RENAISSANCE MORTGAGE ACCEPTANCE CORP.
Home Equity Loan Asset-Backed Certificates, Series [____]-[__]
UNDERWRITING AGREEMENT
[___________] [___], [_____]
[Underwriter]
Ladies and Gentlemen:
Renaissance Mortgage Acceptance Corp., a Delaware corporation
("Renaissance") has authorized the issuance and sale of Renaissance Home Equity
Loan Asset-Backed Certificates, Series [____]-[__], Class [___], [___], [___],
and [___] (collectively, the "Offered Certificates"), Class [___], [___], [___]
and [___] Certificates (the "Other Certificates" and together with the Offered
Certificates, the "Certificates"). The Certificates evidence in the aggregate
the beneficial interest in a pool of closed-end fixed and adjustable rate
mortgage loans (the "Mortgage Loans") consisting of two groups ("Loan Group 1"
and "Loan Group 2", respectively, and each a "Loan Group"). The Mortgage Loans
are secured by first or second deeds of trust and mortgages primarily on one- to
four-family residential properties.
Only the Offered Certificates are being purchased by [_____________]
(the "Underwriter," which term shall include you whether acting alone in the
sale of Certificates or as a member of an underwriting syndicate) at the prices
set forth in Schedule A, plus accrued interest.
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement"), dated as of [_________] [__], [____]
between Delta Funding Corporation, as seller (the "Seller"), [________________],
as servicer (the "Servicer"), Renaissance as Depositor and
[______________________], as trustee (the "Trustee"). The Certificates will
evidence fractional undivided interests in the property held in trust for the
holders of such Certificates (the "Trust"). The assets of the Trust will
include, among other things, Mortgage Loans identified as of [_________] [__],
[____] (the "Statistic Calculation Mortgage Loans"), additional closed-end fixed
and adjustable rate home equity loans that may be delivered on the Closing Date
(the "Additional Mortgage Loans," together with the Statistic Calculation
Mortgage Loans, the "Initial Mortgage Loans"), and subsequent Mortgage Loans to
be purchased by the Trust from the Seller from time to time on or prior to
[_________] [__], [____] (the "Subsequent Mortgage Loans," together with the
Initial Mortgage Loans, the "Mortgage Loans"). The aggregate undivided interest
in the Trust represented by the Offered Certificates initially will be equal to
$[__________] of principal, which represents 100% of the sum of the outstanding
principal balances of the Mortgage Loans as of the Cut-Off Date. The "Cut-Off
Date" for the Statistic Calculation Mortgage Loans is the close of business on
[_________] [__], [____], and the Cut-Off Date with respect to any additional
Mortgage Loan originated after the close of business on [_________] [__], [____]
will be the date of origination of such Mortgage Loan. A form of the Pooling and
Servicing Agreement has been filed as an exhibit to the Registration Statement
(hereinafter defined).
Elections will be made to treat certain assets of the Trust (exclusive
of the Net Rate Cap Fund and the LIBOR Carryover Fund) as a "real estate
mortgage investment conduit" (a "REMIC") for federal income tax purposes
creating a tiered REMIC structure. The Offered Certificates will represent
beneficial ownership of "regular interests" in a REMIC and the Class [___],
[___] and [___] Certificates (collectively, the "Residual Certificates") will
each represent beneficial ownership of "residual interests" in a REMIC.
The Offered Certificates are more fully described in a Registration
Statement which Renaissance has furnished to the Underwriter. Capitalized terms
used but not defined herein shall have the meanings given to them in the Pooling
and Servicing Agreement.
Pursuant to the Pooling and Servicing Agreement, Renaissance will
transfer to the Trust on the Closing Date all of its right, title and interest
in and to the Mortgage Loans, as of the applicable Cut-Off Date (including all
payments of principal due after the relevant Cut-Off Date and all payments of
interest received after the relevant Cut-Off Date other than payments of
principal and interest on the Mortgage Loans due on or before [_________] [__],
[____]) and the collateral securing each such Mortgage Loan.
Renaissance will cause [_______________________] (the "Insurer") to
issue an irrevocable and unconditional certificate guaranty insurance policy
(the "Policy") for the benefit of the Class [___], [___] and [___] Certificates
pursuant to the terms of an insurance agreement among the Insurer, Renaissance,
the Seller, the Servicer, and the Trustee (the "Insurance Agreement").
Renaissance will enter into an Indemnification Agreement, dated as of
[_________] [__], [____], among the Underwriter, Renaissance, the Seller, the
Servicer and the Insurer (the "Indemnification Agreement"), to govern the
liability of the several parties with respect to the losses resulting from
material misstatements or omissions contained in the Prospectus Supplement.
This Underwriting Agreement and the Pooling and Servicing Agreement and
the Insurance Agreement are referred to collectively herein as the "Agreements".
Section I. Representations and Warranties of Renaissance. Renaissance
represents and warrants to, and agrees with the Underwriter that:
A. A Registration Statement on Form S-3 (No. 333-96001) has (i) been
prepared by Renaissance in conformity with the requirements of the Securities
Act of 1933 (the "Securities Act") and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act. Copies of
such Registration Statement have been delivered by Renaissance to the
Underwriter. As used in this Agreement, "Effective Time" means the date and the
time as of which such Registration Statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time; "Registration Statement" means such
registration statement, at the Effective Time, including any documents
incorporated by reference therein at such time; and "Prospectus" means such
final prospectus, as first supplemented by a prospectus supplement (the
"Prospectus Supplement") relating to the Offered Certificates, as first filed
with the Commission pursuant to paragraph (1) or (4) or (5) of Rule 424(b) of
the Rules and Regulations. Reference made herein to the Prospectus shall be
deemed to refer to and include any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the date of the
Prospectus, and any reference to any amendment or supplement to the Prospectus
shall be deemed to refer to and include any document filed under the Securities
Exchange Act of 1934 (the "Exchange Act") after the date of the Prospectus and
incorporated by reference in the Prospectus; and any reference to any amendment
to the Registration Statement shall be deemed to include any report filed with
the Commission with respect to the Trust pursuant to Section 13(a) or 15(d) of
the Exchange Act after the date of the Prospectus that is incorporated by
reference in the Registration Statement. There are no contracts or documents of
Renaissance which are required to be filed as exhibits to the Registration
Statement pursuant to the Securities Act or the Rules and Regulations which have
not been so filed or incorporated by reference therein on or prior to the
Effective Date of the Registration Statement. The conditions for use of Form
S-3, as set forth in the General Instructions thereto, have been satisfied.
