EXHIBIT 99.4
EXECUTION
SEQUOIA MORTGAGE TRUST 2005-4
Mortgage Pass-Through Certificates
UNDERWRITING AGREEMENT
September 26, 2005
The Firm or Firms
of Underwriters named
on the signature page hereof
Ladies and Gentlemen:
Sequoia Residential Funding, Inc., a Delaware corporation (the "Depositor")
and an indirect wholly-owned limited purpose subsidiary of Redwood Trust, Inc.,
a Maryland corporation ("Redwood Trust"), proposes to cause Sequoia Mortgage
Trust 2005-4 (the "Trust") to issue and sell to you (each, an "Underwriter") its
Mortgage Pass-Through Certificates, Class 1-A1, Class 1-A2, Class 1-XA, Class
1-XB, Class 1-AR, Class 1-B1, Class 1-B2, Class 1-B3, Class 2-A1, Class 2-A2,
Class 2-AR, Class 2-B1, Class 2-B2 and Class 2-B3 (the "Publicly-Offered
Certificates") having the characteristics set forth in the Prospectus Supplement
(as defined below), evidencing beneficial ownership interests in a trust fund
(the "Trust Fund"), the assets of which will consist primarily of two pools of
conventional, adjustable rate mortgage loans secured by first liens on one- to
four-family residential properties (the "Mortgage Loans"). The Mortgage Loans
will have the characteristics described in the Prospectus Supplement, subject to
the variances, ranges, minimums and maximums set forth in the Prospectus
Supplement.
The Trust Fund will be formed, and the Publicly-Offered Certificates,
together with the Class 1-B4, Class 1-B5, Class 1-B6, Class 1-LTR, Class 2-B4,
Class 2-B5 and Class 2-B6
Certificates (collectively, the "Certificates") will be issued, pursuant to a
pooling and servicing agreement (the "Pooling and Servicing Agreement") dated as
of September 1, 2005, by and among the Depositor, HSBC Bank USA, National
Association, as trustee (the "Trustee"), and Xxxxx Fargo Bank, National
Association, in the dual capacities of master servicer (the "Master Servicer")
and securities administrator (the "Securities Administrator") and acknowledged
by RWT Holdings, Inc., a Delaware corporation and wholly-owned subsidiary of
Redwood Trust, as seller (the "Seller"). On or about September 29, 2005 (the
"Closing Date"), the Seller will assign all of its right, title and interest in
the Mortgage Loans to the Depositor pursuant to a mortgage loan purchase and
sale agreement, dated as of September 1, 2005 (the "Mortgage Loan Purchase
Agreement"), between the Seller, as seller, and the Depositor, as purchaser.
Pursuant to the Pooling and Servicing Agreement, the Mortgage Loans will, in
turn, be assigned by the Depositor to the Trustee for the benefit of the
Certificateholders, together with all principal and interest collections
received with respect to the Mortgage Loans on and after September 1, 2005 (the
"Cut-off Date") (other than Scheduled Payments due on that date). The Trustee
will concurrently with such assignment, authenticate and deliver the
Certificates to the Depositor for sale to the Underwriters. In addition,
pursuant to various assignment, assumption and recognition agreements
(collectively, the "Assignment Agreements"), (i) the Seller will assign its
rights under various underlying mortgage loan purchase and servicing agreements
relating to the Mortgage Loans entered into by the Seller (collectively, the
"Underlying Purchase and Servicing Agreements"), to the Depositor and (ii) the
Depositor will, in turn, assign its rights under the Underlying Purchase and
Servicing Agreements to the Trustee for the benefit of the Certificateholders.
The Master Servicer will monitor the servicing of the Mortgage Loans by the
primary servicers pursuant to the provisions of the Pooling and Servicing
Agreement.
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The Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement,
the Assignment Agreements and this Agreement are sometimes referred to herein
collectively as the "Transaction Documents." Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Pooling and Servicing Agreement.
1. Representations and Warranties. The Seller, the Depositor and Redwood
Trust, jointly and severally represent and warrant to, and agree with, each
Underwriter that:
(i) A registration statement on Form S-3 (File No. 333-118832),
including a prospectus, has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective under the Securities
Act of 1933, as amended (the "Act"). Such registration statement, as
amended at the date of this Agreement, meets the requirements set forth in
Rule 415(a)(1)(x) under the Act. As of the Closing Date (as hereinafter
defined), no stop order suspending the effectiveness of such registration
statement has been issued and no proceedings for that purpose have been
initiated or, to the knowledge of the Seller, the Depositor or Redwood
Trust, threatened by the Commission. The prospectus in the form in which it
will be used in connection with the offering of the Publicly-Offered
Certificates is proposed to be supplemented by a prospectus supplement
dated the date hereof relating to the Publicly Offered Certificates and, as
so supplemented, to be filed with the Commission pursuant to Rule 424(b)
under the Act. (Such registration statement, together with any revision,
amendment or supplement, is hereinafter referred to as the "Registration
Statement;" such prospectus supplement, as first filed with the Commission,
together with any revision, amendment or supplement, is hereinafter
referred to as the "Prospectus Supplement;" and such prospectus, in the
form in which it will first be filed with the Commission in connection
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with the offering of such Certificates, including the documents
incorporated therein as of the time of such filing and as supplemented by
the Prospectus Supplement, together with any revision, amendment or
supplement, is hereinafter referred to as the "Prospectus"). Any reference
herein to the Registration Statement, a preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date on which the Registration Statement,
as amended, became effective or the issue date of such preliminary
prospectus or the date on which the Prospectus is filed pursuant to Rule
424(b) under the Act, as the case may be; and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the date on which the Registration Statement became effective or the
issue date of any preliminary prospectus or the date on which the
Prospectus is filed pursuant to Rule 424(b) under the Act, as the case may
be, deemed to be incorporated therein by reference.
