EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT (ITERATIVE)
RESIDENTIAL FUNDING MORTGAGE SECURITIES II, 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") Home Equity Loan 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 and second lien mortgage loans (the "Mortgage Loans") as
described in the
Prospectus Supplement (as hereinafter defined) to be sold by the
Company. A de
minimis portion of the Class R Certificates will not be sold
hereunder and will
be held by Residential Funding Corporation ("Residential Funding").
The Certificates will be issued pursuant to a pooling and servicing
agreement, dated as of [_____] 1, 20[__] (the "Cut-off Date") (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 Home Equity Loan Pass-Through Certificates
(issuable in
series), including the Certificates, which registration statement
has
become effective, and a copy of which, as amended to the date
hereof, has
heretofore been delivered to you. The Company proposes to file with
the
Commission pursuant to Rule 424(b) under the rules and regulations
of the
Commission under the Act (the "1933 Act Regulations") a prospectus
supplement (the "Prospectus Supplement"), to the prospectus dated
[_____]
[__], 20[__] (the "Base Prospectus"), relating to the Certificates
and the
method of distribution thereof. Such registration statement (No.
333-[______]) including exhibits thereto and any information
incorporated
therein by reference, as amended at the date hereof, is hereinafter
called
the "Registration Statement"; and the Base Prospectus and the
Prospectus
Supplement and any information incorporated therein by reference,
together
with any amendment thereof or supplement thereto authorized by the
Company
on or prior to the Closing Date (as defined herein) for use in
connection
with the offering of the Certificates, are hereinafter called the
"Prospectus."
(b) The Registration Statement has become effective, and the
Registration Statement as of the effective date (the "Effective
Date," as
defined in this paragraph), and the Prospectus, as of the date of
the
Prospectus Supplement, complied in all material respects with the
applicable requirements of the Act and the 1933 Act Regulations;
and the
Registration Statement, as of the Effective Date, did not contain
any
untrue statement of a material fact and did not omit to state any
material
fact required to be stated therein or necessary to make the
statements
therein not misleading; and each Issuer Free Writing Prospectus (as
defined
herein) as of its date did not and at all times prior to the date
of the
Prospectus Supplement will not, and the Prospectus, 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
relating to 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
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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 or
the
Prospectus, and the Underwriter confirms that the Underwriter
Information
is correct.
(c) (i)"ABS Informational and Computational Materials" shall have
the meaning given such term in Item 1101 of Regulation AB.
(ii) "Approved Offering Materials" means with respect to any
class of Certificates anticipated to be rated in the highest
category
by any Rating Agency, collectively the following documents as most
recently provided by the Company and designated in writing by the
Company as Approved Offering Materials prior to the time of any
Contract of Sale: (i) one or more term sheets, providing factual
information about the Certificates and the structure and basic
parameters thereof (excluding information about the subdivision of
the
senior classes into tranches), the basic terms of the subordination
or
other credit enhancements if known, factual information about the
Mortgage Loans (which may include parameters or "stips" or tabular
data prepared by the Company), the identity of and basic
information
about key parties to the transaction known to the Company, and the
tax, ERISA and SMMEA characteristics of the Certificates, (ii) a
term
sheet supplement, containing risk factors and additional
information
of the type to appear in the Prospectus Supplement to the extent
known, and (iii) the Base Prospectus, which may be provided by a
weblink. Each of the items described in (i) and (ii) in the
preceding
sentence shall constitute an Issuer Free Writing Prospectus and any
additional information provided by the Underwriter shall constitute
an
Underwriter Free Writing Prospectus or Underwriter Prepared Issuer
FWP, as the case may be. With respect to any class of Certificates
anticipated to be rated in the second highest or a lower category
by
any Rating Agency, "Approved Offering Materials" means the
Prospectus.
(iii) "Contract of Sale" has the same meaning as in Rule 159
of the 1933 Act Regulations and all Commission guidance relating to
Rule 159.
(iv) "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) "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
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Company as an Issuer Free Writing Prospectus and relating to the
Certificates or the offering thereof.
(vii) "Issuer Information" shall mean any information of the
type specified in clauses (1) - (5) of footnote 271 of Commission
Release No. 33-8591 (Securities Offering Reform), other than
Underwriter Derived Information. Consistent with such definition,
"Issuer Information" shall not be deemed to include any information
in
a Free Writing Prospectus solely by reason of the Company's review
of
the materials pursuant to Section 4.4(e) below and, consistent with
Securities Offering Reform Questions and Answers, November 30, 2005
promulgated by the staff of the Commission, "Issuer Information"
shall
not be deemed to include any information in a Free Writing
Prospectus
solely by reason that the Underwriter has agreed not to use such
Free
Writing Prospectus without consent of the Company.
