EXHIBIT 1.2
Form of Underwriting Agreement (Non-Iterative)
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
Mortgage Pass-Through Certificates, Series 20[__]-[____]
Initial Principal Amount Class Initial Pass-Through Rate
------------------------ ----- -------------------------
$[____] Class A-1 Certificates [___]%
$[____] Class A-2 Certificates [___]%
$[____] Class A-3 Certificates [___]%
$[____] Class R Certificates [___]%
UNDERWRITING AGREEMENT
[________], 20[__]
[Name of Underwriter,]
[as representative of the Underwriters ("Representative")]
[Address of Underwriter]
Ladies and Gentlemen:
Residential Funding Mortgage Securities I, Inc., a Delaware corporation
(the "Company"), proposes to sell to you (also referred to herein as the
"Underwriter") Mortgage Pass-Through Certificates, Series 20[__]-[____], Class
A-1, Class A-2, Class A-3, and Class R Certificates (collectively, the
"Certificates"), other than a de minimis portion of the Class R Certificates,
having the aggregate principal amounts and Pass-Through Rates set forth above.
The Certificates, together with the Class A-V, Class A-P, Class M-1, Class M-2,
Class M-3, Class B-1, Class B-2 and Class B-3 Certificates of the same series,
will evidence the entire beneficial interest in the Trust Fund (as defined in
the Pooling and Servicing Agreement referred to below), consisting primarily of
a pool (the "Pool") of conventional, fixed-rate, one- to four-family residential
first lien mortgage loans (the "Mortgage Loans") as described in the Prospectus
Supplement (as hereinafter defined) to be sold by the Company. A de minimis
portion of the Class R Certificates will not be sold hereunder and will be held
by Residential Funding Company, LLC ("Residential Funding").
The Certificates will be issued pursuant to a series supplement (the
"Series Supplement"), dated as of [_____] 1, 20[__] (the "Cut-off Date"), to the
standard terms of a pooling and servicing agreement, dated as of [_____] 1,
20[__] (the "Standard Terms", and together with the Series Supplement, the
"Pooling and Servicing Agreement"), among the Company, as seller, Residential
Funding, as master servicer, and [__________], as trustee (the "Trustee"). The
Certificates are described more fully in the Base Prospectus and the Prospectus
Supplement (each as hereinafter defined), which the Company has furnished to
you.
1. Representations, Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with you
that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-[_____])
on Form S-3 for the registration under the Securities Act of 1933, as
amended (the "Act"), of Mortgage Pass-Through Certificates (issuable in
series), including the Certificates, which registration statement has
become effective, and a copy of which, as amended to the date hereof, has
heretofore been delivered to you. The Company proposes to file with the
Commission pursuant to Rule 424(b) under the rules and regulations of the
Commission under the Act (the "1933 Act Regulations") a prospectus
supplement 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." 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
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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 with
respect to the Certificates it underwrites.
(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
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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 applicable Underwriter to include in a Free Writing
Prospectus.
(ix) "Pool Information" means with respect to any Free
Writing Prospectus, the information with respect to the
characteristics of the Mortgage Loans and administrative and
servicing fees, as provided by or on behalf of the Company or
Residential Funding to each applicable Underwriter at the time most
recent to the date of such Free Writing Prospectus.
(x) "Underwriter Derived Information" shall refer to
information of the type described in clause (5) of footnote 271 of
Commission Release No. 33-8591 (Securities Offering Reform) when
prepared by any 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 any
Underwriter other than any Underwriter Prepared Issuer FWP,
including any Permitted Additional Materials.
(xii) "Underwriter Prepared Issuer FWP" shall mean any
Free Writing Prospectus prepared by or on behalf of any Underwriter
that contains any Issuer Information, including any Free Writing
Prospectus or portion thereof prepared by or on behalf of any
Underwriter that contains only a description of the final terms of
the 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.
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(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
the Underwriter 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
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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 prepared by
the Underwriter is 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
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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 the Company] at 10:00 a.m., New York
City time, on [_________], 20[__] or such later date as you shall designate,
which date and time may be postponed by agreement between you and the Company
(such date and time of delivery and payment for the Certificates being herein
called the "Closing Date"). Delivery of the Series 20[__]-[____], Class A-1,
Class A-2 and Class A-3 Certificates shall be made to you through the Depository
Trust Company ("DTC") (such Certificates, the "DTC Registered Certificates"),
and delivery of the Class R Certificates (the "Definitive Certificates") shall
be made in registered, certificated form, in each case against payment by you of
the purchase price thereof to or upon the order of the Company by wire transfer
in immediately available funds. The Definitive Certificates shall be registered
in such names and in such denominations as you may request not less than two
business days in advance of the Closing Date. The Company agrees to have the
Definitive Certificates available for inspection, checking and packaging by you
in New York, New York not later than 9:00 a.m. on the Closing Date.