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B. The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission, as
the case may be, conform in all respects to the requirements of the Securities
Act and the Rules and Regulations. The Registration Statement, as of the
Effective Date thereof and of any amendment thereto, did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. The
Prospectus as of its date and as amended or supplemented as of the Closing Date
does not and will not contain any untrue statement of a material fact or 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
that no representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance upon and
in conformity with written information furnished to Renaissance in writing by
the Underwriter expressly for use therein.
C. The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, when such
documents become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or 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 that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information furnished
to Renaissance in writing by the Underwriter expressly for use therein.
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D. Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of
Renaissance, otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
E. Renaissance has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which its ownership or lease of property or the conduct of
its business requires such qualification and the failure to be so qualified
would have a material adverse effect on the financial condition or operations of
Renaissance, and has all power and authority necessary to own or hold its
properties, to conduct the business in which it is engaged and to enter into and
perform its obligations under the Agreements and to cause the Certificates to be
issued.
F. There are no actions, proceedings or investigations pending before
or threatened by any court, administrative agency or other tribunal to which
Renaissance is a party or of which any of its properties is the subject (a)
which if determined adversely to Renaissance would have a material adverse
effect on the business or financial condition of Renaissance, (b) asserting the
invalidity of the Agreements or the Certificates, (c) seeking to prevent the
issuance of the Certificates or the consummation by Renaissance of any of the
transactions contemplated by any of the Agreements or (d) which might materially
and adversely affect the performance by Renaissance of its obligations under, or
the validity or enforceability of, any of the Agreements or the Certificates.
G. This Agreement has been, and the Pooling and Servicing Agreement,
when executed and delivered as contemplated hereby and thereby will have been,
duly authorized, executed and delivered by Renaissance, and this Agreement
constitutes, and the Pooling and Servicing Agreement when executed and delivered
as contemplated herein, will constitute, legal, valid and binding instruments
enforceable against Renaissance in accordance with their respective terms,
subject as to enforceability to (x) applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors' rights
generally, (y) general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law), and (z) with respect to rights
of indemnity under this Agreement, limitations of public policy under applicable
securities laws.
H. The execution, delivery and performance of the Agreements by
Renaissance and the consummation of the transactions contemplated hereby and
thereby, and the issuance and delivery of the Certificates do not and will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which Renaissance is a
party, by which Renaissance is bound or to which any of the property or assets
of Renaissance or any of its subsidiaries is subject, nor will such actions
result in any violation of the provisions of the articles of incorporation or
by-laws of Renaissance or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over Renaissance or any
of its properties or assets.
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I. [_______________] is an independent public accountant with respect
to Renaissance as required by the Securities Act and the Rules and Regulations.
J. The direction by Renaissance to the Trustee to execute,
authenticate, issue and deliver the Certificates has been duly authorized by
Renaissance, and assuming the Trustee has been duly authorized to do so, when
executed, authenticated, issued and delivered by the Trustee in accordance with
the Pooling and Servicing Agreement, the Certificates will be validly issued and
outstanding and will be entitled to the benefits provided by the Pooling and
Servicing Agreement.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance of the Certificates and the sale of the
Certificates to the Underwriter, or the consummation by Renaissance of the other
transactions contemplated by the Agreements, except such consents, approvals,
authorizations, registrations or qualifications as may be required under State
securities or Blue Sky laws in connection with the purchase and distribution of
the Certificates by the Underwriter or as have been obtained.
L. At the time of execution and delivery of the Pooling and Servicing
Agreement, Renaissance will: (i) have equitable title to the Mortgage Loans
conveyed by Seller, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively, "Liens");
(ii) not have assigned to any person (other than the Trustee) any of its right,
title or interest in the Mortgage Loans (other than liens that have been
released at the time the Mortgage Loans are conveyed to the Trustee), in the
Pooling and Servicing Agreement; and (iii) have the power and authority to sell
its interest in the Mortgage Loans to the Trustee and to sell the Offered
Certificates to the Underwriter. Upon execution and delivery of the Pooling and
Servicing Agreement by the Trustee, the Trustee will have acquired beneficial
ownership of all of Renaissance's right, title and interest in and to the
Mortgage Loans. Upon delivery to the Underwriter of the Offered Certificates,
the Offered Certificates will be free of any Liens.
M. Neither Renaissance nor the Trust created by the Pooling and
Servicing Agreement is an "investment company" within the meaning of such term
under the Investment Company Act of 1940 (the "1940 Act") and the rules and
regulations of the Commission thereunder.
N. At the Closing Date, the Certificates and the Pooling and Servicing
Agreement will conform in all material respects to the descriptions thereof
contained in the Prospectus.
O. At the Closing Date, the Offered Certificates (other than the Class
[___],[___] and [___] Certificates) shall have been rated "AAA" by Standard &
Poor's Ratings Services ("Standard & Poor's"), the Class [___] Certificates
shall have been rated "AA" by Standard & Poor's, the Class [___] Certificates
shall have been rated "A" by Standard & Poor's, the Class [___] Certificates
shall have been rated "BBB" by Standard & Poor's, the Offered Certificates
(other than the Class [___] Certificates, the Class [___] Certificates and the
Class [___] Certificates) shall have been rated "Aaa" by ▇▇▇▇▇'▇ Investors
Service ("Moody's"), the Class M-1 Certificates shall have been rated "Aa3" by
Moody's, the Class M-2 Certificates shall have been rated "A3" by Moody's, the
Class B Certificates shall have been rated "Baa3" by Moody's and the Offered
Certificates (other than the Class [___] Certificates, the Class [___]
Certificates and the Class [___] Certificates) shall have been rated "AAA" by
Fitch, Inc. ("Fitch") and the Class [___],[___] and Class [___] Certificates
shall have been rated at least "AA", "A" and "BBB," respectively, by Fitch.
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P. Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of the Agreements and the Certificates have
been paid or will be paid at or prior to the Closing Date.
Q. Renaissance possesses all material licenses, certificates,
authorities or permits issued by the appropriate State, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Prospectus, and Renaissance has not received notice
of any proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which if decided adversely to
Renaissance would, singly or in the aggregate, materially and adversely affect
the conduct of its business, operations or financial condition.
R. As of the applicable Cut-Off Date, each of the Mortgage Loans will
meet the eligibility criteria described in the Prospectus and will conform in
all material respects to the descriptions thereof contained in the Prospectus.
S. At the Closing Date, each of the representations and warranties of
Renaissance set forth in Section 2.03 of the Pooling and Servicing Agreement and
in Section 3.01 of the Insurance Agreement will be true and correct in all
material respects.
