EXHIBIT 1.3
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
Asset-Backed Notes, Series [Deal Name]
Initial Principal Amount Class Initial Pass-Through Rate
$[____] Class A-1 Notes [___]%
$[____] Class A-2 Notes [___]%
$[____] Class A-3 Notes [___]%
FORM OF UNDERWRITING AGREEMENT (NOTES/ITERATIVE)
[___________] [__], 20[__]
[Underwriter]
Ladies and Gentlemen:
Residential Asset Mortgage Products, Inc., a Delaware corporation (the
"Company"), proposes to sell to you (also referred to herein as the
"Underwriter") Asset-Backed Notes, Series [Deal Name], Class A-1, Class A-2,
Class A-3 Notes (collectively, the "Notes"). The Collateral referred in the
Indenture (as defined below), consists primarily of a pool (the "Pool") of
conventional, fixed-rate, one- to four-family residential first lien and second
lien mortgage loans (the "Mortgage Loans") as described in the Prospectus
Supplement (as hereinafter defined) to be sold by the Company.
The Notes will be issued pursuant to indenture dated as of [________]
[__], 200[__] (the "Indenture"), among the Company, as seller, Residential
Funding, as master servicer, and [_________], as trustee (the "Trustee"). The
Notes are described more fully in the Base Prospectus and the Prospectus
Supplement (each as hereinafter defined), which the Company has furnished to
you.
1. Representations, Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with you
that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No.
333-[_____]) on Form S-3 for the registration under the Securities
Act of 1933, as amended (the "Act"), of Asset-Backed Notes (issuable
in series), including the Notes, which registration statement has
become effective, and a copy of which, as amended to the date
hereof, has heretofore been delivered to you. The Company proposes
to file with the Commission pursuant to Rule 424(b) under the rules
and regulations of the Commission under the Act (the "1933 Act
Regulations") a prospectus supplement (the "Prospectus Supplement"),
to the prospectus dated [________] [__], 200[__] (the "Base
Prospectus"), relating to the Notes and the method of distribution
thereof. Such registration statement (No. 333-[________]) including
exhibits thereto and any information incorporated therein by
reference, as
amended at the date hereof, is hereinafter called the "Registration
Statement"; and the Base Prospectus and the Prospectus Supplement
and any information incorporated therein by reference, together with
any amendment thereof or supplement thereto authorized by the
Company on or prior to the Closing Date (as defined herein) for use
in connection with the offering of the Notes, are hereinafter called
the "Prospectus."
(b) The Registration Statement has become effective, and the
Registration Statement as of the effective date (the "Effective
Date," as defined in this paragraph), and the Prospectus, as of the
date of the Prospectus Supplement, complied in all material respects
with the applicable requirements of the Act and the 1933 Act
Regulations; and the Registration Statement, as of the Effective
Date, did not contain any untrue statement of a material fact and
did not omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
and each Issuer Free Writing Prospectus (as defined herein) as of
its date did not and at all times prior to the date of the
Prospectus Supplement will not, and the Prospectus and Designated
Static Pool Information, taken together, as of the date of the
Prospectus Supplement did not and as of the Closing Date will not,
contain an untrue statement of a material fact and did not and will
not omit to state a material fact necessary in order to 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 any Senior Structure Information);
provided, however, that neither the Company nor Residential Funding
makes any representations or warranties as to the information
contained in or omitted from the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto relating
to the information therein that is Excluded Information (as defined
herein); and provided, further, that neither the Company nor
Residential Funding makes any representations or warranties as to
either (i) any information contained in any Underwriter Prepared
Issuer FWP (as defined herein) or Underwriter Free Writing
Prospectus (as defined herein) except, in each case, to the extent
of (x) any information set forth therein that constitutes Pool
Information (as defined below) or (y) any information accurately
extracted from any Issuer Free Writing Prospectus and included in
any Underwriter Prepared Issuer FWP or Underwriter Free Writing
Prospectus, or (ii) any information contained in or omitted from the
portions of the Prospectus identified by underlining or other
highlighting as shown in Exhibit F (the "Underwriter Information").
The Effective Date shall mean the earlier of the date on which the
Prospectus Supplement is first used and the time of the first
Contract of Sale (as defined herein) to which such Prospectus
Supplement relates. The initial effective date of the Registration
Statement was within three years of the Closing Date. If the third
anniversary of the initial effective date occurs within six months
after the Closing Date, the Company will use best efforts to take
such action as may be necessary or appropriate to permit the public
offering and sale of the Notes as contemplated hereunder. The
Company acknowledges that the Underwriter Information constitutes
the only information furnished in writing by you or on your behalf
for use in connection with the preparation of the Registration
Statement or the Prospectus, and the Underwriter confirms that the
Underwriter Information is correct.
