Exhibit 1.2
FORM OF UNDERWRITING AGREEMENT (NON-ITERATIVE)
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
Mortgage Pass-Through Certificates, Series 20[__]-[____]
Initial Principal Amount
Class
Initial Pass-Through Rate
------------------------
-----
-------------------------
$[____]
Class A-1 Certificates
[___]%
$[____]
Class A-2 Certificates
[___]%
$[____]
Class A-3 Certificates
[___]%
$[____]
Class R Certificates
[___]%
UNDERWRITING AGREEMENT
[________], 20[__]
[Name of Underwriter,]
[as representative of the Underwriters ("Representative")]
[Address of Underwriter]
Ladies and Gentlemen:
Residential Funding Mortgage Securities I, Inc., a Delaware
corporation
(the "Company"), proposes to sell to you (also referred to herein
as the
"Underwriter") Mortgage Pass-Through Certificates, Series
20[__]-[____], Class
A-1, Class A-2, Class A-3, and Class R Certificates (collectively,
the
"Certificates"), other than a de minimis portion of the Class R
Certificates,
having the aggregate principal amounts and Pass-Through Rates set
forth above.
The Certificates, together with the Class A-V, Class A-P, Class
M-1, Class M-2,
Class M-3, Class B-1, Class B-2 and Class B-3 Certificates of the
same series,
will evidence the entire beneficial interest in the Trust Fund (as
defined in
the Pooling and Servicing Agreement referred to below), consisting
primarily of
a pool (the "Pool") of conventional, fixed-rate, one- to
four-family residential
first lien mortgage loans (the "Mortgage Loans") as described in
the Prospectus
Supplement (as hereinafter defined) to be sold by the Company. A de
minimis
portion of the Class R Certificates will not be sold hereunder and
will be held
by Residential Funding Corporation ("Residential Funding").
The Certificates will be issued pursuant to a series supplement
(the
"Series Supplement"), dated as of [_____] 1, 20[__] (the "Cut-off
Date"), to the
standard terms of a pooling and servicing agreement, dated as of
[_____] 1,
20[__] (the "Standard Terms", and together with the Series
Supplement, the
"Pooling and Servicing Agreement"), among the Company, as seller,
Residential
Funding, as master servicer, and [__________], as trustee (the
"Trustee"). The
Certificates are described more fully in the Base Prospectus and
the Prospectus
Supplement (each as hereinafter defined), which the Company has
furnished to
you.
1. Representations, Warranties and Covenants.
1.1
The Company represents and warrants to, and agrees with you that:
(a) The Company has filed with the Securities and Exchange
Commission
(the "Commission") a registration statement (No. 333-[_____]) on
Form S-3 for
the registration under the Securities Act of 1933, as amended (the
"Act"), of
Mortgage Pass-Through Certificates (issuable in series), including
the
Certificates, which registration statement has become effective,
and a copy of
which, as amended to the date hereof, has heretofore been delivered
to you. The
Company proposes to file with the Commission pursuant to Rule
424(b) under the
rules and regulations of the Commission under the Act (the "1933
Act
Regulations") a prospectus supplement (the "Prospectus
Supplement"), to the
prospectus dated [_____] [__], 20[__] (the "Base Prospectus"),
relating to the
Certificates and the method of distribution thereof. Such
registration statement
(No. 333-[______]) including exhibits thereto and any information
incorporated
therein by reference, as amended at the date hereof, is hereinafter
called the
"Registration Statement"; and the Base Prospectus and the
Prospectus Supplement
and any information incorporated therein by reference, together
with any
amendment thereof or supplement thereto authorized by the Company
on or prior to
the Closing Date (as defined herein) for use in connection with the
offering of
the Certificates, are hereinafter called the "Prospectus." Any
preliminary form
of the Prospectus Supplement to be filed pursuant to Rule 424(b) is
referred to
as a "Preliminary Prospectus Supplement" and, together with the
Base Prospectus,
and as amended or supplemented if the Company shall have furnished
any
amendments or supplements thereto, a "Preliminary Prospectus."