Any certificate signed by an officer of Renaissance and delivered to
the Underwriter or counsel for the Underwriter in connection with an offering of
the Certificates shall be deemed, a representation and warranty as to the
matters covered thereby to each person to whom the representations and
warranties in this Section I are made.
Section II. Purchase and Sale. The commitment of the Underwriter to
purchase the Offered Certificates pursuant to this Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the satisfaction of the terms and conditions
set forth herein. Renaissance agrees to instruct the Trustee to issue and agrees
to sell to the Underwriter, and the Underwriter agrees (except as provided in
Sections X and XI hereof) to purchase from Renaissance, the Offered Certificates
at the purchase prices set forth in Schedule A, plus, in the case of the Offered
Certificates other than the Class [___] and Class [___] Certificates, accrued
interest from the Closing Date, and in the case of the Class [___] and Class
[___] Certificates, accrued interest from [________] [__], [____].
Section III. Delivery and Payment. Delivery of and payment for the
Offered Certificates to be purchased by the Underwriter shall be made at the
offices of Stroock & Stroock & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, or at such other place as shall be agreed upon by the Underwriter and
Renaissance at 10:00 a.m. New York City time on [________] [__], [____], or at
such other time or date as shall be agreed upon in writing by the Underwriter
and Renaissance (such date being referred to as the "Closing Date"). Payment
shall be made to Renaissance by wire transfer of same day funds payable to the
account of Renaissance. Delivery of the Offered Certificates shall be made to
the Underwriter for the account of the Underwriter against payment of the
purchase price thereof. The Offered Certificates shall be in such denominations
and registered in such names as the Underwriter may request in writing at least
two Business Days prior to the Closing Date. The Offered Certificates will be
made available for examination by the Underwriter no later than 2:00 p.m. New
York City time on the first Business Day prior to the Closing Date.
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Section IV. Offering by the Underwriter. It is understood that, subject
to the terms and conditions hereof, the Underwriter proposes to offer the
Offered Certificates for sale to the public as set forth in the Prospectus.
Section V. Covenants of Renaissance. Renaissance agrees as follows:
A. To prepare the Prospectus in a form approved by the Underwriter and
to file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the time required thereby; to make no further amendment or any
supplement to the Registration Statement or to the Prospectus prior to the
Closing Date except as permitted herein; to advise the Underwriter, promptly
after it receives notice thereof, of the time, during the period that a
Prospectus is required to be delivered in connection with the offer and sale of
the Offered Certificates, when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Underwriter with copies
thereof; to file promptly all reports and any definitive proxy or information
statements required to be filed by Renaissance with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and, for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Offered Certificates, to promptly
advise the Underwriter of its receipt of notice of the issuance by the
Commission of any stop order or of: (i) any order preventing or suspending the
use of the Prospectus; (ii) the suspension of the qualification of the Offered
Certificates for offering or sale in any jurisdiction; (iii) the initiation of
or threat of any proceeding for any such purpose; (iv) any request by the
Commission for the amending or supplementing of the Registration Statement or
the Prospectus or for additional information. In the event of the issuance of
any stop order or of any order preventing or suspending the use of the
Prospectus or suspending any such qualification, Renaissance promptly shall use
its best efforts to obtain the withdrawal of such order by the Commission.
B. To furnish promptly to the Underwriter and to counsel for the
Underwriter a signed copy of the Registration Statement as originally filed with
the Commission, including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriter such number of the following
documents as the Underwriter shall reasonably request: (i) conformed copies of
the Registration Statement as originally filed with the Commission and each
amendment thereto (in each case including exhibits); (ii) the Prospectus and any
amended or supplemented Prospectus; and (iii) any document, filed by Renaissance
and incorporated by reference in the Prospectus (including exhibits thereto). If
the delivery of a prospectus is required at any time prior to the expiration of
nine months after the Effective Time in connection with the offering or sale of
the Offered Certificates, and if at such time any events shall have occurred as
a result of which the Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to comply with
the Securities Act or the Exchange Act, Renaissance shall notify the Underwriter
and, upon the request of the Underwriter, shall file such document and prepare
and furnish without charge to the Underwriter and to any dealer in securities as
many copies as the Underwriter may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which corrects such
statement or omission or effects such compliance, and in case the Underwriter is
required to deliver a Prospectus in connection with sales of any of the Offered
Certificates at any time nine months or more after the Effective Time, upon the
request of the Underwriter but at its expense, Renaissance shall prepare and
deliver to the Underwriter as many copies as the Underwriter may reasonably
request of an amended or supplemented Prospectus complying with Section 10(a)(3)
of the Securities Act.
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Neither the Underwriter's consent to, nor the Underwriter's delivery
of, any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section VII.
D. To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of Renaissance or the Underwriter, be required by the
Securities Act or requested by the Commission.
E. Prior to filing with the Commission any (i) supplement to the
Prospectus or (ii) Prospectus pursuant to Rule 424 of the Rules and Regulations,
to furnish a copy thereof to the Underwriter and counsel for the Underwriter and
obtain the consent of the Underwriter to the filing.
F. To make generally available to holders of the Offered Certificates
as soon as practicable, but in any event not later than 90 days after the close
of the period covered thereby, a statement of earnings of the Trust (which need
not be audited) complying with Section 11(a) of the Securities Act and the Rules
and Regulations (including, at the option of Renaissance, Rule 158) and covering
a period of at least twelve consecutive months beginning not later than the
first day of the first fiscal quarter following the Closing Date.
G. To use its best efforts, in cooperation with the Underwriter, to
qualify the Offered Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Underwriter may designate, and maintain or cause to be maintained such
qualifications in effect for as long as may be required for the distribution of
the Offered Certificates; provided that Renaissance shall not be required to
become subject to any general consent to service of process or jurisdiction in
any jurisdiction in which it is not subject as of the date of this Agreement.
Renaissance will file or cause the filing of such statements and reports as may
be required by the laws of each jurisdiction in which the Offered Certificates
have been so qualified.
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H. So long as the Offered Certificates shall be outstanding, to deliver
to the Underwriter as soon as such statements are furnished to the Trustee: (i)
the annual statement as to compliance delivered to the Trustee pursuant to
Section 3.09 of the Pooling and Servicing Agreement; (ii) the annual statement
of a firm of independent public accountants furnished to the Trustee pursuant to
Section 3.10 of the Pooling and Servicing Agreement; and (iii) the Monthly
Statement furnished to the Certificateholders pursuant to Section 5.03 of the
Pooling and Servicing Agreement.
I. To apply the net proceeds from the sale of the Offered Certificates
in the manner set forth in the Prospectus.