(ii) The Registration Statement and the Prospectus, as of the date of
the Prospectus Supplement will conform, and the Registration Statement and
the Prospectus as revised, amended or supplemented and filed with the
Commission prior to the termination of the offering of the Publicly Offered
Certificates, as of their respective effective or issue dates, will conform
in all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder applicable to such documents as of
such respective dates, and the Registration Statement and the Prospectus
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as revised, amended or supplemented and filed with the Commission as of the
Closing Date will conform in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder
applicable to such documents as of the Closing Date. The Registration
Statement, at the time it became effective, did not include any 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; and the Prospectus as of the date of the Prospectus Supplement
and as of the Closing Date, will not include any untrue statement of a
material fact and will not omit to state 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; provided,
however, that the Seller, the Depositor and Redwood Trust make no
representations, warranties or agreements as to the information contained
in the Prospectus or any revision or amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished in
writing to the Depositor by or on behalf of any Underwriter specifically
for use in connection with the preparation of the Prospectus or any
revision or amendment thereof or supplement thereto, such information being
defined as the "Underwriter Information" in Section 10 hereof.
(iii) The conditions to the use by the Depositor of a registration
statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement. There are no contracts or documents of the
Depositor which are required to be filed as exhibits to the Registration
Statement pursuant to the Act or the rules and regulations of the
Commission thereunder which have not been so filed.
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(iv) The Publicly-Offered Certificates conform in all material
respects to the description thereof contained in the Prospectus. The
issuance of the Publicly-Offered Certificates has been authorized and on
the Closing Date the Publicly-Offered Certificates will have been duly and
validly executed, authenticated and delivered in accordance with the
Pooling and Serving Agreement and delivered to the Underwriters for the
account of the Underwriters against payment therefor as provided herein,
will be duly and validly issued and outstanding and entitled to the
benefits afforded by the Pooling and Servicing Agreement. Each
Publicly-Offered Certificate of the Class (or if applicable, Classes)
indicated to be "mortgage related securities" under the heading "Summary --
Legal Investment" in the Prospectus Supplement will, when issued, be a
"mortgage related security" as such term is defined in Section 3(a)(41) of
the Exchange Act.
(v) This Agreement has been duly authorized, executed and delivered by
each of the Seller, the Depositor and Redwood Trust and as of the Closing
Date, each of the other Transaction Documents to which the Seller, the
Depositor or Redwood Trust is a party will have been, duly authorized,
executed and delivered by the Seller, the Depositor or Redwood Trust, as
applicable, and will conform in all material respects to the descriptions
thereof contained in the Prospectus and, assuming the valid execution and
delivery thereof by the other parties thereto, each Transaction Document to
which Redwood Trust, the Seller or the Depositor is a party will constitute
a legal, valid and binding agreement of the Seller, the Depositor or
Redwood Trust, as applicable, enforceable in accordance with its terms,
except as the same may be limited by
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bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and by general principles of equity.
(vi) Each of the Seller, the Depositor and Redwood Trust has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its respective State of incorporation, and each of the
Seller, the Depositor and Redwood Trust is duly qualified to do business as
a foreign corporation and is in good standing under the laws of each
jurisdiction where the character of its respective properties or the nature
of its respective activities makes such qualification necessary, except
such jurisdictions, if any, in which the failure to be so qualified will
not have a material adverse effect on the condition (financial or
otherwise), earnings, regulatory affairs, business affairs, business
prospects or properties of Redwood Trust, the Seller or the Depositor; each
of Redwood Trust, the Seller and the Depositor holds all material licenses,
certificates and permits from all governmental authorities necessary for
the conduct of its respective business as described in the Prospectus; and
each of the Seller, the Depositor and Redwood Trust has the corporate power
and authority to own its respective properties and conduct its respective
business as described in the Prospectus and to enter into and perform its
respective obligations under each Transaction Document to which it is a
party.