(b) The Registration Statement has become effective, and the
Registration Statement as of the effective date (the "Effective
Date," as
defined in this paragraph), and the Prospectus, as of the date of
the Prospectus
Supplement, complied in all material respects with the applicable
requirements
of the Act and the 1933 Act Regulations; and the Registration
Statement, as of
the Effective Date, did not contain any untrue statement of a
material fact and
did not omit to state any material fact required to be stated
therein or
necessary to make the statements therein not misleading; and each
Issuer Free
Writing Prospectus (as defined herein) as of its date did not, and
the Approved
Offering Materials (as defined herein) as of the date of the
Approved Offering
Materials did not and as of the Closing Date will not, and the
Prospectus, as of
the date of the Prospectus Supplement did not and as of the Closing
Date will
not, contain an untrue statement of a material fact and did not and
will not
omit to state a material fact necessary in order to make the
statements therein,
in the light of the circumstances under which they were made, not
misleading;
provided, however, that neither the Company nor Residential Funding
makes any
representations or warranties as to the information contained in or
omitted from
the Registration Statement, the Approved Offering Materials or the
Prospectus or
any amendment thereof or supplement thereto relating to the
information therein
that is Excluded Information (as defined herein); and provided,
further, that
neither the Company nor Residential Funding makes any
representations or
warranties as to either (i) any information contained in any
Underwriter
Prepared Issuer FWP (as defined herein) or Underwriter Free Writing
Prospectus
(as defined herein) except, in each case, to the extent of (x) any
information
set forth therein that constitutes Pool Information (as defined
below) or (y)
any information accurately extracted from the Preliminary
Prospectus Supplement
or any Issuer Free Writing Prospectus and included
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in any Underwriter Prepared Issuer FWP, or (ii) any information
contained in or
omitted from the portions of the Approved Offering Materials or
Prospectus
identified by underlining or other highlighting as shown in Exhibit
F (the
"Underwriter Information"). The Effective Date shall mean the
earlier of the
date on which the Prospectus Supplement is first used and the time
of the first
Contract of Sale (as defined herein) to which such Prospectus
Supplement
relates. The initial effective date of the Registration Statement
was within
three years of the Closing Date. If the third anniversary of the
initial
effective date occurs within six months after the Closing Date, the
Company will
use best efforts to take such action as may be necessary or
appropriate to
permit the public offering and sale of the Certificates as
contemplated
hereunder. The Company acknowledges that the Underwriter
Information constitutes
the only information furnished in writing by you or on your behalf
for use in
connection with the preparation of the Registration Statement, any
Preliminary
Prospectus or the Prospectus, and the Underwriter confirms that the
Underwriter
Information is correct.
(c) (i) "ABS Informational and Computational Materials" shall have
the
meaning given such term in Item 1101 of Regulation AB.
(ii) "Approved Offering Materials" means the Preliminary
Prospectus.
(iii) "Contract of Sale" has the same meaning as in Rule 159 of
the 1933 Act Regulations and all Commission guidance relating to
Rule 159.
(iv) "Excluded Information" shall mean, with respect to (x) each
of the Registration Statement, the Approved Offering Materials and
the
Prospectus, the information identified by underlining or other
highlighting as
shown on Exhibit E, and (y) each Underwriter Prepared Issuer FWP
and each
Underwriter Free Writing Prospectus, all information contained
therein which is
restated in, or is corrected and superseded by, the Approved
Offering Materials.
(v) "Free Writing Prospectus" shall have the meaning given such
term in Rules 405 and 433 of the 1933 Act Regulations.
(vi) "Issuer Free Writing Prospectus" shall mean any Free Writing
Prospectus prepared by or on behalf of the Company and identified
by the Company
as an Issuer Free Writing Prospectus and relating to the
Certificates or the
offering thereof.
(vii) "Issuer Information" shall mean any information of the type
specified in clauses (1) - (5) of footnote 271 of Commission
Release No. 33-8591
(Securities Offering Reform), other than Underwriter Derived
Information.
Consistent with such definition, "Issuer Information" shall not be
deemed to
include any information in a Free Writing Prospectus solely by
reason of the
Company's review of the materials pursuant to Section 4.4(e) below
and,
consistent with Securities Offering Reform Questions and Answers,
November 30,
2005 promulgated by the staff of the Commission, "Issuer
Information" shall not
be deemed to include any information in a Free Writing Prospectus
solely by
reason that the Underwriter has agreed not to use such Free Writing
Prospectus
without consent of the Company.
