EXHIBIT 1.3
FORM OF UNDERWRITING AGREEMENT (ITERATIVE)
RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
Asset-Backed Notes, Series 20[__]-[____]
Initial Principal Amount
Class
Initial Pass-Through Rate
------------------------
---------------
-------------------------
$[____]
Class A-1 Notes
[___]%
$[____]
Class A-2 Notes
[___]%
$[____]
Class A-3 Notes
[___]%
UNDERWRITING AGREEMENT
[________], 20[__]
[Name of Underwriter,]
[as representative of the Underwriters ("Representative")]
[Address of Underwriter]
Ladies and Gentlemen:
Residential Funding Mortgage Securities II, Inc., a Delaware
corporation
(the "Company"), proposes to sell to you (also referred to herein
as the
"Underwriter") Asset-Backed Notes, Series 20[__]-[____], Class A-1,
Class A-2
and 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 an indenture, dated as of
[_____] 1,
20[__] (the "Cut-off Date"), (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 [_____] [__], 20[__] (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, 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 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.
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(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 Notes 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
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. With respect to any class of Notes 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 Company as an Issuer Free Writing Prospectus and
relating to the Notes or the offering thereof.
(vii) "Issuer Information" shall mean any information of the
type specified in clauses (1) - (5) of footnote 271 of Commission
Release No. 33-8591 (Securities Offering Reform), other than
Underwriter Derived Information. Consistent with such definition,
"Issuer Information" shall not be deemed to include any information
in
a Free Writing Prospectus solely by reason of the Company's review
of
the materials pursuant to Section 4.4(e) below and, consistent with
Securities Offering Reform Questions and Answers, November 30, 2005
promulgated by the staff of the Commission, "Issuer Information"
shall
not be deemed to include any information in a Free Writing
Prospectus
solely by
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reason that the Underwriter has agreed not to use such Free Writing
Prospectus without consent of the Company.
(viii) "Permitted Additional Materials" shall mean
information that is not ABS Informational and Computational
Materials
and (x) that are referred to in Section 4.4(c) so long as any
Issuer
Information provided by the Underwriter pursuant to Section 4.4(c)
is
limited to information included within the definition of ABS
Informational and Computational Materials, (y) that constitute 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.
(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 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
not
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 Senior Notes
of
the aggregate amount of any Realized Losses allocable to the Senior
Notes 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 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
Notes or of the offering of the Notes after the final terms have
been
established for all classes of Senior Notes.
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(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
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 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
5
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 [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 Notes being herein called the
"Closing
Date"). Delivery of the Series 20[__]-[____], 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 compliance with all applicable laws
and
regulations. Prior to the date of the first Contract of
6
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
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
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
7
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.
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
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
8
THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE DEPOSITOR AND THE
OFFERING. YOU MAY GET THESE DOCUMENTS AT NO CHARGE BY VISITING
EDGAR ON THE SEC WEB SITE AT WWW.SEC.GOV. ALTERNATIVELY, THE
DEPOSITOR, ANY UNDERWRITER OR ANY DEALER PARTICIPATING IN THE
OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS AT NO CHARGE IF
YOU REQUEST IT BY CALLING TOLL-FREE 1-8[XX-XXX-XXXX] OR VIA EMAIL
AT ______________.
Each of the Underwriter and the Company shall have the right to
request
additional specific legends or notations to appear on any Free
Writing
Prospectus and shall have the right to require changes regarding
the use of
terminology and the right to determine the types of information
appearing
therein with the approval of the other (which shall not be
unreasonably
withheld).
(e) The Underwriter shall deliver to the Company and its counsel
(in such format as reasonably required by the Company), no later
than the
business day prior to the date of the required filing under Section
5.10,
an Underwriter Prepared Issuer FWP. To facilitate filing to the
extent
required by Section 5.10 or 5.11, as applicable, all Underwriter
Derived
Information shall be set forth in a document separate from any
Underwriter
Prepared Issuer FWP including Issuer Information.
(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 Co