(c) (i) "ABS Informational and Computational Materials" shall
have the meaning given such term in Item 1101 of Regulation AB.
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(ii) "Approved Offering Materials" means with respect to
any class of Notes, collectively the following documents as
most recently provided by the Company and designated in
writing by the Company as Approved Offering Materials prior to
the time of any Contract of Sale: (i) one or more term sheets,
providing factual information about the Notes and the
structure and basic parameters thereof (excluding information
about the subdivision of the senior classes into tranches),
the basic terms of the subordination or other credit
enhancements if known, factual information about the Mortgage
Loans (which may include parameters or "stips" or tabular data
prepared by the Company), the identity of and basic
information about key parties to the transaction known to the
Company, and the tax, ERISA and SMMEA characteristics of the
Notes, (ii) a term sheet supplement, containing risk factors
and additional information of the type to appear in the
Prospectus Supplement to the extent known, and (iii) the Base
Prospectus, which may be provided by a weblink. Each of the
items described in (i) and (ii) in the preceding sentence
shall constitute an Issuer Free Writing Prospectus and any
additional information provided by the Underwriter shall
constitute an Underwriter Free Writing Prospectus or
Underwriter Prepared Issuer FWP, as the case may be.
(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
each of the Registration Statement and the Prospectus, the
information identified by underlining or other highlighting as
shown on Exhibit E.
(v) "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.
(vi) "Free Writing Prospectus" shall have the meaning
given such term in Rules 405 and 433 of the 1933 Act
Regulations.
(vii) "Issuer Free Writing Prospectus" shall mean any
Free Writing Prospectus prepared by or on behalf of the
Company and identified by the Company as an Issuer Free
Writing Prospectus and relating to the Notes or the offering
thereof.
(viii) "Issuer Information" shall mean any information
of the type specified in clauses (1) - (5) of footnote 271 of
Commission Release No. 33-8591 (Securities Offering Reform),
other than Underwriter Derived Information. Consistent with
such definition, "Issuer Information" shall not be deemed to
include any information in a Free Writing Prospectus solely by
reason of the Company's review of the materials pursuant to
Section 4.4(e) below and, consistent with Securities Offering
Reform Questions and Answers, November 30, 2005 promulgated by
the staff of the Commission, "Issuer Information" shall not be
deemed to include any information in a Free Writing Prospectus
solely by reason that the Underwriter has agreed not to use
such Free Writing Prospectus without consent of the Company.
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(ix) "Permitted Additional Materials" shall mean
information that is not ABS Informational and Computational
Materials and (x) that are referred to in Section 4.4(c) so
long as any Issuer Information provided by the Underwriter
pursuant to Section 4.4(c) is limited to information included
within the definition of ABS Informational and Computational
Materials, (y) that constitute Note price, yield, weighted
average life, subscription or allocation information, or a
trade confirmation, or (z) otherwise with respect to which the
Company has provided written consent to the Underwriter to
include in a Free Writing Prospectus.
(x) "Pool Information" means with respect to any Free
Writing Prospectus, the information (including any Preliminary
Pool Information) with respect to the characteristics of the
Mortgage Loans and administrative and 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) "Senior Structure Information" shall mean, with
respect to each class of Notes anticipated to be rated in the
highest category by any Rating Agency (collectively, the
"Senior Notes"), (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 Senior Notes, (iii) the terms and
the provider of any surety bond, financial guaranty insurance
policy, or other insurance policy regarding any class of the
Senior Notes no known to the Company when the Approved
Offering Materials were prepared, (iv) the allocation to each
class of Senior Notes of the aggregate amount of the cashflow
payable among the Senior Notes collectively, and (v) the
allocation to each class of the aggregate amount of Senior
Notes of any Realized Losses allocable to the Senior Notes
collectively.
(xii) "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."
(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
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that contains only a description of the final terms of the
Notes or of the offering of the Notes after the final terms
have been established for all classes of Notes.
(xvi) "Written Communication" shall have the meaning
given such term in Rule 405 of the 1933 Act Regulations.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has the requisite corporate power to own its
properties and to conduct its business as presently conducted by it.