(viii) "Permitted Additional Materials" shall mean
information that is not ABS Informational and Computational
Materials
and (x) that are referred to in Section 4.4(c) so long as any
Issuer
Information provided by the Underwriter pursuant to Section 4.4(c)
is
limited to information included within the definition of ABS
Informational and Computational Materials, (y) that constitute
Certificate price, yield, weighted average life, subscription or
allocation information, or a trade confirmation, or (z) otherwise
with
respect to which the Company has provided written consent to the
Underwriter to include in a Free Writing Prospectus.
(ix) "Pool Information" means with respect to any Free
Writing Prospectus, the information with respect to the
characteristics of the Mortgage Loans and administrative and
servicing
fees, as provided by or on behalf of the Company or Residential
Funding to the Underwriter at the time most recent to the date of
such
Free Writing Prospectus.
(x) "Senior Structure Information" shall mean, with respect
to each class of Certificates anticipated to be rated in the
highest
category by any Rating Agency (collectively, the "Senior
Certificates"), (i) the Pass-Through Rate if a fixed rate, or the
formula for determining the Pass-Through Rate, (ii) the terms and
the
provider of any yield maintenance agreement, swap agreement or
other
agreement that provides payments payable on any class of the Senior
Certificates, (iii) the terms and the provider of any surety bond,
financial guaranty insurance policy, or other insurance policy
regarding any class of the Senior Certificates not known to the
Company when the Approved Offering Materials were prepared, (iv)
the
allocation to each class of Senior Certificates of the aggregate
amount of the cashflow payable among the Senior Certificates
collectively, and (v) the allocation to each class of Senior
Certificates of the aggregate amount of any Realized Losses
allocable
to the Senior Certificates collectively.
(xi) "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
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Underwriter, including traditional computational and analytical
materials prepared by the Underwriter.
(xii) "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.
(xiii) "Underwriter Prepared Issuer FWP" shall mean any Free
Writing Prospectus or portion thereof prepared by or on behalf of
the
Underwriter that contains only a description of the final terms of
the
Certificates or of the offering of the Certificates after the final
terms have been established for all classes of Senior Certificates.
(xiv) "Written Communication" shall have the meaning given
such term in Rule 405 of the 1933 Act Regulations.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of
Delaware and has the requisite corporate power to own its
properties and to
conduct its business as presently conducted by it.
(e) The Company was not, as of any date on or after which a bona
fide offer (as used in Rule 164(h)(2) of the 1933 Act Regulations)
of the
Certificate is made an Ineligible Issuer, as such term is defined
in Rule
405 of the 1933 Act Regulations. The Company shall comply with all
applicable laws and regulations in connection with the use of Free
Writing
Prospectuses, including but not limited to Rules 164 and 433 of the
1933
Act Regulations and all Commission guidance relating to Free
Writing
Prospectuses, including but not limited to Commission Release No.
33-8591.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) As of the Closing Date (as defined herein) the Certificates
will conform in all material respects to the description thereof
contained
in the Prospectus and the representations and warranties of the
Company in
the Pooling and Servicing Agreement will be true and correct in all
material respects.
1.2 Residential Funding represents and warrants to, and agrees with
you that as of the Closing Date the representations and warranties
of
Residential Funding in the Pooling and Servicing Agreement will be
true and
correct in all material respects.
1.3 The Underwriter represents and warrants to and agrees with the
Company and Residential Funding that:
(a) No purpose of the Underwriter relating to the purchase of the
Class R Certificates by the Underwriter is or will be to enable the
Company
to impede the assessment or collection of any tax.
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(b) The Underwriter has no present knowledge or expectation that
it will be unable to pay any United States taxes owed by it so long
as any
of the Certificates remain outstanding.
(c) The Underwriter has no present knowledge or expectation that
it will become insolvent or subject to a bankruptcy proceeding for
so long
as any of the Certificates remain outstanding.
(d) No purpose of the Underwriter relating to any sale of any of
the Class R Certificates by the Underwriter will be to enable it to
impede
the assessment or collection of tax. In this regard, the
Underwriter hereby
represents to and for the benefit of the Company and Residential
Funding
that the Underwriter intends to pay taxes associated with holding
the Class
R Certificates (other than with respect to the portion of each of
the Class
R Certificates retained by Residential Funding), as they become
due, fully
understanding that it may incur tax liabilities in excess of any
cash flows
generated by the Class R Certificates.
(e) The Underwriter will, in connection with any transfer it
makes of the Class R Certificates, obtain from its transferee the
affidavit
required by Section 5.02(f)(i)(B)(I) of the Pooling and Servicing
Agreement, will not consummate any such transfer if it knows or
believes
that any representation contained in such affidavit is false and
will
provide the Trustee with the Certificate required by Section
5.02(f)(i)(B)(II) of the Pooling and Servicing Agreement.
(f) The Underwriter hereby certifies that (i) with respect to any
classes of Certificates issued in authorized denominations or
Percentage
Interests of less than a notional amount of $2,000,000 or a
Percentage
Interest of 20% the fair market value of each such Certificate sold
to any
person on the date of initial sale thereof by the Underwriter will
not be
less than $100,000 and (ii) with respect to each class of
Certificates to
be maintained on the book-entry records of The Depository Trust
Company
("DTC"), the interest in each such class of Certificates sold to
any person
on the date of initial sale thereof by the Underwriter will not be
less
than the minimum denomination indicated for such class of
Certificates in
the Prospectus Supplement.