J. To file with the Commission within fifteen days of the issuance of
the Certificates a current report on Form 8-K setting forth specific information
concerning the Offered Certificates and the Mortgage Loans to the extent that
such information is not set forth in the Prospectus and also to file with the
Commission a current report on Form 8-K setting forth all Computational
Materials, ABS Term Sheets and Collateral Term Sheets (as each defined in
Section VI hereof) provided to Renaissance by any Underwriter within the
applicable time periods allotted for such filing pursuant to the No-Action
Letters (as defined in Section VI hereof); provided that Renaissance's
obligation to file such Computational Materials, ABS Term Sheets and Collateral
Term Sheets within such time shall be subject to each Underwriter's timely
performance of its obligations under Section VI.
K. In connection with any Computational Materials, ABS Term Sheets or
Collateral Term Sheets provided by an Underwriter pursuant to Section VI, to
receive a letter from [____________] certified public accountants, satisfactory
in form and substance to Renaissance, to the effect that such accountants have
performed certain specified procedures, all of which have been agreed to by
Renaissance, as a result of which they have determined that the information
included in the Computational Materials, ABS Term Sheets or Collateral Term
Sheets (if any), provided by the Underwriter(s) to Renaissance for filing on
Form 8-K pursuant to Section VI and subsection J, is accurate except as to such
matters that are not deemed by Renaissance to be material. The foregoing letter
shall be obtained at the expense of any Underwriter who has prepared such
Computational Materials, ABS Term Sheets or Collateral Term Sheets.
L. In the event that an Underwriter must prepare corrected
Computational Materials, ABS Term Sheets or Collateral Term Sheets pursuant to
Section VI(d), to file any corrected Computational Materials, ABS Term Sheets or
Collateral Term Sheets no later than two days following receipt thereof.
M. Unless the Underwriter shall otherwise have given its written
consent, no pass-through certificates backed by home equity loans or other
similar securities representing interest in or secured by other mortgage-related
assets originated or owned by Renaissance shall be publicly offered or sold nor
shall Renaissance enter into any contractual arrangements that contemplate the
public offering or sale of such securities for a period of seven (7) Business
Days following the commencement of the offering of the Offered Certificates to
the public.
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Section VI. Investor Information. The Underwriter may prepare and
provide to prospective investors certain Computational Materials, ABS Term
Sheets or Collateral Term Sheets (collectively "Investor Materials") in
connection with its offering of the Offered Certificates, subject to the
following conditions:
A. Such Underwriter shall comply with the requirements of the No-Action
Letter of May 20, 1994, issued by the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance
Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated and ▇▇▇▇▇▇ Structured Asset
Corporation, as made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities Association dated
May 24, 1994 (collectively, the "▇▇▇▇▇▇/PSA Letter"), and the requirements of
the No-Action Letter of February 17, 1995, issued by the Commission to the
Public Securities Association (the "PSA Letter" and, together with the
▇▇▇▇▇▇/PSA Letter, the "No-Action Letters").
B. For purposes hereof, "Computational Materials" shall have the
meaning given such term in the No-Action Letters, but shall include only those
Computational Materials that have been prepared or delivered to prospective
investors by the Underwriter. For purposes hereof, "ABS Term Sheets" and
"Collateral Term Sheets" shall have the meanings given such terms in the PSA
Letter but shall include only those ABS Term Sheets or Collateral Term Sheets
that have been prepared or delivered to prospective investors by any
Underwriter.
C. The Underwriter shall provide to Renaissance any Computational
Materials, ABS Term Sheets or Collateral Term Sheets which are provided to
investors, together with a letter, reasonably acceptable to the Underwriter and
Renaissance, from [_____________], with regard to such Computational Materials,
ABS Term Sheets or Collateral Term Sheets, no later than the two Business Days
preceding the date such Computational Materials, ABS Term Sheets or Collateral
Term Sheets are required to be filed pursuant to the applicable No-Action
Letters. The Underwriter may provide copies of the foregoing in a consolidated
or aggregated form including all information required to be filed. The materials
so furnished shall be furnished to Renaissance in hard copy and on computer
disk.
D. In the event that Renaissance or the Underwriter discovers an error
in the Computational Materials, ABS Term Sheets or Collateral Term Sheets, the
Underwriter that prepared such material shall prepare corrected Computational
Materials, ABS Term Sheets or Collateral Term Sheets and deliver it to the
Company for filing pursuant to Section V(L).
E. The Underwriter agrees that if it desires to furnish to potential
investors materials, which if delivered separately would be Collateral Term
Sheets, it shall do so only as a component of Computational Materials delivered
to such prospective investors.
F. The Underwriter furnishing such Investor Materials represents to
Renaissance as follows:
1. The Investor Materials do not contain an untrue statement
of a material fact or, when read in conjunction with the Prospectus as an
integral document, omit to state a material fact necessary to make such
statements, in light of the circumstances under which they were made, not
misleading; provided, however, that no representation is made (x) with respect
to any untrue statements or omissions that are the result of untrue statements
or omissions in Seller Provided Information or (y) that the Prospectus
(exclusive of such Investor Materials) does not include any untrue statements of
a material fact and does not omit to state any material facts necessary to make
the statements contained therein, in light of the circumstances under which they
were made, not misleading.
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2. The Investor Materials contain customary legends referring
to the assumptions on which they are based and the absence of assurances or
representations as to the actual rate or timing of payments on any of the
Mortgage Loans or the performance characteristics of the Certificates, and a
statement to the effect that the Investor Materials were prepared by the
applicable Underwriter based on information regarding the Mortgage Loans
furnished by the Issuer.
3. Neither Renaissance nor any of its affiliates participated
in the preparation of the Investor Materials other than by supplying Seller
Provided Information to such Underwriter.
Section VII. Conditions to the Underwriter's Obligations. The
obligation of the Underwriter to purchase the Offered Certificates pursuant to
this Agreement is subject to: (i) the accuracy on and as of the Closing Date of
the representations and warranties on the part of Renaissance herein contained;
(ii) the performance by Renaissance of all of its obligations hereunder; and
(iii) the following conditions as of the Closing Date:
A. The Underwriter shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission. Any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus shall
have been complied with.
B. The Underwriter shall not have discovered and disclosed to
Renaissance on or prior to the Closing Date that the Registration Statement or
the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact or omits to state a fact which, in the opinion of Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriter, is material and is
required to be stated therein or is necessary to make the statements therein not
misleading.