(e) The Company was not, as of any date on or after which a
bona fide offer (as used in Rule 164(h)(2) of the 1933 Act
Regulations) of the Note is made an Ineligible Issuer, as such term
is defined in Rule 405 of the 1933 Act Regulations. The Company
shall comply with all applicable laws and regulations in connection
with the use of Free Writing Prospectuses, including but not limited
to Rules 164 and 433 of the 1933 Act Regulations and all Commission
guidance relating to Free Writing Prospectuses, including but not
limited to Commission Release No. 33-8591.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) As of the Closing Date (as defined herein) the Notes will
conform in all material respects to the description thereof
contained in the Prospectus and the representations and warranties
of the Company in the Indenture will be true and correct in all
material respects.
1.2 Residential Funding represents and warrants to, and agrees with
you that as of the Closing Date the representations and warranties of
Residential Funding in the Servicing Agreement will be true and correct in all
material respects.
1.3 The Underwriter represents and warrants to and agrees with the
Company and Residential Funding that:
(a) [reserved].
(b) The Underwriter has no present knowledge or expectation
that it will be unable to pay any United States taxes owed by it so
long as any of the Notes remain outstanding.
(c) The Underwriter has no present knowledge or expectation
that it will become insolvent or subject to a bankruptcy proceeding
for so long as any of the Notes remain outstanding.
(d) [reserved].
(e) [reserved].
(f) The Underwriter hereby certifies that (i) with respect to
any classes of Notes issued in authorized denominations or
Percentage Interests of less than a notional amount of $2,000,000 or
a Percentage Interest of 20% the fair market value of
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each such Note sold to any person on the date of initial sale
thereof by the Underwriter will not be less than $100,000 and (ii)
with respect to each class of Notes to be maintained on the
book-entry records of The Depository Trust Company ("DTC"), the
interest in each such class of Notes sold to any person on the date
of initial sale thereof by the Underwriter will not be less than the
minimum denomination indicated for such class of Notes in the
Prospectus Supplement.
(g) The Underwriter will have funds available at [_________], in the
Underwriter's account at such bank at the time all documents are executed
and the closing of the sale of the Notes is completed, except for the
transfer of funds and the delivery of the Notes. Such funds will be
available for immediate transfer into the account of Residential Funding
maintained at such bank.
(h) As of the date hereof and as of the Closing Date, the
Underwriter has complied with all of its obligations hereunder and all
information contained in any Underwriter Free Writing Prospectus and in
any Underwriter Prepared Issuer FWP as used in connection with any
Contract of Sale and all Underwriter Information are accurate in all
material respects (taking into account the assumptions explicitly set
forth in such Underwriter Prepared Issuer FWP or Underwriter Free Writing
Prospectus), except to the extent of (x) any errors therein that are
caused by errors or omissions in the Pool Information or (y) information
accurately extracted from any Issuer Free Writing Prospectus and included
in any Underwriter Prepared Issuer FWP or Underwriter Free Writing
Prospectus.
(i) Prior to the Closing Date, the Underwriter shall notify the
Company and Residential Funding of the earlier of (x) the date on which
the Prospectus Supplement is first used and (y) the time of the first
Contract of Sale to which such Prospectus Supplement relates.
1.4 [Reserved].
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to you, and you agree to purchase from the Company, the Notes at a price
equal to [_____]% of the aggregate note principal balance of the Notes as of the
Closing Date (as defined herein). There will be added to the purchase price of
the Notes an amount equal to interest accrued thereon from the Cut-off Date up
to but not including the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Notes shall be
made at the office of [▇▇▇▇▇, Brown, ▇▇▇▇ & Maw LLP] [▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP] at 10:00 a.m., New York City time, on [________] [__], 200[__] or
such later date as you shall designate, which date and time may be postponed by
agreement between you and the Company (such date and time of delivery and
payment for the Notes being herein called the "Closing Date"). Delivery of the
[Deal Name], Class A-1, Class A-2 and Class A-3 Notes shall be made to you
through the Depository Trust Company ("DTC") (such Notes, the "DTC Registered
Notes").
4. Offering by Underwriter.
4.1 It is understood that you propose to offer the Notes for sale to
the public as set forth in the Prospectus and you agree that all such offers and
sales by you shall be made in
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compliance with all applicable laws and regulations. Prior to the date of the
first Contract of Sale made based on the Approved Offering Materials, you have
not pledged, sold, disposed of or otherwise transferred any Note, Mortgage Loans
or any interest in any Note.