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(viii) "Permitted Additional Materials" shall mean information
that is not ABS Informational and Computational Materials and (x)
that are
referred to in Section 4.4(c) so long as any Issuer Information
provided by the
Underwriter pursuant to Section 4.4(c) is limited to information
included within
the definition of ABS Informational and Computational Materials,
(y) that
constitute Certificate price, yield, weighted average life,
subscription or
allocation information, or a trade confirmation, or (z) otherwise
with respect
to which the Company has provided written consent to the
Underwriter to include
in a Free Writing Prospectus.
(ix) "Pool Information" means with respect to any Free Writing
Prospectus, the information with respect to the characteristics of
the Mortgage
Loans and administrative and servicing fees, as provided by or on
behalf of the
Company or Residential Funding to the Underwriter at the time most
recent to the
date of such Free Writing Prospectus.
(x) "Underwriter Derived Information" shall refer to information
of the type described in clause (5) of footnote 271 of Commission
Release No.
33-8591 (Securities Offering Reform) when prepared by the
Underwriter, including
traditional computational and analytical materials prepared by the
Underwriter.
(xi) "Underwriter Free Writing Prospectus" shall mean all Free
Writing Prospectuses prepared by or on behalf of the Underwriter
other than any
Underwriter Prepared Issuer FWP, including any Permitted Additional
Materials.
(xii) "Underwriter Prepared Issuer FWP" shall mean any Free
Writing Prospectus prepared by or on behalf of the Underwriter that
contains any
Issuer Information, including any Free Writing Prospectus or
portion thereof
prepared by or on behalf of the Underwriter that contains only a
description of
the final terms of the Certificates or of the offering of the
Certificates.
(xiii) "Written Communication" shall have the meaning given such
term in Rule 405 of the 1933 Act Regulations.
(d) The Company has been duly incorporated and is validly existing
as
a corporation in good standing under the laws of the State of
Delaware and has
the requisite corporate power to own its properties and to conduct
its business
as presently conducted by it.
(e) The Company was not, as of any date on or after which a bona
fide
offer (as used in Rule 164(h)(2) of the 1933 Act Regulations) of
the Certificate
is made an Ineligible Issuer, as such term is defined in Rule 405
of the 1933
Act Regulations. The Company shall comply with all applicable laws
and
regulations in connection with the use of Free Writing
Prospectuses, including
but not limited to Rules 164 and 433 of the 1933 Act Regulations
and all
Commission guidance relating to Free Writing Prospectuses,
including but not
limited to Commission Release No. 33-8591.
(f) This Agreement has been duly authorized, executed and delivered
by
the Company.
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(g) As of the Closing Date (as defined herein) the Certificates
will
conform in all material respects to the description thereof
contained in the
Prospectus and the representations and warranties of the Company in
the Pooling
and Servicing Agreement will be true and correct in all material
respects.
1.2
Residential Funding represents and warrants to, and agrees with you
that as of the Closing Date the representations and warranties of
Residential
Funding in the Pooling and Servicing Agreement will be true and
correct in all
material respects.
1.3
The Underwriter represents and warrants to and agrees with the
Company
and Residential Funding that:
(a) No purpose of the Underwriter relating to the purchase of the
Class R Certificates by the Underwriter is or will be to enable the
Company to
impede the assessment or collection of any tax.
(b) The Underwriter has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as
any of the
Certificates remain outstanding.
(c) The Underwriter has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so
long as any
of the Certificates remain outstanding.
(d) No purpose of the Underwriter relating to any sale of any of
the
Class R Certificates by the Underwriter will be to enable it to
impede the
assessment or collection of tax. In this regard, the Underwriter
hereby
represents to and for the benefit of the Company and Residential
Funding that
the Underwriter intends to pay taxes associated with holding the
Class R
Certificates (other than with respect to the portion of each of the
Class R
Certificates retained by Residential Funding), as they become due,
fully
understanding that it may incur tax liabilities in excess of any
cash flows
generated by the Class R Certificates.
(e) The Underwriter will, in connection with any transfer it makes
of
the Class R Certificates, obtain from its transferee the affidavit
required by
Section 5.02(f)(i)(B)(I) of the Pooling and Servicing Agreement,
will not
consummate any such transfer if it knows or believes that any
representation
contained in such affidavit is false and will provide the Trustee
with the
Certificate required by Section 5.02(f)(i)(B)(II) of the Pooling
and Servicing
Agreement.