C. All corporate proceedings and other legal matters relating to the
authorization, form and validity of the Agreements the Offered Certificates, the
Registration Statement and the Prospectus, and all other legal matters relating
to this Agreement and the transactions contemplated hereby shall be satisfactory
in all respects to counsel for the Underwriter, and Renaissance shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
▇. ▇▇▇▇▇▇▇ & Stroock & ▇▇▇▇▇ LLP shall have furnished to the
Underwriter their written opinion, as special counsel to Renaissance, addressed
to the Underwriter and dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect that:
11
1. Renaissance has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware and
has all requisite corporate power and authority to own its properties and carry
on its business and to execute, deliver and perform the Pooling and Servicing
Agreement, the Indemnification Agreement and the Insurance Agreement and cause
the issuance of the Certificates.
2. Each of the Pooling and Servicing Agreement and the
Insurance Agreement has been duly authorized, executed and delivered by
Renaissance, and constitutes the legal, valid and binding agreements of
Renaissance, enforceable against Renaissance in accordance with its terms,
subject to the effect of (x) bankruptcy, insolvency, moratorium, fraudulent
conveyance and similar laws relating to creditors' rights generally and court
decisions with respect thereto and (y) public policy considerations regarding
the enforcement of the indemnity provisions in the Indemnification Agreement
(other than the application of equitable principles in any proceeding, whether
at law or in equity, as to which no opinion need be expressed).
3. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States or any other jurisdiction is required for the issuance of the
Certificates and the sale of the Certificates to the Underwriter, or the
consummation by Renaissance of the other transactions contemplated by the
Agreements, except such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under State securities or Blue Sky laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by Renaissance of its
obligations under, or the validity or enforceability of, the Agreements.
4. The conditions to the use by Renaissance of a registration
statement on Form S-3 under the Securities Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the Registration
Statement and the Prospectus.
5. The Registration Statement and any amendments thereto have
become effective under the 1933 Act; to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement has been
issued and not withdrawn and no proceedings for that purpose have been
instituted or threatened and not terminated; and the Registration Statement, the
Prospectus and each amendment or supplement thereto, as of their respective
effective or issue dates (other than the information relating to the Certificate
Insurer and the financial and statistical information contained or incorporated
therein, as to which such counsel need express no opinion), complied as to form
in all material respects with the applicable requirements of the Securities Act
and the rules and regulations thereunder.
6. To the best of such counsel's knowledge, there are no
material contracts, indentures or other documents of a character required to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto.
7. The statements in the base Prospectus under the headings,
"Certain Legal Aspects of Loans", "ERISA Considerations" and "Federal Income Tax
Considerations", and the statements in the Prospectus Supplement under the
headings "Federal Income Tax Considerations" and "ERISA Considerations", to the
extent that they constitute matters of federal law or legal conclusions with
respect thereto, have been reviewed by such counsel and are correct in all
material respects with respect to those consequences or aspects that are
discussed.
12
8. The Pooling and Servicing Agreement conforms in all
material respects to the description thereof contained in the Prospectus and is
not required to be qualified under the Trust Indenture Act of 1939, as amended.
9. Neither Renaissance nor the Trust is an "investment
company" or under the control of an "investment company" as such terms are
defined in the 1940 Act.
10. Each of REMIC I, REMIC II and REMIC III, as described in
the Pooling and Servicing Agreement will qualify to be treated as a "real estate
mortgage investment conduit" (the "REMIC") as defined in the Internal Revenue
Code of 1986, as amended (the "Code"), the Offered Certificates will be treated
as "regular interests" in a REMIC and the Residual Certificates will each be
treated as the single class of "residual interests in a REMIC assuming: (i) an
election is made to treat each REMIC as a REMIC, (ii) compliance with the
Pooling and Servicing Agreement and (iii) compliance with changes in the law,
including any amendments to the Code or applicable Treasury regulations
thereunder.
11. The Offered Certificates will, when issued, conform to the
description thereof contained in the Prospectus.
Such counsel shall also have furnished to the Underwriter a written
statement, addressed to the Underwriter and dated the Closing Date, in form and
substance satisfactory to the Underwriter to the effect that no facts have come
to the attention of such counsel which lead them to believe that: (a) the
Registration Statement (other than the Derived Information (as defined below)
and the financial and statistical information contained or incorporated therein,
as to which no opinion shall be given) at the time it became effective, or at
the date of such opinion, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (b) the
Prospectus (other than (i) the Derived Information, and (ii) the financial,
statistical and numerical information contained or incorporated therein, as to
which no opinion shall be expressed), contains an untrue statement of a material
fact or omitted or omits 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.
E. The Underwriter shall have received the favorable opinion, dated the
Closing Date, of Stroock & Stroock & ▇▇▇▇▇ LLP, special counsel for Renaissance,
addressed to Renaissance and satisfactory to Standard & Poor's, ▇▇▇▇▇'▇ and
Fitch (together, the "Rating Agencies") and the Underwriter, with respect to
certain matters relating to the transfer of the Mortgage Loans to Renaissance
and from Renaissance to the Trust, and such counsel shall have consented to
reliance on such opinion by the Rating Agencies as though such opinion had been
addressed to them.
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F. Counsel for Renaissance shall have furnished to the Underwriter its
written opinion, addressed to the Underwriter and dated the Closing Date, in
form and substance satisfactory to the Underwriter, to the effect that:
1. Renaissance has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware, and has
all power and authority necessary to own or hold its properties and to conduct
the business in which it is engaged and to enter into and perform its
obligations under the Agreements, and to cause the issuance of the Certificates.
2. The execution, delivery and performance of the Agreements
by Renaissance, and the consummation of the transactions contemplated thereby,
do not and will not result in a material breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which Renaissance
is a party or by which Renaissance is bound or to which any of the property or
assets of Renaissance is subject, nor will such actions result in any violation
of the provisions of the articles of incorporation or by-laws of Renaissance or
any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over Renaissance or any of its properties or assets
(except for such conflicts, breaches, violations and defaults as would not have
a material adverse effect on the ability of Renaissance to perform its
obligations under the Agreements).
3. There are no actions, proceedings or investigations pending
before or, to their knowledge, threatened by any court, administrative agency or
other tribunal to which Renaissance is a party or of which any of its properties
is the subject: (a) which if determined adversely to Renaissance would have a
material adverse effect on the business, results of operations or financial
condition of Renaissance; (b) asserting the invalidity of the Agreements or the
Certificates; (c) seeking to prevent the issuance of the Certificates or the
consummation by Renaissance of any of the transactions contemplated by the
Agreements, as the case may be; or (d) which might materially and adversely
affect the performance by Renaissance of its obligations under, or the validity
or enforceability of, the Agreements.
4. Each of the Agreements has been duly authorized, executed
and delivered by Renaissance and, assuming the due authorization, execution and
delivery of the Agreements by the other parties thereto, each of the Agreements
constitutes a valid and binding obligation of Renaissance, enforceable against
Renaissance in accordance with their respective terms.