4.2 It is understood that you will solicit offers to purchase the
Notes as follows:
(a) Prior to the time you have received the Approved Offering
Materials you may, in compliance with the provisions of this Agreement, solicit
offers to purchase Notes; provided, that you shall not accept any such offer to
purchase a Note or any interest in any Note or Mortgage Loan or otherwise enter
into any Contract of Sale for any Note, any interest in any Note or any Mortgage
Loan prior to your conveyance of Approved Offering Materials to the investor.
(b) Any Written Communication relating to the Notes made by an
Underwriter in compliance with the terms of this Agreement prior to the time
such Underwriter has entered into a Contract of Sale for Notes with the
recipient shall prominently set forth the following statements (or substantially
similar statements approved by the Company):
The information in this free writing prospectus, if conveyed prior
to the time of your contractual commitment to purchase any of the
Notes, supersedes any information contained in any prior similar
materials relating to the Notes. The information in this free
writing prospectus is preliminary, and is subject to completion or
change. This free writing prospectus is being delivered to you
solely to provide you with information about the offering of the
Notes referred to in this free writing prospectus and to solicit an
offer to purchase the Notes, when, as and if issued. Any such offer
to purchase made by you will not be accepted and will not constitute
a contractual commitment by you to purchase any of the Notes, until
we have accepted your offer to purchase Notes.
The Notes referred to in these materials are being sold when, as and
if issued. The issuer is not obligated to issue such Notes or any
similar security and the underwriter's obligation to deliver such
Notes is subject to the terms and conditions of the underwriting
agreement with the issuer and the availability of such Notes when,
as and if issued by the issuer. You are advised that the terms of
the Notes, and the characteristics of the mortgage loan pool backing
them, may change (due, among other things, to the possibility that
mortgage loans that comprise the pool may become delinquent or
defaulted or may be removed or replaced and that similar or
different mortgage loans may be added to the pool, and that one or
more classes of Notes may be split, combined or eliminated), at any
time prior to issuance or availability of a final prospectus. You
are advised that Notes may not be issued that have the
characteristics described in these materials. The underwriter's
obligation to sell such Notes to you is conditioned on the mortgage
loans and Notes having the characteristics described in these
materials. If for any reason the issuer does not deliver
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such Notes, the underwriter will notify you, and neither the issuer
nor any underwriter will have any obligation to you to deliver all
or any portion of the Notes which you have committed to purchase,
and none of the issuer nor any underwriter will be liable for any
costs or damages whatsoever arising from or related to such
non-delivery.
(c) Any Preliminary Pool Information shall not be provided to
prospective investors unless such Preliminary Pool Information is accompanied by
the Approved Offering Materials and the following statements (or substantially
similar statements approved by the Company) appear prominently thereon:
The information set forth below, entitled "preliminary information",
was derived from a preliminary pool of mortgage loans which is not
representative of the mortgage loans that will comprise the final
mortgage loan pool. The preliminary pool of mortgage loans
represents only a subset of the final mortgage loan pool and
mortgage loans that are included in the preliminary mortgage loan
pool may be removed from the final mortgage loan pool. It is
expected that the characteristics of the final mortgage loan pool
will differ, and may differ materially, from the characteristics of
the preliminary pool of mortgage loans and the preliminary
information may differ materially from information of a similar type
if derived from the final mortgage loan pool. Although the
characteristics of the final mortgage loan pool are expected to be
within the parameters for the mortgage loan characteristics as set
forth in the tables entitled ["collateral stipulations - mortgage
pool characteristics"] [accompanying Approved Offering Materials],
they are not expected to conform in all material respects to the
characteristics of the preliminary mortgage loan pool. You should
refer to the parameters for the mortgage loan characteristics in the
tables entitled ["collateral stipulations - mortgage pool
characteristics"] in the accompanying [Approved Offering Materials].
4.3 It is understood that you will not enter into a Contract of Sale
with any investor until the Approved Offering Materials have been conveyed to
the investor with respect to the Notes which are the subject of such Contract of
Sale.
4.4 It is understood that you may prepare and provide to prospective
investors certain Free Writing Prospectuses, subject to the following
conditions:
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, the Underwriter shall not convey
or deliver any Written Communication to any person in connection with the
initial offering of the Notes, unless such Written Communication (i) is
made in reliance on Rule 134 under the Act, (ii) constitutes a prospectus
satisfying the requirements of Rule 430B under the Act or (iii)
constitutes a Free Writing Prospectus (as defined in Section 1.1(c) above)
consisting
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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 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 ______________.