(vii) Neither the issuance, delivery or sale of the Publicly Offered
Certificates, nor the consummation of any other of the transactions
contemplated herein, nor the execution and delivery of the Transaction
Documents by the Seller, the Depositor or Redwood Trust, as applicable, and
compliance with the provisions of the Transaction Documents, does or will
conflict with or result in the breach of any material term or
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provision of the certificate of incorporation or by-laws of the Seller, the
Depositor, or Redwood Trust, and none of the Seller, the Depositor or
Redwood Trust is in breach or violation of or in default (nor has an event
occurred which with notice or lapse of time or both would constitute a
default) under the terms of (i) any indenture, contract, lease, mortgage,
deed of trust, note, agreement or other evidence of indebtedness or other
agreement, obligation or instrument to which the Seller, the Depositor or
Redwood Trust is a party or by which it or its respective properties are
bound, or (ii) any law, decree, order, rule or regulation applicable to the
Seller, the Depositor or Redwood Trust of any court or supervisory,
regulatory, administrative or governmental agency, body or authority, or
arbitrator having jurisdiction over the Seller, the Depositor or Redwood
Trust, or its respective properties, the default in or the breach or
violation of which would have a material adverse effect on the Depositor,
Redwood Trust, the Trust Fund or the Certificates or on the ability of the
Seller, the Depositor or Redwood Trust to perform its respective
obligations under the Transaction Documents to which it is a party; and
neither the delivery of the Certificates, nor the consummation of any other
of the transactions contemplated herein, nor the compliance with the
provisions of the Transaction Documents will result in such a breach,
violation or default which would have such a material adverse effect.
(viii) No filing or registration with, notice to, or consent,
approval, authorization or order or other action of any court or
governmental authority or agency is required for the consummation by the
Seller, the Depositor or Redwood Trust of the transactions contemplated by
the Transaction Documents to which it is a party (other than as required
under "blue sky" or state securities laws, as to which no representations
and warranties
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are made by the Seller, the Depositor or Redwood Trust), except such as
have been, or will have been prior to the Closing Date, obtained under the
Act, and such recordations of the assignment of the Mortgage Loans (as
defined in the Prospectus Supplement) to the Trustee (to the extent such
recordations are required pursuant to the Pooling and Servicing Agreement)
that have not yet been completed.
(ix) There is no action, suit or proceeding before or by any court,
administrative or governmental agency now pending to which the Seller, the
Depositor or Redwood Trust is a party, or to the best knowledge of the
Seller, the Depositor or Redwood Trust, threatened against the Seller, the
Depositor or Redwood Trust, which could reasonably result individually or
in the aggregate in any material adverse change in the condition (financial
or otherwise), earnings, regulatory affairs, business affairs, business
prospects or properties of the Seller, the Depositor or Redwood Trust or
could reasonably interfere with or materially and adversely affect the
consummation of the transactions contemplated in the Transaction Documents.
(x) At the time of execution and delivery of the Mortgage Loan
Purchase Agreement between the Seller and the Depositor, the Seller will
own the Mortgage Loans being sold to the Depositor pursuant thereto, free
and clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim
or other security interest (collectively "Liens"), except to the extent
permitted by the Mortgage Loan Purchase Agreement, and will not have
assigned to any person other than the Depositor any of its right, title or
interest in the Mortgage Loans.
(xi) Immediately prior to the assignment of the Mortgage Loans by the
Depositor to the Trustee as contemplated by the Pooling and Servicing
Agreement, the
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Depositor (i) will have good title to and was the sole owner of, each such
Mortgage Loan free and clear of any Lien, (ii) will not have assigned to
any Person any of its rights, title or interest in and to such Mortgage
Loans or in the Pooling and Servicing Agreement and (iii) will have the
power and authority to sell such Mortgage Loans to the Trustee, and upon
execution and delivery of the Pooling and Servicing Agreement by the
Trustee, the Trustee will have acquired all of the Depositor's rights,
title and interest in and to such Mortgage Loans.
(xii) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of the Transaction Documents and
the Certificates have been or will be paid by the Seller, the Depositor or
Redwood Trust at or prior to the Closing Date, except for fees for
recording assignments of the Mortgage Loans to the Trustee pursuant to the
Pooling and Servicing Agreement that have not yet been completed, which
fees will be paid by or on behalf of Redwood Trust.
(xiii) The Mortgage Loans conform in all material respects to the
description thereof contained in the Prospectus Supplement.
(xiv) Neither the Depositor nor the Trust Fund is, and neither the
issuance and sale of the Certificates nor the activities of the Trust Fund
pursuant to the Pooling and Servicing Agreement will cause the Depositor or
the Trust Fund to be, an "investment company" or under the interest of an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act").
(xv) None of the Seller, the Depositor or Redwood Trust is doing
business with Cuba.
