EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT (Iterative)
RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
Home Equity Loan Pass-Through Certificates, Series 20[__]-[__]
Initial Principal Amount Class Initial Pass-Through Rate
------------------------ ----- -------------------------
$[____________] Class I-A-1 Certificates [_____]%
$[____________] Class II-A-1 Certificates [_____]%
$[____________] Class II-A-2 Certificates [_____]%
$[____________] Class II-A-3 Certificates [_____]%
$[____________] Class II-A-4 Certificates [_____]%
$[____________] Class II-A-5 Certificates [_____]%
$[____________] Class II-A-6 Certificates [_____]%
$[____________] Class II-A-7 Certificates [_____]%
$[____________] Class III-A-1 Certificates [_____]%
$[____________] Class III-A-2 Certificates [Variable Rate]
[Notional] Class III-A-3 Certificates [Variable Rate]
$[____________] Class III-A-4 Certificates [_____]%
$[____________] Class III-A-5 Certificates [_____]%
$[____________] Class III-A-6 Certificates [_____]%
$[____________] Class III-A-7 Certificates [_____]%
$[____________] Class III-A-8 Certificates [_____]%
$[____________] Class III-A-9 Certificates [_____]%
$[____________] Class III-A-10 Certificates [_____]%
$[____________] Class I-M-1 Certificates [_____]%
$[____________] Class I-M-2 Certificates [_____]%
$[____________] Class I-M-3 Certificates [_____]%
$[____________] Class II-M-1 Certificates [_____]%
$[____________] Class II-M-2 Certificates [_____]%
$[____________] Class II-M-3 Certificates [_____]%
$[____________] Class III-M-1 Certificates [_____]%
$[____________] Class III-M-2 Certificates [_____]%
$[____________] Class III-M-3 Certificates [_____]%
$[____________] Class R-I Certificates [_____]%
$[____________] Class R-II Certificates [_____]%
$[____________] Class R-III Certificates [_____]%
$[____________] Class R-IV Certificates [_____]%
$[____________] Class R-V Certificates [_____]%
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 Equity Loan Pass-Through Certificates, 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, Class III-M-3, Class
R-I, Class R-II, Class R-III, Class R-IV and Class R-V Certificates
(collectively, the "Certificates"), other than a de minimis portion of each of
the Class R-I, Class R-II, Class R-III, Class R-IV and Class R-V Certificates
(the "Class R Certificates"), having the aggregate principal amounts and
Pass-Through Rates set forth above. The Certificates, together with the Class
I-A-V, Class II-A-V, Class III-A-V, Class I-A-P, Class II-A-P, Class III-A-P,
Class I-B-1, Class I-B-2, Class I-B-3, Class II-B-1, Class II-B-2, Class II-B-3,
Class III-B-1, Class III-B-2 and Class III-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 and second 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 each of the Class R Certificates will not be sold hereunder
and will be held by Residential Funding Company, LLC ("Residential Funding").
The Certificates will be issued pursuant to a pooling and servicing
agreement, dated as of [__________________] 1, 20[__] (the "Pooling and
Servicing Agreement"), among the Company, as depositor, 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:
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(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No.
333-[________]) on Form S-3 for the registration under the Securities Act
of 1933, as amended (the "Act"), of Home Equity Loan Pass-Through
Certificates (issuable in series), including the Certificates, which
registration statement has become effective, and a copy of which, as
amended to the date hereof, has heretofore been delivered to you. The
Company proposes to file with the Commission pursuant to Rule 424(b) under
the rules and regulations of the Commission under the Act (the "1933 Act
Regulations") a prospectus supplement dated [_______________ ___], 20[___]
(the "Prospectus Supplement"), to the prospectus dated [_______________
___], 20[___] (the "Base Prospectus"), relating to the Certificates and
the method of distribution thereof. Such registration statement (No.
333-[______]) including exhibits thereto and any information incorporated
therein by reference, as amended at the date hereof, is hereinafter called
the "Registration Statement"; and the Base Prospectus and the Prospectus
Supplement and any information incorporated therein by reference, together
with any amendment thereof or supplement thereto authorized by the Company
on or prior to the Closing Date (as defined herein) for use in connection
with the offering of the Certificates, are hereinafter called the
"Prospectus."