(g) The Underwriter will have funds available at U.S. Bank
National Association, 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
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
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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 The Underwriter covenants and agrees to pay directly, or
reimburse
the Company or Residential Funding upon demand for (i) any and all
taxes
(including penalties and interest) owed or asserted to be owed by
the Company or
Residential Funding as a result of a claim by the Internal Revenue
Service that
the transfer of the Class R Certificates to the Underwriter
hereunder or any
transfer thereof by the Underwriter may be disregarded for federal
tax purposes
and (ii) any and all losses, claims, damages and liabilities,
including
attorney's fees and expenses, arising out of any failure of the
Underwriter to
make payment or reimbursement in connection with any such assertion
as required
in (i) above. In addition, the Underwriter acknowledges that on the
Closing Date
immediately after the transactions described herein it will be the
owner of the
Class R Certificates (other than a de minimis portion of the Class
R
Certificates to be held by Residential Funding) for federal tax
purposes, and
the Underwriter covenants that it will not assert in any proceeding
that the
transfer of the Class R Certificates from the Company to the
Underwriter should
be disregarded for any purpose.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance
upon the representations and warranties herein set forth, the
Company agrees to
sell to you, and you agree to purchase from the Company, the
Certificates (other
than a de minimis portion of the Class R Certificates, which shall
be
transferred by the Company to Residential Funding) at a price equal
to [_____]%
of the aggregate certificate principal balance of the Certificates
as of the
Closing Date (as defined herein). There will be added to the
purchase price of
the Certificates an amount equal to interest accrued thereon from
the Cut-off
Date up to but not including the Closing Date. The purchase price
for the
Certificates was agreed to by the Company in reliance upon the
transfer from the
Company to the Underwriter of the tax liabilities associated with
the ownership
of the Class R Certificates.
3. Delivery and Payment. Delivery of and payment for the
Certificates shall
be made at the office of [Issuer's Counsel] 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.
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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 shall
prominently set forth the following statements (or a substantially
similar
statements approved by the Company):
The information in this free writing prospectus, if conveyed prior
to
the time of your contractual commitment to purchase any of the
Certificates, supersedes any information contained in any prior
similar materials relating to the Certificates. The information in
this free writing prospectus is preliminary, and is subject to
completion or change. This free writing prospectus is being
delivered
to you solely to provide you with information about the offering of
the Certificates referred to in this free writing prospectus and to
solicit an offer to purchase the Certificates, when, as and if
issued.
Any such offer to purchase made by you will not be accepted and
will
not constitute a contractual commitment by you to purchase any of
the
Certificates, until we have accepted your offer to purchase
Certificates.
The Certificates referred to in these materials are being sold
when,
as and if issued. The issuer is not obligated to issue such
Certificates or any similar security and the underwriter's
obligation
to deliver such Certificates is subject to the terms and conditions
of
the underwriting agreement with the issuer and the availability of
such Certificates when, as and if issued by the issuer. You are
advised that the terms of the Certificates, and the characteristics
of
the mortgage loan pool backing them, may change (due, among other
things, to the possibility that mortgage loans that comprise the
pool
may become delinquent or defaulted or may be removed or replaced
and
that similar or different mortgage loans may be
8
added to the pool, and that one or more classes of Certificates may
be
split, combined or eliminated), at any time prior to issuance or
availability of a final prospectus. You are advised that
Certificates
may not be issued that have the characteristics described in these
materials. The underwriter's obligation to sell such Certificates
to
you is conditioned on the mortgage loans and Certificates having
the
characteristics described in these materials. If for any reason the
issuer does not deliver such Certificates, the underwriter will
notify
you, and neither the issuer nor any underwriter will have any
obligation to you to deliver all or any portion of the Certificates
which you have committed to purchase, and none of the issuer nor
any
underwriter will be liable for any costs or damages whatsoever
arising
from or related to such non-delivery.
4.3 It is understood that you will not enter into a Contract of
Sale
with any investor until the Approved Offering Materials have been
conveyed to
the investor with respect to the Certificates which are the subject
of such
Contract of Sale.
4.4 It is understood that you may prepare and provide to
prospective
investors certain Free Writing Prospectuses, subject to the
following
conditions:
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, the Underwriter shall not
convey
or deliver any Written Communication to any person in connection
with the
initial offering of the Certificates, unless such Written
Communication (i)
is made in reliance on Rule 134 under the Act, (ii) constitutes a
prospectus satisfying the requirements of Rule 430B under the Act
or (iii)
constitutes a Free Writing Prospectus (as defined in Section 1.1(c)
above)
consisting solely of (x) information of a type included within the
definition of ABS Informational and Computational Materials (as
defined
below), (y) Permitted Additional Materials or (z) information
accurately
extracted from 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
