untrue statement or alleged untrue statement of material fact contained in any
Underwriter Prepared Issuer FWP (except for any information accurately extracted from the Preliminary Prospectus
Supplement or any Issuer Free Writing Prospectus and included in such Underwriter Prepared Issuer FWP), or any
omission or alleged omission to state therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, (iv) caused by any Underwriter Prepared Issuer
FWP for which the conditions set forth in Section 4.4(e) above are not satisfied with respect to the prior
consent by the Company, and (v) resulting from your failure to comply with Section 4.3 or failure to file any
Underwriter Free Writing Prospectus required to be filed in accordance with Section 5.11; provided, however, that
the indemnification set forth in clauses (ii) and (iii) of this Section 7.2 shall not apply to the extent of any
error or omission in any Underwriter Prepared Issuer FWP or any Underwriter Free Writing Prospectus that was
caused by any error or omission in any Pool Information unless you have failed to comply with Section 4.3 and
such error was corrected in the Approved Offering Materials; provided, further, that none of the Company,
Residential Funding or you will be liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein relating to the Excluded Information. In addition, you agree to indemnify and hold
harmless the Company, Residential Funding, their respective directors or officers and any person controlling the
Company or Residential Funding against any and all losses, claims, damages, liabilities and expenses (including,
without limitation, reasonable attorneys' fees) caused by, resulting from, relating to, or based upon any legend
regarding original issue discount on any Certificate resulting from incorrect information provided by the
Underwriter in the certificates described in Section 4.5 hereof.
7.3 In case any proceeding (including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to either Section 7.1 or Section 7.2, such person
(the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain
its own counsel, but the reasonable fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by you, in the case of parties indemnified pursuant to Section 7.1 and
by the Company or Residential Funding, in the case of parties indemnified pursuant to Section 7.2. The
indemnifying party may, at its option, at any time upon written notice to the indemnified party, assume the
defense of any proceeding and may designate counsel reasonably satisfactory to the indemnified party in
connection therewith provided that the counsel so designated would have no actual or potential conflict of
interest in connection with such representation. Unless it shall assume the defense of any proceeding the
indemnifying party shall not be liable for any settlement of any proceeding, effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or liability by reason of such
settlement or judgment. If the indemnifying party assumes the defense of any proceeding, it shall be entitled to
settle such proceeding with the consent of the indemnified party or, if such settlement provides for release of
the indemnified party in connection with all matters relating to the proceeding which have been asserted against
the indemnified party in such proceeding by the other parties to such settlement, without the consent of the
indemnified party.
7.4 If the indemnification provided for in this Section 7 is unavailable to an indemnified party under
Section 7.1 or Section 7.2 hereof or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or
liabilities, in such proportion as is appropriate to reflect not only the relative benefits received by the
Company and Residential Funding on the one hand and the Underwriter on the other from the offering of the
Certificates but also the relative fault of the Company or Residential Funding on the one hand and of the
Underwriter on the other in connection with the statements or omissions which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the
Company and Residential Funding on the one hand and of the Underwriter on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the Company or by the
Underwriter, and the parties' relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
7.5 The Company, Residential Funding and the Underwriter agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of
allocation which does not take account of the considerations referred to in Section 7.4 above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in this
Section 7 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any such action or
claim except where the indemnified party is required to bear such expenses pursuant to Section 7.4; which
expenses the indemnifying party shall pay as and when incurred, at the request of the indemnified party, to the
extent that the indemnifying party believes that it will be ultimately obligated to pay such expenses. In the
event that any expenses so paid by the indemnifying party are subsequently determined to not be required to be
borne by the indemnifying party hereunder, the party which received such payment shall promptly refund the amount
so paid to the party which made such payment. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7.6 The indemnity and contribution agreements contained in this Section 7 and the representations and
warranties of the Company and Residential Funding in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any investigation made by the Underwriter or on
behalf of the Underwriter or any person controlling the Underwriter or by or on behalf of the Company or
Residential Funding and their respective directors or officers or any person controlling the Company or
Residential Funding and (iii) acceptance of and payment for any of the Certificates.
8. Termination. This Agreement shall be subject to termination by notice given to the Company and
Residential Funding, if the sale of the Certificates provided for herein is not consummated because of any
failure or refusal on the part of the Company or Residential Funding to comply with the terms or to fulfill any
of the conditions of this Agreement, or if for any reason the Company or Residential Funding shall be unable to
perform their respective obligations under this Agreement. If you terminate this Agreement in accordance with
this Section 8, the Company or Residential Funding will reimburse you for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been reasonably incurred by the
Underwriter in connection with the proposed purchase and sale of the Certificates.
9. Certain Representations and Indemnities to Survive. The respective agreements, representations,
warranties, indemnities and other statements of the Company, Residential Funding or the officers of any of the
Company, Residential Funding, and you set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as to the results thereof, made by you or on your
behalf or made by or on behalf of the Company or Residential Funding or any of their respective officers,
directors or controlling persons, and will survive delivery of and payment for the Certificates.
10. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to
the Underwriter will be mailed, delivered or telegraphed and confirmed to you at [_______________], or if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it at Residential Asset Securities
Corporation, 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: President; or,
if sent to Residential Funding will be mailed, delivered or telegraphed and confirmed to it at Residential
Funding Corporation, 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
President.
11. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and
their respective successors and the officers and directors and controlling persons referred to in Section 7
hereof, and their successors and assigns, and no other person will have any right or obligation hereunder.
12. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the
State of New York.
13. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, which taken together shall constitute one and the same instrument.
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 ASSET SECURITIES CORPORATION
By:___________________________________________________________
Name:
Title:
RESIDENTIAL FUNDING CORPORATION
By:___________________________________________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
[UNDERWRITER]
By: ____________________________________________
Name:
Title:
EXHIBIT A-1
[Mayer, Brown, Xxxx ® Maw LLP] [Xxxxxx, Xxxxxxxxxx ® Xxxxxxxxx LLP] Opinion
Main Closing Opinion (Underwriting Agreement)
EXHIBIT A-2
[Mayer, Brown, Xxxx ® Maw LLP
Negative Assurance Letter (Underwriting Agreement)]
EXHIBIT A-3
[Mayer, Brown, Xxxx ® Maw LLP Opinion
Tax Disclosure Letter (Underwriting Agreement)]
EXHIBIT B
In-House Opinion
Main Closing Opinion (Underwriting Agreement)
EXHIBIT C
Opinion of [_________]
Counsel to Trustee
[EXHIBIT D]
[Opinion of Faegre ® Xxxxxx, LLP
Special Counsel to the Company]
EXHIBIT E
EXCLUDED INFORMATION
EXHIBIT F
UNDERWRITER INFORMATION
EXHIBIT G
UNDERWRITER'S CERTIFICATE