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
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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
Notes described in any Underwriter Free Writing Prospectus or any
Underwriter Prepared Issuer FWP will be of a type set forth in one of the
categories listed beneath the heading "Description of Securities" in the
term sheet supplement included in the Approved Offering Materials and the
description of the characteristics of the Notes contained in such
Underwriter Free Writing Prospectus or any Underwriter Prepared Issuer FWP
shall not be inconsistent with the description of the Notes beneath such
heading in the term sheet supplement.
(h) The Company shall not be obligated to file any Issuer Free
Writing Prospectuses that have been determined to contain any material
error or omission unless such Issuer Free Writing Prospectus has been
provided to a prospective investor, in which case, the Underwriter shall
cooperate with the Company to prepare a corrective Issuer Free Writing
Prospectus that the Underwriter will provide to any such prospective
investor and the Company shall file to the extent required herein. In the
event that the Underwriter becomes aware that, as of the date on which an
investor entered into a Contract of Sale, any Free Writing Prospectus
prepared by or on behalf of the Underwriter and delivered to such investor
contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained therein,
in light of the circumstances under which they were made, not misleading
(such Free Writing Prospectus, a "Defective Free Writing Prospectus"), the
Underwriter shall notify the Company thereof as soon as practical but in
any event within one business day after discovery.
(i) If the Underwriter does not provide any Free Writing
Prospectuses to the Company pursuant to subsection (e) above, the
Underwriter shall be deemed to have represented, as of the Closing Date,
that it did not provide any prospective investors
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with any information in written or electronic form in connection with the
offering of the Notes that would constitute an Underwriter Prepared Issuer
FWP.
(j) In the event of any delay in the delivery by the Underwriter to
the Company of any Underwriter Prepared Issuer FWP required to be
delivered in accordance with subsection (e) above, or in the delivery of
the accountant's comfort letter in respect thereof pursuant to subsection
(f) above, the Company shall have the right to delay the release of the
Prospectus to investors or to the Underwriter, to delay the Closing Date
and to take other appropriate actions in each case as necessary in order
to allow the Company to comply with its agreement set forth in Section
5.10 to file such Underwriter Prepared Issuer FWP by the time specified
therein.
(k) The Underwriter represents that it has in place, and covenants
that it shall maintain, internal controls and procedures which it
reasonably believes to be sufficient to ensure full compliance with all
applicable legal requirements of the 1933 Act Regulations with respect to
the generation and use of Free Writing Prospectuses in connection with the
offering of the Notes. In addition, each Underwriter shall, for a period
of at least three years after the date hereof, maintain written and/or
electronic records of the following:
(i) any Free Writing Prospectus used by the Underwriter to
solicit offers to purchase Notes to the extent not filed with the
Commission;
(ii) regarding each Free Writing Prospectus delivered by the
Underwriter to an investor, the date of such delivery and identity
of such investor; and
(iii) regarding each Contract of Sale entered into by such
Underwriter, the date, identity of the investor and the terms of
such Contract of Sale, as set forth in the related confirmation of
trade.
(l) The Underwriter covenants with the Company that after the
final Prospectus is available the Underwriter shall not distribute
any written information concerning the Notes to a prospective
investor unless such information is preceded or accompanied by the
final Prospectus. It is understood and agreed that the use of
written information in accordance with the preceding sentence is not
a Free Writing Prospectus and is not otherwise restricted or
governed in any way by this Agreement.
(m) The Underwriter shall not use any Free Writing Prospectus
in connection with the solicitation of offers to purchase Notes from
any prospective investor in a class of Notes with denominations of
less than $25,000 or otherwise designated as a "retail" class of
Notes, and the Underwriter shall not authorize any such use of any
Free Writing Prospectus by any dealer that purchases any such Notes
from the Underwriter.
4.5 You further agree that on or prior to the sixth day after the
Closing Date, you shall provide the Company with a certificate, substantially in
the form of Exhibit G attached hereto, setting forth (i) in the case of each
class of Notes, (a) if less than 10% of the aggregate note principal balance of
such class of Notes has been sold to the public as of such date, the value
calculated pursuant to clause (b)(iii) of Exhibit G hereto, or, (b) if 10% or
more of such class of Notes has been sold to the public as of such date but no
single price is paid for at least
11
10% of the aggregate note principal balance of such class of Notes, then the
weighted average price at which the Notes of such class were sold expressed as a
percentage of the note principal balance of such class of Notes sold, or (c) the
first single price at which at least 10% of the aggregate note principal balance
of such class of Notes was sold to the public, (ii) the prepayment assumption
used in pricing each class of Notes, and (iii) such other information as to
matters of fact as the Company may reasonably request to enable it to comply
with its reporting requirements with respect to each class of Notes to the
extent such information can in the good faith judgment of the Underwriter be
determined by it.