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2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Depositor agrees
to sell, and each Underwriter agrees, severally and not jointly, to purchase
from the Depositor, each Class of Publicly-Offered Certificates to be purchased
by such Underwriter in the respective initial Class Principal Amounts and at the
purchase prices set forth on Schedule 1 annexed hereto (including accrued
interest from and including the Cut-off Date to, but not including, the Closing
Date, in the case of the Class 1-XA, Class 1-XB, Class 1-B3, Class 2-A1, Class
2-A2, Class 2-B1, Class 2-B2 and Class 2-B3 Certificates).
3. Delivery and Payment. The Publicly-Offered Certificates shall be
delivered at the office, on the date and at the time specified in the Prospectus
Supplement, which place, date and time may be changed by agreement between the
Underwriters and the Depositor (such date and time of delivery of and payment
for the Publicly-Offered Certificates being hereinafter referred to as the
"Closing Date"). Delivery of the Publicly-Offered Certificates shall be made to
each of the Underwriters as against their respective payment of the purchase
price therefor to or upon the order of the Issuer in immediately available
federal funds. The Publicly-Offered Certificates shall be registered in such
names and in such denominations as required by book-entry registration not less
than two full business days prior to the Closing Date. The Depositor agrees to
cause the Publicly-Offered Certificates to be made available for inspection,
checking and packaging in New York, New York on the business day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters propose
to offer the Publicly-Offered Certificates for sale as set forth in the
Prospectus and that you will not offer, sell or otherwise distribute the
Publicly-Offered Certificates (except for the sale thereof in exempt
transactions) in any state in which the Publicly-Offered Certificates are not
exempt from
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registration under "blue sky" or state securities laws (except where the
Publicly-Offered Certificates will have been qualified for offering and sale at
your direction under such "blue sky" or state securities laws).
5. Agreements.
(a) The Depositor agrees with each Underwriter that:
(i) The Depositor will cause the Prospectus to be filed with the
Commission pursuant to Rule 424(b) under the Act and, if necessary, within
15 days of the Closing Date, will file a report on Form 8-K setting forth
specific information concerning the Mortgage Loans, and will promptly
advise each Underwriter when the Prospectus has been so filed, and, prior
to the termination of the offering of the Publicly-Offered Certificates,
will also promptly advise each Underwriter (i) when any amendment to the
Registration Statement has become effective or any revision of or
supplement to the Prospectus has been so filed (unless such amendment,
revision or supplement does not relate to the Publicly-Offered Certificates
or the Trust Fund), (ii) of any request by the Commission for any amendment
of the Registration Statement or the Prospectus or for any additional
information (unless such amendment or request for additional information
does not relate to the Publicly-Offered Certificates or the Trust Fund),
(iii) of any written notification received by the Depositor of the
suspension of qualification of the Publicly-Offered Certificates for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or, to the knowledge of the Depositor, the threatening of any
proceeding for that purpose. The Depositor will use its best efforts to
prevent the issuance of any such stop order and, if
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issued, to obtain as soon as possible the withdrawal thereof. The Depositor
will not file prior to the termination of such offering any amendment to
the Registration Statement or any revision of or supplement to the
Prospectus (other than any such amendment, revision or supplement which
does not relate to Publicly-Offered Certificates or the Trust Fund) which
shall be disapproved by the Underwriters after reasonable notice and review
of such filing.
(ii) If, at any time when a prospectus relating to the
Publicly-Offered Certificates is required to be delivered under the Act (i)
any event occurs 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 a material fact necessary to make the statements therein in the
light of the circumstances under which they were made not misleading, or
(ii) it shall be necessary to revise, amend or supplement the Prospectus to
comply with the Act or the rules and regulations of the Commission
thereunder, the Depositor promptly will notify each Underwriter and will,
upon the request of any Underwriter, or may, after consultation with each
Underwriter, prepare and file with the Commission a revision, amendment or
supplement which will correct such statement or omission or effect such
compliance, and furnish without charge to each Underwriter as many copies
as such Underwriter may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance.
(iii) The Depositor will furnish to each Underwriter and counsel to
the Underwriters, without charge, conformed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus relating to the Publicly-Offered
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Certificates is required under the Act, as many copies of the Prospectus
and any revisions or amendments thereof or supplements thereto as may be
reasonably requested.
(iv) The Depositor will, as between itself and the Underwriters, pay
all expenses incidental to the performance of the obligations of the
Depositor, the Seller or the Redwood Trust under this Agreement, including
without limitation (i) expenses of preparing, printing and reproducing the
Registration Statement, the Prospectus, the Transaction Documents and the
Certificates, (ii) the cost of delivering the Publicly-Offered Certificates
to the Underwriters, (iii) the fees charged by securities rating agencies
for rating the Publicly-Offered Certificates, (iv) all transfer taxes, if
any, with respect to the sale and delivery of the Publicly-Offered
Certificates to the Underwriters, (v) any expenses for the qualification of
the Publicly-Offered Certificates under "blue sky" or state securities
laws, including filing fees and the fees and disbursements of counsel for
such Underwriter in connection therewith and in connection with the
preparation of any Blue Sky Survey, (vi) all other costs and expenses
incidental to the performance by the Depositor, the Seller or the Redwood
Trust of their respective obligations hereunder which are not otherwise
specifically provided for in this subsection and (vii) the fees of any
counsel to the Underwriters, including the fees incurred in connection with
the review of the Transaction Documents and the preparation of the
Underwriting Agreement and the legal opinions, up to a maximum of $55,000;
provided, however, that the Underwriters will pay all fees of any counsel
to the Underwriters in excess of $55,000, which excess shall not exceed
$40,000. In addition, it is understood that, except as provided in this
paragraph (iv) and in Section 9 hereof, the Underwriters will pay all the
following additional expenses: (i) any transfer taxes on resale of any of
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the Publicly-Offered Certificates by it and (ii) any advertising expenses
connected with any offers that such Underwriters may make.