G. The Underwriter shall have received the favorable opinion, dated the
Closing Date, of the in-house counsel to [_______________________], addressed to
the Underwriter and in form and scope satisfactory to counsel to the
Underwriter, to the effect that:
1. The Trustee is a national banking association with trust
powers, duly organized and validly existing in good standing under the laws of
the United States, and has all requisite power and authority to enter into the
Pooling and Servicing Agreement and perform its obligations thereunder.
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2. The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee and constitute the legal,
valid and binding obligations of the Trustee, enforceable against the Trustee in
accordance with their respective terms.
3. No approval, authorization or other action by, or filing
with, any court or governmental agency or authority having jurisdiction over the
banking or trust powers of the Trustee is required in connection with its
execution and delivery of the Pooling and Servicing Agreement according to their
terms.
4. The execution, delivery and performance of the Pooling and
Servicing Agreement do not result in a violation of (a) any law or regulation of
the United States governing the banking or trust powers of the Trustee or any
order, writ, judgment or decree of any court, arbitrator or governmental
authority applicable to the Trustee or any of its assets or (b) the articles of
association or by-laws of the Trustee.
5. The Certificates have been authenticated by the Trustee in
accordance with the terms of the Pooling and Servicing Agreement.
6. There are actions, proceedings or investigations pending
or threatened against or affecting the Trustee before or by any court,
arbitrator, administrative agency or other governmental authority which, if
decided adversely to the Trustee, would materially and adversely affect the
ability of the Trustee to carry out the transactions contemplated in the Pooling
and Servicing Agreement or the Insurance Agreement.
H. The Underwriter shall have received the favorable opinion or
opinions, dated the date of the Closing Date, of counsel for the Underwriter,
with respect to the issue and sale of the Certificates, the Registration
Statement, this Agreement, the Prospectus and such other related matters as the
Underwriter may reasonably require.
I. The Underwriter shall have received the favorable opinion or
opinions, dated the Closing Date, of counsel for the Certificate Insurer,
addressed to the Underwriter and in form and scope satisfactory to counsel to
the Underwriter, to the effect that:
1. The Certificate Insurer is a stock insurance corporation,
duly incorporated and validly existing under the laws of the State of New York
and is licensed and has the power and authority to issue the Policy under the
laws of the State of New York.
2. The Policy has been duly authorized, executed and delivered
and is the valid and binding obligation of the Certificate Insurer enforceable
in accordance with its terms, except that the enforcement of the Policy may be
limited by laws relating to bankruptcy, insolvency, reorganization, moratorium,
receivership and other similar laws affecting creditors' rights generally and by
general principles of equity (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
3. The Certificate Insurer has the power and authority to
perform its obligations under the Insurance Agreement and the Indemnification
Agreement and the Insurance Agreement and the Indemnification Agreement have
been duly executed and are the valid and binding obligations of the Certificate
Insurer, enforceable in accordance with its terms, except that the enforcement
of the Insurance Agreement and the Indemnification Agreement may be limited by
laws relating to bankruptcy, insolvency, reorganization, moratorium,
receivership and other similar laws affecting creditors' rights generally and by
general principles of equity and, in the case of the Indemnification Agreement,
subject to principles of public policy limiting the right to enforce the
indemnification provisions contained therein insofar as such provisions relate
to indemnification for liabilities arising under the securities laws.
15
4. No consent, approval, authorization, filing or order of any
state or federal court or governmental agency or body is required on the part of
the Certificate Insurer the lack of which would adversely affect the validity
and enforceability of the Policy.
5. The execution, delivery and performance by the Certificate
Insurer of its obligations under the Policy do not contravene any provision of
the charter or by-laws of the Certificate Insurer. The execution, delivery and
performance by the Certificate Insurer of its obligations under the Policy do
not, to the extent that either of the following would affect the validity or
enforceability of the Policy, (a) contravene any law or government regulation or
order presently binding on the Certificate Insurer or (b) contravene any
provision of or constitute a default under any indenture, contract or other
instrument to which the Certificate Insurer is a party or by which it is bound.
6. To the extent that the Policy constitutes a security within
the meaning of Section 2(l) of the Securities Act, it is a security exempt from
the registration requirements of the Securities Act.
7. The description of the Certificate Insurer in the
Prospectus Supplement under the heading "The Certificate Insurer" does not
contain any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that no opinion
need be expressed as to the accuracy of any financial statements or other
financial or statistical data contained in or omitted from the Prospectus
Supplement, including such statements or other information included under such
caption or in any appendix to the Prospectus Supplement.
J. Renaissance shall have furnished to the Underwriter a certificate,
dated the Closing Date, of its Chairman of the Board, its President or a Vice
President stating that:
1. The representations and warranties of Renaissance in
Section I of this Agreement are true and correct as of the Closing Date; and
Renaissance has complied with all its agreements contained herein.
2. Such person has carefully examined the Registration
Statement and the Prospectus and, in his opinion (x) as of the Effective Date,
the Registration Statement and Prospectus did not include an untrue statement of
a material fact and did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and (y)
since the Effective Date no event has occurred which should have been set forth
in a supplement or amendment to the Registration Statement or the Prospectus.
K. The Trustee shall have furnished to the Underwriter a certificate of
the Trustee, signed by one or more duly authorized officers of the Trustee,
dated the Closing Date, as to the due authorization, execution and delivery of
the Pooling and Servicing Agreement by the Trustee and the acceptance by the
Trustee of the trusts created by the Pooling and Servicing Agreement and the due
execution, authentication and delivery of the Certificates by the Trustee under
the Pooling and Servicing Agreement and such other matters as the Underwriter
shall reasonably request.
16
L. At the Closing Date, the Offered Certificates (other than the Class
[___],[___] and [___] Certificates) shall have been rated "AAA" by Standard &
Poor's, the Class [___] Certificates shall have been rated "AA" by Standard &
Poor's, the Class M-2 Certificates shall have been rated "A" by Standard &
Poor's, the Class [___] Certificates shall have been rated "BBB" by Standard &
Poor's, the Offered Certificates (other than the Class [___] Certificates, the
Class [___] Certificates and the Class [___] Certificates) shall have been rated
"Aaa" by ▇▇▇▇▇'▇, the Class [___] Certificates shall have been rated "Aa3" by
▇▇▇▇▇'▇, the Class [___] Certificates shall have been rated "A3" by ▇▇▇▇▇'▇, the
Class [___] Certificates shall have been rated "Baa3" by ▇▇▇▇▇'▇ and the Offered
Certificates (other than the Class [___],[___] [___] and the Class [___]
Certificates) shall have been rated "AAA" by Fitch and the Class [___],[___] and
Class [___] Certificates shall have been rated at least "AA", "A" and "BBB,"
respectively, by Fitch.