4.6 The Underwriter agrees that (i) if the Prospectus is not
delivered with the confirmation in reliance on Rule 172, it will include in
every confirmation sent out the notice required by Rule 173 informing the
investor that the sale was made pursuant to the Registration Statement and that
the investor may request a copy of the Prospectus from the Underwriter; (ii) if
a paper copy of the Prospectus is requested by a person who receives a
confirmation, Underwriter shall deliver a printed or paper copy of such
Prospectus; and (iii) if an electronic copy of the Prospectus is delivered by
the Underwriter for any purpose, such copy shall be the same electronic file
containing the Prospectus in the identical form transmitted electronically to
the Underwriter by or on behalf of the Company specifically for use by the
Underwriter pursuant to this Section 4.6; for example, if the Prospectus is
delivered to the Underwriter by or on behalf of the Company in a single
electronic file in pdf format, then the Underwriter will deliver the electronic
copy of the Prospectus in the same single electronic file in pdf format. The
Underwriter further agrees that (i) if it delivers to an investor the Prospectus
in pdf format, upon the Underwriter's receipt of a request from the investor
within the period for which delivery of the Prospectus is required, the
Underwriter will promptly deliver or cause to be delivered to the investor,
without charge, a paper copy of the Prospectus and (ii) it will provide to the
Company any Underwriter Prepared Issuer FWP, or portions thereof, which the
Company is required to file with the Commission in electronic format and will
use reasonable efforts to provide to the Company such Underwriter Prepared
Issuer FWP, or portions thereof, in either Microsoft Word(R) or Microsoft
Excel(R) format and not in a pdf, except to the extent that the Company, in its
sole discretion, waives such requirements.
5. Agreements. The Company and you agree as follows:
5.1 Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Notes, the Company will furnish you with a
copy of each such proposed amendment or supplement.
5.2 The Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424(b) under the Act
by means reasonably calculated to result in filing with the Commission pursuant
to said rule.
5.3 If, during the period after the first date of the public
offering of the Notes in which a prospectus relating to the Notes is required to
be delivered under the Act, any event occurs as a result of which it is
necessary to amend or supplement the Prospectus, as then amended or
supplemented, in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it shall be necessary to amend or supplement the Prospectus to comply with
the Act or the 1933 Act Regulations, the Company promptly will prepare and
furnish, at its own expense, to you, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so
12
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.
Any costs incurred to the investor in connection with any such termination or
reformation shall be subject to Sections 7.1 and 7.2, as applicable.
5.5 The Company will furnish to you, without charge, a copy of the
Registration Statement (including exhibits thereto) and, so long as delivery of
a prospectus by an underwriter or dealer may be required by the Act, as many
copies of the Prospectus, any documents incorporated by reference therein and
any amendments and supplements thereto as you may reasonably request; provided,
however, that if the Prospectus is not delivered with the confirmation in
reliance on Rule 172, you will provide the notice specified in Section 4.6 in
every confirmation and will deliver a paper copy of the prospectus to those
investors that request a paper copy thereof.
5.6 The Company agrees, so long as the Notes shall be outstanding,
or until such time as you shall cease to maintain a secondary market in the
Notes, whichever first occurs, to deliver to you the annual statement as to
compliance delivered to the Trustee pursuant to Section [___] of the Servicing
Agreement and the annual statement of a firm of independent public accountants
furnished to the Trustee pursuant to Section [___] of the Servicing Agreement,
as soon as such statements are furnished to the Company.
5.7 The Company will endeavor to arrange for the qualification of
the Notes for sale under the laws of such jurisdictions as you may reasonably
designate and will maintain such qualification in effect so long as required for
the initial distribution of the Notes; provided, however, that the Company shall
not be required to qualify to do business in any jurisdiction
13
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 Notes for
sale and determination of their eligibility for investment under the laws of
such jurisdictions as you have reasonably requested pursuant to Section 5.7
above and the printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Notes, and for expenses
incurred in distributing the Prospectus (including any amendments and
supplements thereto) to the Underwriter. Except as herein provided, you shall be
responsible for paying all costs and expenses incurred by you, including the
fees and disbursements of your counsel, in connection with the purchase and sale
of the Notes.