(f) The Underwriter hereby certifies that (i) with respect to any
classes of Certificates issued in authorized denominations or
Percentage
Interests of less than a notional amount of $2,000,000 or a
Percentage Interest
of 20% the fair market value of each such Certificate sold to any
person on the
date of initial sale thereof by the Underwriter will not be less
than $100,000
and (ii) with respect to each class of Certificates to be
maintained on the
book-entry records of The Depository Trust Company ("DTC"), the
interest in each
such class of Certificates sold to any person on the date of
initial sale
thereof by the Underwriter will not be less than the minimum
denomination
indicated for such class of Certificates in the Prospectus
Supplement.
5
(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
Underwriter Prepared
Issuer FWP and Underwriter Information are accurate in all material
respects
(taking into account the assumptions explicitly set forth in such
Underwriter
Prepared Issuer FWP, except for any Excluded Information and to the
extent of
(x) any errors therein that are caused by errors or omissions in
the Pool
Information) or (y) information accurately extracted from the
Preliminary
Prospectus Supplement or any Issuer Free Writing Prospectus and
included in any
Underwriter Prepared Issuer FWP. The Underwriter Prepared Issuer
FWP delivered
to the Company, if any, constitute a complete set of all
Underwriter Prepared
Issuer FWP furnished to any investor by the Underwriter in
connection with the
offering of any Certificates.
(i) Prior to the Closing Date, the Underwriter shall notify the
Company and Residential Funding of the earlier of (x) the date on
which the
Prospectus Supplement is first used and (y) the time of the first
Contract of
Sale to which such Prospectus Supplement relates.
1.4
The Underwriter covenants and agrees to pay directly, or reimburse
the
Company or Residential Funding upon demand for (i) any and all
taxes (including
penalties and interest) owed or asserted to be owed by the Company
or
Residential Funding as a result of a claim by the Internal Revenue
Service that
the transfer of the Class R Certificates to the Underwriter
hereunder or any
transfer thereof by the Underwriter may be disregarded for federal
tax purposes
and (ii) any and all losses, claims, damages and liabilities,
including
attorney's fees and expenses, arising out of any failure of the
Underwriter to
make payment or reimbursement in connection with any such assertion
as required
in (i) above. In addition, the Underwriter acknowledges that on the
Closing Date
immediately after the transactions described herein it will be the
owner of the
Class R Certificates (other than a de minimis portion of the Class
R
Certificates to be held by Residential Funding) for federal tax
purposes, and
the Underwriter covenants that it will not assert in any proceeding
that the
transfer of the Class R Certificates from the Company to the
Underwriter should
be disregarded for any purpose.
6
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.
4.
Offering by Underwriter.
4.1
It is understood that you propose to offer the Certificates for
sale
to the public as set forth in the Prospectus and you agree that all
such offers
and sales by you shall be made in compliance with all applicable
laws and
regulations. Prior to the date of the first Contract of Sale made
based on the
Approved Offering Materials, you have not pledged, sold, disposed
of or
otherwise transferred any Certificate, Mortgage Loans or any
interest in any
Certificate.
4.2
It is understood that you will solicit offers to purchase the
Certificates as follows:
(a)
Prior to the time you have received the Approved Offering Materials
you may, in compliance with the provisions of this Agreement,
solicit offers to
purchase Certificates; provided, that you shall not accept any such
offer to
purchase a Certificate or any interest in any Certificate or
Mortgage Loan or
otherwise enter into any Contract of Sale for any Certificate, any
interest in
any Certificate or any Mortgage Loan prior to your conveyance of
Approved
Offering Materials to the investor.
(b)
any Written Communication relating to the Certificates made by an
Underwriter in compliance with the terms of this Agreement prior to
the time
such Underwriter has entered into a Contract of Sale for
Certificates with the
recipient shall prominently set forth the following statements (or
a
substantially similar statements approved by the Company):
7
The information in this free writing prospectus, if conveyed prior
to the
time of your contractual commitment to purchase any of the
Certificates,
supersedes any information contained in any prior similar materials
relating to the Certificates. The information in this free writing
prospectus is preliminary, and is subject to completion or change.
This
free writing prospectus is being delivered to you solely to provide
you
with information about the offering of the Certificates referred to
in this
free writing prospectus and to solicit an offer to purchase the
Certificates, when, as and if issued. Any such offer to purchase
made by
you will not be accepted and will not constitute a contractual
commitment
by you to purchase any of the Certificates, until we have accepted
your
offer to purchase Certificates.