M. The Underwriter shall have received at or before the Closing Date,
from [____________], letters, dated as of the date of this Agreement,
substantially in the form previously agreed to (A) confirming that they are
independent public accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, and (B) stating
the conclusions and findings of such firm with respect to the financial
information and other matters covered by its letter.
N. Prior to the Closing Date, counsel for the Underwriter shall have
been furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Certificates as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained, and
all proceedings taken by Renaissance in connection with the issuance and sale of
the Certificates as herein contemplated shall be satisfactory in form and
substance to the Underwriter and counsel for the Underwriter.
O. Subsequent to the execution and delivery of this Agreement none of
the following shall have occurred: (i) trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the over-the-counter
market shall have been suspended or minimum prices shall have been established
on either of such exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having jurisdiction;
(ii) a banking moratorium shall have been declared by Federal or state
authorities; (iii) the United States shall have become engaged in hostilities,
there shall have been an escalation of hostilities involving the United States
or there shall have been a declaration of a national emergency or war by the
United States; or (iv) there shall have occurred such a material adverse change
in general economic, political or financial conditions (or the effect of
international conditions on the financial markets of the United States shall be
such) as to make it, in the judgment of the Underwriter, impractical or
inadvisable to proceed with the public offering or delivery of the Certificates
on the terms and in the manner contemplated in the Prospectus.
17
P. Counsel for the Servicer shall have furnished to the Underwriter its
written opinion, addressed to the Underwriter and dated the Closing Date, in
form and substance satisfactory to the Underwriter, to the effect that:
1. The Servicer has been duly incorporated and is validly
existing as a corporation in good standing under the laws of New York, and has
all power and authority necessary to own or hold its properties and to conduct
the business in which it is engaged and to enter into and perform its
obligations under the Pooling and Servicing Agreement, and to cause the issuance
of the Certificates.
2. The execution, delivery and performance of the Pooling and
Servicing Agreement by the Servicer, and the consummation of the transactions
contemplated thereby, do not and will not result in a material breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Servicer is a party or by which the Servicer is bound or
to which any of the property or assets of the Servicer is subject, nor will such
actions result in any violation of the provisions of the articles of
incorporation or by-laws of the Servicer or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Servicer or any of its properties or assets (except for such conflicts,
breaches, violations and defaults as would not have a material adverse effect on
the ability of the Servicer to perform its obligations under the Pooling and
Servicing Agreement).
3. There are no actions, proceedings or investigations pending
before or, to their knowledge, threatened by any court, administrative agency or
other tribunal to which the Servicer is a party or of which any of its
properties is the subject: (a) which if determined adversely to the Servicer
would have a material adverse effect on the business, results of operations or
financial condition of the Servicer; (b) asserting the invalidity of the Pooling
and Servicing Agreement or the Certificates; (c) seeking to prevent the issuance
of the Certificates or the consummation by the Servicer of any of the
transactions contemplated by the Pooling and Servicing Agreement, as the case
may be; or (d) which might materially and adversely affect the performance by
the Servicer of its obligations under, or the validity or enforceability of, the
Pooling and Servicing Agreement.
4. The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Servicer and, assuming the due
authorization, execution and delivery of the Pooling and Servicing Agreement by
the other parties thereto, the Pooling and Servicing Agreement constitutes a
valid and binding obligation of the Servicer, enforceable against the Servicer
in accordance with its terms.
Q. Counsel for the Seller shall have furnished to the Underwriter its
written opinion, addressed to the Underwriter and dated the Closing Date, in
form and substance satisfactory to the Underwriter, as to the same matters
addressed in Section F hereof.
18
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
If any condition specified in this Section VII shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriter by notice to Renaissance at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section VIII.
Section VIII. Payment of Expenses. As between Renaissance and the
Underwriter, Renaissance agrees to pay: (a) the costs incident to the
authorization, issuance, sale and delivery of the Offered Certificates and any
taxes payable in connection therewith; (b) the cost incident to the
underwriter's due diligence exercises; (c) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (d) the costs of distributing
the Registration Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each case, exhibits), the
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein, all as provided in
this Agreement; (e) the costs of reproducing and distributing this Agreement;
(f) the fees and expenses of qualifying the Certificates under the securities
laws of the several jurisdictions as provided in Section V(G) hereof and of
preparing, printing and distributing a Blue Sky Memorandum and a Legal
Investment Survey (including related fees and expenses of counsel to the
Underwriter); (g) any fees charged by securities rating services for rating the
Certificates; and (h) all other costs and expenses incident to the performance
of the obligations of Renaissance (including costs and expenses of Renaissance's
counsel); provided that, except as provided in this Section VIII, the
Underwriter shall pay its own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Offered Certificates which
they may sell and the expenses of advertising any offering of the Certificates
made by the Underwriter.
If this Agreement is terminated by the Underwriter in accordance with
the provisions of Section VII, Section XI or Section XII, Renaissance shall
reimburse the Underwriter for all reasonable out-of-pocket expenses, including
fees and disbursements of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP.
Section IX. Indemnification and Contribution. A. Renaissance agrees to
indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Securities Act
from and against any and all loss, claim, damage or liability, joint or several,
or any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of the
Offered Certificates), to which the Underwriter or any such controlling person
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus or (iv) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and shall reimburse the Underwriter
and each such controlling person promptly upon demand for any legal or other
expenses reasonably incurred by the Underwriter or such controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that Renaissance shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made (i) in the Prospectus or the Registration Statement in
reliance upon and in conformity with written information furnished to
Renaissance by or on behalf of the Underwriter specifically for inclusion
therein and (ii) to the extent that such misstatement or omission was corrected
at least one day prior to the written confirmation of such sale and such
Underwriter did not deliver, at or prior to the written confirmation of such
sale, a copy of the Prospectus as then revised, amended or supplemented in any
case where such delivery is required by the Securities Act or the Exchange Act,
if Renaissance has previously furnished copies thereof to the Underwriter in
accordance with the terms of this Agreement or (iii) in the Derived Information
except to the extent such misstatement or omission arises from a misstatement or
omission in Seller Provided Information. The foregoing indemnity agreement is in
addition to any liability which Renaissance may otherwise have to the
Underwriter or any controlling person of the Underwriter.