4. Offering by Underwriter.
4.1 It is understood that you propose to offer the Certificates for
sale to the public as set forth in the Prospectus and you agree that all such
offers and sales by you shall be made in compliance with all applicable laws and
regulations. Prior to the date of the first Contract of Sale made based on the
Approved Offering Materials, you have not pledged, sold, disposed of or
otherwise transferred any Certificate, Mortgage Loans or any interest in any
Certificate.
4.2 It is understood that you will solicit offers to purchase the
Certificates as follows:
(a) Prior to the time you have received the Approved Offering
Materials you may, in compliance with the provisions of this Agreement,
solicit offers to purchase Certificates; provided, that you shall not
accept any such offer to purchase a Certificate or any interest in any
Certificate or Mortgage Loan or otherwise enter into any Contract of Sale
for any Certificate, any interest in any Certificate or any Mortgage Loan
prior to your conveyance of Approved Offering Materials to the investor.
(b) any Written Communication relating to the Certificates
made by an Underwriter in compliance with the terms of this Agreement
prior to the time such Underwriter has entered into a Contract of Sale for
Certificates with the recipient shall prominently set forth the following
statements (or a substantially similar statements approved by the
Company):
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
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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 issuing entity 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 issuing entity and
the availability of such Certificates when, as and if issued by the
issuing entity. 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 issuing entity does not
deliver such Certificates, the underwriter will notify you, and
neither the issuing entity nor any underwriter will have any
obligation to you to deliver all or any portion of the Certificates
which you have committed to purchase, and none of the issuing entity
nor any underwriter will be liable for any costs or damages
whatsoever arising from or related to such non-delivery.
4.3 It is understood that 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
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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 prepared by the Underwriter and
shall not be subject to the required consent of the Company set forth in
the third sentence in Section 4.4(e). In connection therewith, 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) prepared by the Underwriter 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 ▇▇▇▇▇ ON THE SEC WEB SITE AT ▇▇▇.▇▇▇.▇▇▇.
ALTERNATIVELY, THE DEPOSITOR, ANY UNDERWRITER OR ANY DEALER
PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE
PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY CALLING TOLL-FREE
1-8[XX-XXX-XXXX] OR VIA EMAIL AT ______________.
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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 Underwriter or the Company, as applicable (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 prepared by the Underwriter, other than any Pool
Information therein and any information accurately extracted from the
Preliminary Prospectus Supplement or any Issuer Free Writing Prospectus
and included in such Underwriter Prepared Issuer FWP, is accurate except
as to such matters that are not deemed by the Company and the Underwriter
to be material. The foregoing letter shall be at the expense of the
applicable Underwriter.
(g) None of the information in any Free Writing Prospectus may
conflict with the information then contained in the Registration Statement
or any prospectus or prospectus supplement that is a part thereof.
(h) The Company shall not be obligated to file any Issuer Free
Writing Prospectuses that have been determined to contain any material
error or omission unless such Issuer Free Writing Prospectus has been
provided to a prospective investor, in which case, 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
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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
11
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 by the Underwriter the notice required by Rule 173
informing the investor that the sale was made pursuant to the Registration
Statement and that the investor may request a copy of the Prospectus from the
Underwriter; (ii) if a paper copy of the Prospectus is requested by a person who
receives a confirmation, the Underwriter shall deliver a printed or paper copy
of such Prospectus; and (iii) if an electronic copy of the Prospectus is
delivered by the Underwriter for any purpose, such copy shall be the same
electronic file containing the Prospectus in the identical form transmitted
electronically to the Underwriter by or on behalf of the Company specifically
for use by the Underwriter pursuant to this Section 4.6; for example, if the
Prospectus is delivered to the Underwriter by or on behalf of the Company in a
single electronic file in pdf format, then the Underwriter will deliver the
electronic copy of the Prospectus in the same single electronic file in pdf
format. The Underwriter further agrees that (i) if it delivers to an investor
the Prospectus in pdf format, upon the Underwriter's receipt of a request from
the investor within the period for which delivery of the Prospectus is required,
the Underwriter will promptly deliver or cause to be delivered to the investor,
without charge, a paper copy of the Prospectus and (ii) it will provide to the
Company any Underwriter Prepared Issuer FWP, or portions thereof, which the
Company is required to file with the Commission in electronic format and will
use reasonable efforts to provide to the Company such Underwriter Prepared
Issuer FWP, or portions thereof, in either Microsoft Word(R) or Microsoft
Excel(R) format and not in pdf format, 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.