5.9 If, during the period after the Closing Date in which a
prospectus relating to the Notes is required to be delivered under the Act, the
Company receives notice that a stop order suspending the effectiveness of the
Registration Statement or preventing the offer and sale of the Notes is in
effect, the Company will advise you of the issuance of such stop order.
5.10 The Company shall file any Issuer Free Writing Prospectus, and
any Underwriter Prepared Issuer FWP provided to it by the Underwriter under
Section 4.4, not later than the date of first use thereof, except that:
(a) any Issuer Free Writing Prospectus or Underwriter Prepared
Issuer FWP or portion thereof otherwise required to be filed that
contains only (1) a description of the final terms of the Notes may
be filed by the Company within two days of the later of the date
such final terms have been established for all classes of Notes and
the date of first use, and (2) a description of the terms of the
Notes that does not reflect the final terms after they have been
established for all classes of all Notes is not required to be
filed; and
(b) if the Issuer Free Writing Prospectus or Underwriter
Prepared Issuer FWP includes only information of a type included in
the definition of ABS Informational and Computational Materials, the
Company shall file the same within the later of two business days
after the Underwriter first provides this information to investors
and the date upon which the Company is required to file the
Prospectus Supplement with the Commission pursuant to Rule 424(b)(3)
of the Act.
provided further, that prior to the filing of any Underwriter Prepared Issuer
FWP by the Company, the Underwriter must comply with its obligations pursuant to
Section 4.4 and that the Company shall not be required to file any Free Writing
Prospectus to the extent such Free Writing Prospectus includes information in a
Free Writing Prospectus or Prospectus previously filed with the Commission or
that does not contain substantive changes from or additions to a Free Writing
Prospectus previously filed with the Commission.
5.11 The Underwriter shall file any Underwriter Free Writing
Prospectus that has been distributed by the Underwriter in a manner reasonably
designed to lead to its broad, unrestricted dissemination within the later of
two business days after the Underwriter first
14
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.
6. Conditions to the Obligations of the Underwriter. The Underwriter's
obligation to purchase the Notes shall be subject to the following conditions:
6.1 No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened by the Commission; and
the Prospectus Supplement shall have been filed or transmitted for filing by
means reasonably calculated to result in a filing with the Commission pursuant
to Rule 424(b) under the Act.
6.2 Since [________] [__], 200[__] there shall have been no material
adverse change (not in the ordinary course of business) in the condition of the
Company or Residential Funding.
6.3 The Company shall have delivered to you a certificate, dated the
Closing Date, of the President, a Senior Vice President or a Vice President of
the Company to the effect that the signer of such certificate has examined this
Agreement, the Approved Offering Materials, the Prospectus, the Servicing
Agreement, the Trust Agreement, the Indenture and various other closing
documents, and that, to the best of his or her knowledge after reasonable
investigation:
(a) the representations and warranties of the Company in this
Agreement and in the Indenture are true and correct in all material
respects; and
(b) the Company has, in all material respects, complied with
all the agreements and satisfied all the conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date.
6.4 Residential Funding shall have delivered to you a certificate,
dated the Closing Date, of the President, a Managing Director, a Director or an
Associate of Residential
15
Funding to the effect that the signer of such certificate has examined the Trust
Agreement, the Servicing Agreement, the Indenture and this Agreement and that,
to the best of his or her knowledge after reasonable investigation, the
representations and warranties of Residential Funding contained in the Servicing
Agreement and in this Agreement are true and correct in all material respects.
6.5 You shall have received the opinions of [▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ &
Maw LLP] [▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP], special counsel for the Company
and Residential Funding, dated the Closing Date and substantially to the effect
set forth in Exhibits A-1, A-2 and A-3, and the opinion of [__________],
associate counsel for the Company and Residential Funding, dated the Closing
Date and substantially to the effect set forth in Exhibit B.
6.6 You shall have received a negative assurance letter regarding
the Prospectus from [▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw LLP] [▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP], special counsel for the Company and Residential Funding, in form
satisfactory to you.