(v) So long as any Publicly-Offered Certificates are outstanding, upon
request of any Underwriter, the Depositor will furnish, or will cause to be
furnished, to such Underwriter, as soon as available, a copy of (i) the
annual statement of compliance prepared by the Master Servicer pursuant to
the Pooling and Servicing Agreement, (ii) each report regarding the
Publicly-Offered Certificates filed with the Commission under the Exchange
Act or mailed to the holders of the Publicly-Offered Certificates and (iii)
from time to time, such other information concerning the Publicly-Offered
Certificates which may be furnished by the Depositor or the Trustee without
undue expense and without violation of applicable law.
(vi) The Depositor will file or cause to be filed a current report on
Form 8-K for purposes of filing any Computational Materials furnished to
the Depositor by any Underwriter prior to the time of filing of the
Prospectus as provided in Section 5(a) hereof and will include therein all
Computational Materials so furnished. In addition, the Depositor will file
or cause to be filed all reports with respect to the Trust Fund required to
be filed under the Exchange Act when the same are required thereby to be so
filed.
(vii) For a period ending on the Closing Date, the Depositor shall not
offer or sell, or announce the offering of, or cause any trust created by
the Depositor to offer or sell, or announce the offering of, any mortgage
pass-through certificates or other similar mortgage-related securities,
without the prior written consent of the Underwriters.
(b) Redwood Trust covenants with each Underwriter and with the
Depositor that it shall notify you and the Depositor of the occurrence of any
material events respecting the
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activities, affairs or condition, financial or otherwise, of Redwood Trust and
its subsidiaries and, if as a result of any such event it is necessary to amend
or supplement the Prospectus in order to make the Prospectus not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, Redwood Trust will forthwith supply such information to the Depositor
as shall be necessary for the Depositor to prepare an amendment or supplement to
the Prospectus so that, as so amended or supplemented, the Prospectus 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 existing at the time it is delivered to a purchaser, not
misleading.
6. Conditions to the Obligations of Underwriters. The obligation of each
Underwriter to purchase the Publicly-Offered Certificates to be purchased by it
as set forth on Schedule 1 annexed hereto shall be subject to the accuracy in
all material respects of the representations and warranties on the part of the
Seller, the Depositor and Redwood Trust contained herein as of the date hereof
and as of the Closing Date, to the accuracy of the statements of the Seller, the
Depositor and Redwood Trust made in any officer's certificate pursuant to the
provisions hereof, to the performance in all material respects by the Seller,
the Depositor and Redwood Trust of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted and be pending or shall have been threatened, any requests for
additional information on the part of the Commission (to be included in the
Registration Statement or in the Prospectus or otherwise) shall have been
complied with to the reasonable satisfaction of the Underwriters, and the
Prospectus shall have been filed or transmitted for filing with the Commission
not later than the
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time the same is required to be filed or transmitted for filing pursuant to the
rules and regulations of the Commission.