12
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) made or prepared by the
Company or the Underwriter contains an untrue statement of material fact or
omits to state a material fact necessary to make the statements, in light of the
circumstances under which they were made, not misleading at the time that a
Contract of Sale was entered into, either the Company or 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 based
on such written communication or oral statement, and such information shall
provide any such person with the following:
(a) Adequate disclosure of the contractual arrangement;
(b) Adequate disclosure of the person's rights under the
existing Contract of Sale at the time termination is sought;
(c) Adequate disclosure of the new information that is
necessary to correct the misstatements or omissions in the information
given at the time of the original Contract of Sale; and
(d) A meaningful ability to elect to terminate or not
terminate the prior Contract of Sale and to elect to enter into or not
enter into a new Contract of Sale.
Any costs incurred to the investor in connection with any such termination or
reformation shall be subject to Sections 7.1 and 7.2, as applicable.
5.5 The Company will furnish to 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 by you, 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.
13
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
14
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 prepared by the Underwriter to the extent such Free Writing
Prospectus includes information in a Free Writing Prospectus, Preliminary
Prospectus or Prospectus previously filed with the Commission or that does not
contain substantive changes from or additions to a Free Writing Prospectus
previously filed with the Commission.
5.11 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 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 [____________] 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.
15
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 ▇-▇, ▇-▇ ▇▇▇ ▇-▇, and the
opinion of [__________], associate counsel for the Company and Residential
Funding, dated the Closing Date and substantially to the effect set forth in
Exhibit B.
6.6 You shall have received a negative assurance letter regarding
the Preliminary Prospectus and Prospectus from [___________], special counsel
for the Company and Residential Funding, in form satisfactory to you.
6.7 The Underwriter shall have received from [___________],
certified public accountants, (a) a letter dated the date hereof and
satisfactory in form and substance to the Underwriter and the Underwriter's
counsel, to the effect that they have performed certain specified procedures,
all of which have been agreed to by the Underwriter, as a result of which they
determined that certain information of an accounting, financial or statistical
nature set forth in the Prospectus Supplement under the captions "Description of
the Mortgage Pool", "Pooling and Servicing Agreement", "Description of the
Certificates" and "Certain Yield and Prepayment Considerations" agrees with the
records of the Company and Residential Funding excluding any questions of legal
interpretation and (b) the letter prepared pursuant to Section 4.4(e).
6.8 The Class A Certificates shall have been rated "[____]" by
[Fitch Ratings, ("Fitch")] and [____] by [Standard & Poor's ("S&P")].
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.
16
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 as it relates to the Underwriter, or any omission or alleged
omission to state therein any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, (ii) caused by any untrue statement or
alleged untrue statement of material fact contained in any Underwriter Free
Writing
17
Prospectus prepared by the Underwriter, or any omission or alleged omission to
state therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, (iii) caused by
any untrue statement or alleged untrue statement of material fact contained in
any Underwriter Prepared Issuer FWP prepared by the Underwriter (except for any
information accurately extracted from the Preliminary Prospectus Supplement or
any Issuer Free Writing Prospectus and included in such Underwriter Prepared
Issuer FWP), or any omission or alleged omission to state therein a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, (iv) caused by any Underwriter
Prepared Issuer FWP prepared by the Underwriter 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 prepared by the
Underwriter 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 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 original issue discount, which
determination resulted from incorrect information provided by the Underwriter in
the certificate 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,
18
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
related Underwriter on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault of the Company and
Residential Funding on the one hand and of the related 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
19
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, the Underwriter or the officers of any of the
Company, Residential Funding, and the Underwriter set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by the Underwriter
or on its 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 the Underwriter c/o the Representative at
[Underwriter's Name], [Underwriter's Address], or if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at Residential Funding
Mortgage Securities I, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President; or, if sent to Residential
Funding will be mailed, delivered or telegraphed and confirmed to it at
Residential Funding Company, LLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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]
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, Residential Funding and you.
Very truly yours,
RESIDENTIAL FUNDING MORTGAGE
SECURITIES I, INC.
By:___________________________________
Name:
Title:
RESIDENTIAL FUNDING 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)
▇-▇
▇▇▇▇▇▇▇ ▇-▇
Counsel to Company
Negative Assurance Letter (Underwriting Agreement)
▇-▇
▇▇▇▇▇▇▇ ▇-▇
Counsel to Company Opinion
Tax Disclosure Letter (Underwriting Agreement)
A-3
EXHIBIT B
In-House Opinion
Main Closing Opinion (Underwriting Agreement)
B-1
EXHIBIT C
Opinion of [____________]
Counsel to Trustee
C-1
EXHIBIT D
Opinion of [____________]
Special Counsel to the Company
D-1
EXHIBIT E
EXCLUDED INFORMATION
E-1
EXHIBIT F
UNDERWRITER INFORMATION
F-1
EXHIBIT G
UNDERWRITER'S CERTIFICATE
G-1