(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 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
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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 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 Certificates 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 Certificates 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
Certificates, (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. With respect
to any class of Certificates, other than the Class II-A-4, Class
II-A-7, Class III-A-8 and Class III-A-10 Certificates, 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.
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(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 Certificates 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
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.
(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 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 Certificates, (i) the Pass-Through
Rate if a fixed rate, or the formula for determining the
Pass-Through 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 Certificates, (iii)
the terms and
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the provider of any surety bond, financial guaranty insurance
policy, or other insurance policy regarding any class of the
Certificates not known to the Company when the Approved Offering
Materials were prepared, (iv) the allocation to each class of
Certificates of the aggregate amount of the cashflow payable among
the Certificates collectively, and (v) the allocation to each class
of Certificates of the aggregate amount of any Realized Losses
allocable to the Certificates 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 Certificates or of the offering of the Certificates after the
final terms have been established for all classes of Senior
Certificates.
(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.
(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.
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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 (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 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
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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 Certificates 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
Certificates 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 Certificates to the public in that Relevant Member
State prior to the publication of a prospectus in relation to the
Certificates 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
Certificates 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
Certificates to the public" in relation to any Certificates 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 Certificates to be offered so as
to enable an investor to decide to purchase or subscribe the Certificates, 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 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 each 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), plus accrued interest. 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 [counsel to Company] at 10:00 a.m., New York City
time, on
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[_______________ ___], 20[___] or such later date as you shall designate, which
date and time may be postponed by agreement between you and the Company (such
date and time of delivery and payment for the Certificates being herein called
the "Closing Date"). Delivery of the 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, Class III-M-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
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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.
(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
11
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 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 any Issuer Free Writing Prospectus and 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
12
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 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 Certificates 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 Certificates" in the term sheet supplement included
in the Approved Offering Materials and the description of the
characteristics of the Certificates contained in such Underwriter
13
Free Writing Prospectus or any Underwriter Prepared Issuer FWP shall
not be inconsistent with the description of the Certificates 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 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
14
(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
15
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 Certificates, 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 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 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.
16
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:
17
(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 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 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.
18
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 [_______________] 1, 20[___] there shall have been no
material adverse change (not in the ordinary course of business) in the
condition of the Company or Residential Funding.
6.3 The Company shall have delivered to you a certificate, dated the
Closing Date, of the President, a Senior Vice President or a Vice President of
the Company to the effect that the signer of such certificate has examined this
Agreement, the Approved Offering Materials, the Prospectus, the Pooling and
Servicing Agreement and various other closing documents, and that, to the best
of his or her knowledge after reasonable investigation:
(a) the representations and warranties of the Company in this
Agreement and in the Pooling and Servicing Agreement are true and correct
in all material respects; and
(b) the Company has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date.
6.4 Residential Funding shall have delivered to you a certificate,
dated the Closing Date, of the President, a Managing Director, a Director or an
Associate of Residential Funding to the effect that the signer of such
certificate has examined the Pooling and Servicing Agreement and this Agreement
and that, to the best of his or her knowledge after reasonable investigation,
the representations and warranties of Residential Funding contained in the
Pooling and Servicing Agreement and in this Agreement are true and correct in
all material respects.
6.5 You shall have received the opinions of [_________________],
special counsel for the Company and Residential Funding, dated the Closing Date
and substantially to the effect set forth in Exhibits X-0, X-0 xxx X-0, and the
opinion of [_________________], associate counsel for the Company and
Residential Funding, dated the Closing Date and substantially to the effect set
forth in Exhibit B.
6.6 You shall have received a negative assurance letter regarding
the 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 Mortgage Pool", "Pooling and Servicing Agreement",
"Description of the Certificates" and
19
"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 and Class R-I Certificates shall have been rated
["____"] by [Xxxxx'x Investors Service, Inc. ("Moody's")] and ["____"] by [Fitch
Ratings ("Fitch")]. The Class II-A, Class III-A, Class R-II, Class R-III, Class
R-IV and Class R-V Certificates 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
Certificates, ["____"] 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 Certificates shall have been rated
["____"] by Fitch. The Class I-M-2, Class II-M-2 and Class III-M-2 Certificates
shall have been rated ["____"] by Fitch. The Class I-M-3, Class II-M-3 and Class
III-M-3 Certificates 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.
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 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
20
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 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 REMIC Administrator or the determination that a
Certificate 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
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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.
22
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 [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:
23
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