(b) Each of the Depositor and the Seller shall have furnished to the
Underwriters a certificate, dated the Closing Date, signed by the Chairman of
the Board or the President and the principal financial or accounting officer of
such entity, to the effect that each signer of such certificate has carefully
examined the Registration Statement, the Prospectus and this Agreement and that:
(i) The representations and warranties made by such entity herein are
true and correct in all material respects on and as of the Closing Date
with the same effect as if made on the Closing Date, and such entity has
complied with all agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have been
instituted and are pending or, to the knowledge of such officer, have been
threatened as of the Closing Date;
(iii) Nothing has come to the attention of such officer that would
lead such officer to believe that the Prospectus (other than any
information included in the Computational Materials and incorporated in the
Prospectus by reference, which information (i) is not also otherwise
included in the Prospectus Supplement and (ii) is not Seller Mortgage Loan
Information) contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and
(iv) Nothing has come to the attention of such officer that would lead
such officer to believe that any Seller Mortgage Loan Information (as
defined herein) contains
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any untrue statement of a material fact or, in conjunction with the
Prospectus, omits any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(c) Redwood Trust shall have furnished to the Underwriters a
certificate, dated the Closing Date, of Redwood Trust, signed by the Chairman of
the Board or President and the principal financial or accounting officer of
Redwood Trust, to the effect that each signer of such certificate has carefully
examined the Registration Statement, the Prospectus and this Agreement and that:
(i) The representations and warranties of Redwood Trust herein are
true and correct in all material respects on and as of the Closing Date
with the same effect as if made on the Closing Date, and Redwood Trust has
complied with all agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have been
instituted and are pending or, to the knowledge of such officer, have been
threatened as of the Closing Date; and
(iii) Nothing has come to the attention of such officer that would
lead such officer to believe that the Prospectus (other than any
information included in the Computational Materials and incorporated in the
Prospectus by reference, which information (i) is not also otherwise
included in the Prospectus Supplement and (ii) is not Seller Mortgage Loan
Information) contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
18
(d) Each of the Depositor and the Seller shall have furnished to you
an opinion, dated the Closing Date, of Xxxxx & Xxxxx, special counsel to the
Depositor and the Seller, in form and substance satisfactory to the Underwriters
and counsel to the Underwriters, to the effect that:
(i) Such entity has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of its
incorporation and is duly qualified to do business in, and is in good
standing as a foreign corporation under the laws of, each jurisdiction
where the character of its properties or the nature of its activities makes
such qualification necessary, except such jurisdictions, if any, in which
the failure to be so qualified will not have a material adverse effect on
the condition (financial or otherwise), earnings, regulatory affairs,
business affairs, business prospects or properties of such entity; and such
entity holds all material licenses, certificates and permits from all
governmental authorities necessary for the conduct of its business as
described in the Prospectus;
(ii) No filing or registration with, notice to, or consent, approval,
authorization, order or other action of any governmental agency or body or
any court is required for the consummation by such entity of the
transactions contemplated by the terms of the Transaction Documents to
which it is a party except such as may be required under the "blue sky" or
state securities laws of any jurisdiction in connection with the offering,
sale or acquisition of the Publicly-Offered Certificates, any recordations
of the Mortgage Loans to the Trustee (to the extent such recordations are
required pursuant to the Pooling and Servicing Agreement) that have not yet
been completed and such other approvals as have been obtained;
19
(iii) The issuance, delivery and sale of the Publicly-Offered
Certificates to be purchased by the Underwriters pursuant to this
Agreement, the execution and delivery of the Transaction Documents by such
entity and the consummation of any of the transactions contemplated by the
terms of the Transaction Documents do not conflict with or result in a
breach or violation of any material term or provision of, or constitute a
default under, the certificate of incorporation or by-laws of such entity,
or any indenture, contract, lease, mortgage, deed of trust, note, agreement
or other evidence of indebtedness or other agreement, obligation or
instrument to which such entity is a party or by which it or its property
is bound, or any statute or any law, decree, order, rule or regulation
applicable to such entity of any court, regulatory body, administrative
agency or governmental body having jurisdiction over such entity or its
properties;
(iv) There are no legal or governmental actions, investigations or
proceedings pending to which such entity is a party, or, to the best
knowledge of such counsel, threatened against the such entity, (A)
asserting the invalidity of any Transaction Document or the Certificates,
(B) seeking to prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by any Transaction Document, (C)
which might materially and adversely affect the performance by such entity
of its respective obligations under, or the validity or enforceability of,
any Transaction Document or the Certificates or (D) seeking to affect
adversely the Federal income tax attributes of the Publicly-Offered
Certificates as described in the Prospectus under the heading "Federal
Income Tax Consequences" or the state income tax attributes of the
Publicly-Offered Certificates as described in the Prospectus under the
heading "State Tax Considerations;"
20
(v) The Registration Statement and any amendments thereto have become
effective under the Act; to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been
issued and not withdrawn, no proceedings for that purpose have been
instituted or threatened and not terminated; and the Registration Statement
and the Prospectus and each amendment or supplement thereto, as of their
respective effective or issue dates (other than the financial and
statistical information contained therein as to which such counsel need
express no opinion), complied as to form in all material respects with the
applicable requirements of the Act and the respective rules and regulations
thereunder;
(vi) To the best knowledge of such counsel, 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;
(vii) Each Transaction Document to which such entity is a party has
been duly authorized, executed and delivered by such entity and constitutes
a valid, legal and binding agreement of such entity enforceable against
such entity in accordance with its terms, subject, as to enforceability to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity or at
law;
(viii) The direction by the Depositor to the Trustee to execute,
authenticate and deliver the Publicly-Offered Certificates has been duly
authorized by the Depositor, and the Publicly-Offered Certificates, when
authenticated by the Trustee in the manner
21
anticipated by the Pooling and Servicing Agreement and delivered and paid
for by you as provided in this Agreement, will be validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing
Agreement;
(ix) The Publicly-Offered Certificates and the Transaction Documents
conform in all material respects to the descriptions thereof contained in
the Prospectus;
(x) The statements in the Prospectus under the headings "Certain Legal
Aspects of the Loans" and "Legal Investment," to the extent that they
constitute matters of law or legal conclusions with respect thereto, have
been reviewed by such counsel and are correct in all material respects;
(xi) The Publicly-Offered Certificates indicated under the heading
"Summary -- Legal Investment" in the Prospectus Supplement to be "mortgage
related securities" will be mortgage related securities, as defined in
Section 3(a)(41) of the Exchange Act, so long as such Publicly-Offered
Certificates are rated in one of the two highest rating categories by at
least one nationally recognized statistical rating organization; and
(xii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and neither
the Depositor nor the Trust Fund is required to be registered as an
"investment company" under the 1940 Act.