6.7 The Underwriter shall have received from [___________],
certified public accountants, (a) a letter dated the date hereof and
satisfactory in form and substance to the Underwriter and the Underwriter's
counsel, to the effect that they have performed certain specified procedures,
all of which have been agreed to by the Underwriter, as a result of which they
determined that certain information of an accounting, financial or statistical
nature set forth in the Prospectus Supplement under the captions "Description of
the Mortgage Pool", "Description of the Agreements", "Description of the
Securities", "Certain Yield and Prepayment Considerations" and "Annex II Home
Loan Statistical Information" agrees with the records of the Company and
Residential Funding excluding any questions of legal interpretation and (b) the
letter prepared pursuant to Section 4.4(e).
6.8 The Class A Notes shall have been rated "AAA" by [Fitch Ratings,
("Fitch")] and AAA by [Standard & Poor's ("S&P")].
6.9 You shall have received the opinion of [_________], counsel to
the Trustee, dated the Closing Date, substantially to the effect set forth in
Exhibit C.
6.10 [You shall have received the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP,
special Minnesota tax counsel for the Company, dated the Closing Date,
substantially to the effect set forth in Exhibit D].
6.11 You shall have received from [_________], associate counsel to
the Company, a reliance letter with respect to any opinions delivered to the
rating agencies, or you shall have been listed as an addressee on any such
opinions.
The Company will furnish you with conformed copies of the above
opinions, certificates, letters and documents as you reasonably request.
7. Indemnification and Contribution.
7.1 The Company and Residential Funding, jointly and severally,
agree to indemnify and hold harmless you and each person, if any, who controls
you within the meaning of either Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and
against any and all losses, claims, damages and liabilities (i)
16
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Notes as
originally filed or in any amendment thereof or other filing incorporated by
reference therein, or in the Prospectus and Designated Static Pool Information,
taken together, or incorporated by reference in the Prospectus (if used within
the period set forth in Section 5.3 hereof and as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (ii) caused by any
untrue statement or alleged untrue statement of a material fact contained in any
Issuer Free Writing Prospectus, or any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading (except any
omission with respect to information included in the definition of Senior
Structure Information), 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) 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
17
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 any legend regarding original issue
discount on any Note resulting 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, 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
18
indemnified party as a result of such losses, claims, damages or liabilities, in
such proportion as is appropriate to reflect not only the relative benefits
received by the Company and Residential Funding on the one hand and the
Underwriter on the other from the offering of the Notes but also the relative
fault of the Company or Residential Funding on the one hand and of the
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company and
Residential Funding on the one hand and of the Underwriter on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriter, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
7.5 The Company, Residential Funding and the Underwriter agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation or by any other method of allocation
which does not take account of the considerations referred to in Section 7.4
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in this Section 7 shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim except where the indemnified
party is required to bear such expenses pursuant to Section 7.4; which expenses
the indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party believes that it
will be ultimately obligated to pay such expenses. In the event that any
expenses so paid by the indemnifying party are subsequently determined to not be
required to be borne by the indemnifying party hereunder, the party which
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
7.6 The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company and Residential
Funding in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by the Underwriter or on behalf of the Underwriter or any person controlling the
Underwriter or by or on behalf of the Company or Residential Funding and their
respective directors or officers or any person controlling the Company or
Residential Funding and (iii) acceptance of and payment for any of the Notes.
8. Termination. This Agreement shall be subject to termination by notice
given to the Company and Residential Funding, if the sale of the Notes provided
for herein is not consummated because of any failure or refusal on the part of
the Company or Residential Funding to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the Company or
Residential Funding shall be unable to perform their respective obligations
under this Agreement. If you terminate this Agreement in accordance with this
Section 8, the Company or Residential Funding will reimburse you for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been reasonably incurred by the Underwriter in
connection with the proposed purchase and sale of the Notes.
19
9. Certain Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, Residential Funding or the officers of any of the Company, Residential
Funding, and you set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation, or statement as to the
results thereof, made by you or on your behalf or made by or on behalf of the
Company or Residential Funding or any of their respective officers, directors or
controlling persons, and will survive delivery of and payment for the Notes.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriter will be mailed, delivered or
telegraphed and confirmed to you at [__________], or if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at Residential
Asset Mortgage Products, 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.
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 ASSET MORTGAGE PRODUCTS, 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
[▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw LLP] [▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP] Opinion
Main Closing Opinion (Underwriting Agreement)
A-1
[EXHIBIT A-2]
[▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw LLP
Negative Assurance Letter (Underwriting Agreement)]
A-2
[EXHIBIT A-3]
[Mayer, Brown, ▇▇▇▇ & Maw LLP 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 Faegre & ▇▇▇▇▇▇, LLP
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
I-1