19
B. The Underwriter agrees to indemnify and hold harmless Renaissance,
each of its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls Renaissance within the meaning
of Section 15 of the Securities Act against any and all loss, claim, damage or
liability, or any action in respect thereof, to which Renaissance or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus or (iv) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was (i) made in
reliance upon and in conformity with written information furnished to
Renaissance by or on behalf of the Underwriter specifically for inclusion
therein and (ii) in the Derived Information other than a misstatement or
omission arising from a misstatement or omission in Seller Provided Information,
and shall reimburse Renaissance and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by Renaissance or any
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which the Underwriter may otherwise have to
Renaissance or any such director, officer or controlling person.
C. Promptly after receipt by any indemnified party under this Section
IX of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section IX, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section IX except to the extent it has
been materially prejudiced by such failure and, provided, further, that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section IX.
20
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section IX for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the Underwriter, if the indemnified
parties under this Section IX consist of the Underwriter or any of its
controlling persons, or by Renaissance, if the indemnified parties under this
Section IX consist of Renaissance or any of Renaissance's directors, officers or
controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section IX(A) and (B), shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
21
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
D. For purposes of this Agreement, as to the Underwriter, "Derived
Information" means such portion, if any, of the information delivered to the
Company by such Underwriter pursuant to Section VI for filing with the
Commission on Form 8-K which information (i) is not contained in the Prospectus
without taking into account information incorporated therein by reference, and
(ii) does not constitute Seller-Provided Information. "Seller-Provided
Information" means any computer tape (or other information) furnished to any
Underwriter by or on behalf of the Company concerning the assets of the Trust
Fund.
E. If the indemnification provided for in this Section IX shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section IX(A) or (B), in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof (a) if such loss,
claim, damage or liability does not arise from Investor Materials, (i) in such
proportion as shall be appropriate to reflect the relative benefits received by
Renaissance on the one hand and the Underwriter on the other from the offering
of the Certificates or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law or if the indemnified party failed to give the
notice required under Section IX(C), in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of Renaissance on the one hand and the Underwriter on the
other with respect to the statements or omissions which resulted if such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations and (b) if such loss, claim, damage or
liability arises from Investor Materials, in such proportion as is appropriate
to reflect the relative benefits received by Renaissance on the one hand and the
Underwriter on the other from the offering of the Offered Certificates and the
relative fault of Renaissance on the one hand and the Underwriter on the other
with respect to the statements or omissions which resulted in such loss, claims,
damages or liability, or actions in respect thereof, as well as any other
relevant equitable consideration.
The relative benefits of the Underwriter and Renaissance shall be
deemed to be in such proportions that the Underwriter is responsible for that
portion of such losses, liabilities, claims, damages and expenses represented by
the percentage that the underwriting discount on the cover of the Prospectus as
amended or supplemented bears to the initial public offering price as set forth
thereon, and Renaissance shall be responsible for the balance.
The relative fault of the Underwriter and Renaissance shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by Renaissance or by the Underwriter, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission and other equitable
considerations.
22
Renaissance and the Underwriter agree that it would not be just and
equitable if contributions pursuant to this Section IX(G) were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section IX(E)
shall be deemed to include, for purposes of this Section IX(E), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
In no case shall the Underwriter be responsible for any amount in
excess of the discount applicable to each Certificate as disclosed on the cover
of the Prospectus as amended or supplemented. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
F. The Underwriter confirms that the information set forth (i) in the
last paragraph on the front cover, (ii) in the second and fifth paragraphs under
the caption "Underwriting" in the Prospectus Supplement and (iii) the Derived
Information is correct and constitutes the only information furnished in writing
to Renaissance by or on behalf of the Underwriter specifically for inclusion in
the Registration Statement and the Prospectus.
Section X. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of Renaissance submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter or controlling
persons thereof, or by or on behalf of Renaissance and shall survive delivery of
any Certificates to the Underwriter.
Section XI. Termination of Agreement. The Underwriter may terminate
this Agreement immediately upon notice to Renaissance, at any time at or prior
to the Closing Date if any of the events or conditions described in Section
VII(O) of this Agreement shall occur and be continuing. In the event of any such
termination, the covenant set forth in Section V(D), the provisions of Section
VIII, the indemnity agreement set forth in Section IX, and the provisions of
Sections X and XIV shall remain in effect.
Section XII. Seller Obligation. The Seller agrees with each
Underwriter, for the sole and exclusive benefit of such Underwriter and each
person who controls a Underwriter within the meaning of either the Act or the
Exchange Act and not for the benefit of any assignee thereof or any other person
or persons dealing with such Underwriter, to indemnify and hold harmless each
Underwriter and each person who controls a Underwriter within the meaning of
either the Act or the Exchange Act against any failure by Renaissance to perform
any of its obligations under this Agreement. The Seller agrees that there are no
conditions precedent to the obligations of the Seller hereunder other than
written demand to Renaissance to perform its obligations under this Agreement.
Section XIII. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
23
A. if to the Underwriter, shall be delivered or sent by mail, telex or
facsimile transmission to [________________________], [______________________],
Attention: [_______], Fax: ([___]) [___]-[____]; and
B. if to the Seller, shall be delivered or sent by mail, telex or
facsimile transmission to Delta Funding Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Chief Counsel, Fax: ▇▇▇-▇▇▇-▇▇▇▇.
C. If to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to Renaissance Mortgage Acceptance Corp., ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Chief Counsel, Fax: ▇▇▇-▇▇▇-▇▇▇▇.
Section XIV. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriter and
Renaissance, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control the Underwriter within the meaning of Section 15 of the
Securities Act, and for the benefit of directors of Renaissance, officers of
Renaissance who have signed the Registration Statement and any person
controlling Renaissance within the meaning of Section 15 of the Securities Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section IX, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
Section XV. Survival. The respective indemnities, representations,
warranties and agreements of Renaissance and the Underwriter contained in this
Agreement, or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Certificates and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
Section XVI. Definition of the Term "Business Day". For purposes of
this Agreement, "Business Day" means any day on which the New York Stock
Exchange, Inc. is open for trading.
Section XVII. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section XVIII. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
Section XIX. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
24
If the foregoing correctly sets forth the agreement between the Seller,
Renaissance and the Underwriter, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
RENAISSANCE MORTGAGE ACCEPTANCE CORP.
By:
------------------------------
Name:
Title:
DELTA FUNDING CORPORATION
By:
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
[__________________________________]
By:
------------------------------
Name:
Title:
SCHEDULE A
[__________________________________]
Principal Purchase Price
Class [___] $ [___________] [_____]%
Class [___] $ [___________] [_____]%
Class [___] $ [___________] [_____]%
Class [___] $ [___________] [_____]%
Class [___] $ [___________] [_____]%
Class [___] $ [___________] [_____]%
* Notional Amount as of the closing date.
1