The Certificates referred to in these materials are being sold
when, as and
if issued. The issuer is not obligated to issue such Certificates
or any
similar security and the underwriter's obligation to deliver such
Certificates is subject to the terms and conditions of the
underwriting
agreement with the issuer and the availability of such Certificates
when,
as and if issued by the issuer. You are advised that the terms of
the
Certificates, and the characteristics of the mortgage loan pool
backing
them, may change (due, among other things, to the possibility that
mortgage
loans that comprise the pool may become delinquent or defaulted or
may be
removed or replaced and that similar or different mortgage loans
may be
added to the pool, and that one or more classes of Certificates may
be
split, combined or eliminated), at any time prior to issuance or
availability of a final prospectus. You are advised that
Certificates may
not be issued that have the characteristics described in these
materials.
The underwriter's obligation to sell such Certificates to you is
conditioned on the mortgage loans and Certificates having the
characteristics described in these materials. If for any reason the
issuer
does not deliver such Certificates, the underwriter will notify
you, and
neither the issuer nor any underwriter will have any obligation to
you to
deliver all or any portion of the Certificates which you have
committed to
purchase, and none of the issuer nor any underwriter will be liable
for any
costs or damages whatsoever arising from or related to such
non-delivery.
4.3
It is understood that you will not enter into a Contract of Sale
with
any investor until the Approved Offering Materials have been
conveyed to the
investor with respect to the Certificates which are the subject of
such Contract
of Sale.
4.4
It is understood that you may prepare and provide to prospective
investors certain Free Writing Prospectuses, subject to the
following
conditions:
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, the Underwriter shall not
convey or
deliver any Written Communication to any person in connection with
the initial
offering of the
8
Certificates, unless such Written Communication (i) is made in
reliance on Rule
134 under the Act, (ii) constitutes a prospectus satisfying the
requirements of
Rule 430B under the Act or (iii) constitutes a Free Writing
Prospectus (as
defined in Section 1.1(c) above) consisting solely of (x)
information of a type
included within the definition of ABS Informational and
Computational Materials
(as defined below), (y) Permitted Additional Materials or (z)
information
accurately extracted from the Preliminary Prospectus Supplement or
any Issuer
Free Writing Prospectus and included in any Underwriter Prepared
Issuer FWP or
any Underwriter Free Writing Prospectus.
(b) The Underwriter shall comply with all applicable laws and
regulations in connection with the use of Free Writing
Prospectuses, including
but not limited to Rules 164 and 433 of the 1933 Act Regulations
and all
Commission guidance relating to Free Writing Prospectuses,
including but not
limited to Commission Release No. 33-8591.
(c) It is understood and agreed that all information provided by
the
Underwriter to or through Bloomberg or Intex or similar entities
for use by
prospective investors, or imbedded in any CDI file provided to
prospective
investors, or in any email or other electronic message provided to
prospective
investors, to the extent constituting a Free Writing Prospectus,
shall be deemed
for purposes of this Agreement to be an Underwriter Free Writing
Prospectus and
shall not be subject to the required consent of the Company set
forth in the
third sentence in Section 4.4(e). In connection therewith, the
Underwriter
agrees that it shall not provide any information constituting
Issuer Information
through the foregoing media unless (i) such information or
substantially similar
information is contained either in an Issuer Free Writing
Prospectus or in an
Underwriter Prepared Issuer FWP in compliance with Section 4.4(e)
or (ii) to the
extent such information consists of the terms of the Certificates,
the final
version of the terms of the Certificates or substantially similar
information is
contained either in an Issuer Free Writing Prospectus or in an
Underwriter
Prepared Issuer FWP in compliance with Section 4.4(e).
(d) All Free Writing Prospectuses provided to prospective
investors,
whether or not filed with the Commission, shall bear a legend
including the
following statement (or a substantially similar statement approved
by the
Company):
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SECURITIES AND EXCHANGE COMMISSION (THE SEC)
FOR
THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU
INVEST,
YOU SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND
OTHER DOCUMENTS THE DEPOSITOR HAS FILED WITH THE SEC FOR MORE
COMPLETE
INFORMATION ABOUT THE DEPOSITOR AND THE OFFERING. YOU MAY GET THESE
DOCUMENTS AT NO CHARGE BY VISITING EDGA