Such counsel shall also state that nothing has come to its attention that
would lead such counsel to believe that the Registration Statement, at the time
it became effective, 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 or that the Prospectus, as of the date of the
Prospectus Supplement, and on the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make
22
the statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that such counsel need express no view
as to financial and statistical information contained therein.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Transaction Documents. Such opinion
may assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the Seller, the
Depositor and Redwood Trust. Such opinion may be qualified as an opinion only on
the laws of the States of New York, California and Delaware and the federal law
of the United States. To the extent that such firm relies upon the opinion of
other counsel in rendering any portion of its opinion, the opinion of such other
counsel shall be attached to and delivered with the opinion of such firm that is
delivered to you.
(e) The Depositor shall have furnished to the Underwriters an opinion,
dated the Closing Date, of Xxxxxxx and Xxxxxx LLP, special tax counsel to the
Depositor, in form and substance satisfactory to the Underwriters and counsel to
the Underwriters, to the effect that:
(i) the statements in the Prospectus under the heading "Federal Income
Tax Consequences", as supplemented or modified by the statements in the
Prospectus Supplement under the heading "Federal Income Tax Consequences,"
to the extent that they constitute matters of law or legal conclusions with
respect to Federal income tax matters, are correct in all material
respects;
(ii) each segregated asset pool for which the Pooling and Servicing
Agreement directs the Trustee to make a REMIC election will qualify as a
REMIC within the meaning of Section 860D of the Code;
23
(iii) the Reserve Fund is an "outside reserve fund" that is
beneficially owned by the owners of the Class 1-XA and Class 1-XB
Certificates, as applicable; and
(iv) the rights of the owners of the Class 1-A1, Class 1-A2, Class
1-B1 and Class 1-B2 Certificates with respect to the Reserve Fund
represent, for federal income tax purposes, contractual rights that are
separate from their regular interests within the meaning of Treasury
Regulations Section 1.860G-2(i).
(f) Redwood Trust shall have furnished to the Underwriters an opinion,
dated the Closing Date, of Xxxxx & Xxxxx, special counsel to Redwood Trust, in
form and substance satisfactory to the Underwriters and counsel to the
Underwriters, to the effect that:
(i) Redwood Trust has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Maryland
and is duly qualified to do business in, and is in good standing as a
foreign corporation under the laws of, each jurisdiction where the
character of its properties or the nature of its activities makes such
qualification necessary, except such jurisdictions, if any, in which the
failure to be so qualified will not have a material adverse effect on the
condition (financial or otherwise), earnings, regulatory affairs, business
affairs, business prospects or properties of Redwood Trust; and Redwood
Trust holds all material licenses, certificates and permits from all
governmental authorities necessary for the conduct of its business as
described in the Prospectus;
(ii) Each Transaction Document to which Redwood Trust is a party has
been duly authorized, executed and delivered by Redwood Trust and
constitutes a valid, legal binding agreement of Redwood Trust, enforceable
against Redwood Trust in accordance with its terms, subject, as to
enforceability to bankruptcy, insolvency, reorganization,
24
moratorium or other similar laws affecting creditors' rights generally and
to general principles of equity regardless of whether enforcement is sought
in a proceeding in equity or at law;
(iii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by Redwood
Trust of the transactions contemplated by the terms of the Transaction
Documents to which Redwood Trust is a party except such as may be required
under the "blue sky" or state securities laws of any jurisdiction in
connection with the offering, sale or acquisition of the Publicly-Offered
Certificates, any recordations of the assignment of the Mortgage Loans to
the Trustee (to the extent such recordations are required pursuant to the
Pooling and Servicing Agreement) that have not yet been completed and such
other approvals as have been obtained;
(iv) The consummation of any of the transactions contemplated by the
terms of the Transaction Documents to which Redwood Trust is a party do not
conflict with or result in a breach or violation of any material term or
provision of, or constitute a default under, the charter or by-laws of
Redwood Trust, or, to the best knowledge of such counsel, any indenture or
other agreement or instrument to which Redwood Trust is a party or by which
it is bound, or any statute or regulation applicable to Redwood Trust or
any order of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Redwood Trust; and
(v) There are no legal or governmental actions, investigations or
proceedings pending to which Redwood Trust is a party, or, to the best
knowledge of such counsel, threatened against Redwood Trust, (A) asserting
the invalidity of any Transaction
25
Document to which Redwood Trust is a party or (B) which might materially
and adversely affect the performance by Redwood Trust of its obligations
under, or the validity or enforceability of any Transaction Document to
which Redwood Trust is a party.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Transaction Documents. Such opinion
may assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than Redwood Trust,
the Seller and the Depositor. Such opinion may be qualified as an opinion only
on the laws of the States of Maryland, New York, Delaware and California and the
federal law of the United States. To the extent that such counsel relies upon
the opinion of other counsel in rendering any portion of its opinion, the
opinion of such other counsel shall be attached to and delivered with the
opinion of such counsel that is delivered to the Underwriters.
(g) The Trustee shall have furnished to the Underwriters an opinion,
dated the Closing Date, of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, counsel to the
Trustee, in form and substance satisfactory to the Underwriters and counsel to
the Underwriters, to the effect that:
(i) The Trustee has been duly organized and is validly existing as a
banking corporation duly organized under the laws of the state of New York,
and is duly qualified to do business in each jurisdiction where the
character of its properties or the nature of its activities makes such
qualification necessary, except such jurisdictions, if any, in which the
failure to be so qualified will not have a material adverse effect on the
condition (financial or otherwise), earnings, regulatory affairs, business
affairs, business prospects or properties of the Trustee; and the Trustee
holds all material licenses, certificates and
26
permits from all governmental authorities necessary for the conduct of its
business as described in the Prospectus;
(ii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee and constitutes a valid, legal and
binding agreement of the Trustee, enforceable against the Trustee in
accordance with its terms, subject, as to enforceability to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity regardless
of whether enforcement is sought in a proceeding in equity or at law;
(iii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Trustee
of the transactions contemplated by the terms of the Pooling and Servicing
Agreement, except any such as may be required under the "blue sky" or state
securities laws of any jurisdiction in connection with the offering, sale
or acquisition of the Publicly-Offered Certificates, any recordations of
the assignment of the Mortgage Loans to the Trustee (to the extent such
recordations are required pursuant to the Pooling and Servicing Agreement)
that have not yet been completed and such other approvals as have been
obtained; and
(iv) The consummation of any of the transactions contemplated by the
Pooling and Servicing Agreement do not conflict with or result in a breach
or violation of any material term or provision of, or constitute a default
under, the charter or by-laws of the Trustee, or, to the best knowledge of
such counsel, any indenture or other agreement or instrument to which the
Trustee is a party or by which it is bound, or any statute or regulation
applicable to the Trustee or any order of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Trustee.
27
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Transaction Documents. Such opinion
may assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the Trustee.
Such opinion may be qualified as an opinion only on the laws of the States of
New York, Delaware and the federal law of the United States. To the extent that
such counsel relies upon the opinion of other counsel in rendering any portion
of its opinion, the opinion of such other counsel shall be attached to and
delivered with the opinion of such counsel that is delivered to the
Underwriters.
(h) The Master Servicer shall have furnished to the Underwriters an
opinion, dated the Closing Date, of in-house counsel to the Master Servicer and
Hunton & Xxxxxxxx LLP, counsel to the Master Servicer, in form and substance
satisfactory to the Underwriters and counsel to the Underwriters, to the effect
that:
(i) The Master Servicer has been duly organized and is validly
existing as a national banking association duly organized under the laws of
the United States of America, and is duly qualified to do business in each
jurisdiction where the character of its properties or the nature of its
activities makes such qualification necessary, except such jurisdictions,
if any, in which the failure to be so qualified will not have a material
adverse effect on the condition (financial or otherwise), earnings,
regulatory affairs, business affairs, business prospects or properties of
the Master Servicer; and the Master Servicer holds all material licenses,
certificates and permits from all governmental authorities necessary for
the conduct of its business as described in the Prospectus;
28
(ii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Master Servicer and constitutes a valid,
legal and binding agreement of the Master Servicer, enforceable against the
Master Servicer in accordance with its terms, subject, as to enforceability
to bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity or at
law;
(iii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Master
Servicer of the transactions contemplated by the terms of the Pooling and
Servicing Agreement;
(iv) The consummation of any of the transactions contemplated by the
terms of the Pooling and Servicing Agreement do not conflict with or result
in a breach or violation of any material term or provision of, or
constitute a default under, the charter or by-laws of the Master Servicer,
or, to the best knowledge of such counsel, any indenture or other agreement
or instrument to which the Master Servicer is a party or by which it is
bound, or any statute or regulation applicable to the Master Servicer or
any order of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Master Servicer; and
(v) There are no legal or governmental actions, investigations or
proceedings pending to which the Master Servicer is a party, or, to the
best knowledge of such counsel, threatened against the Master Servicer, (A)
asserting the invalidity of the Pooling and Servicing Agreement or (B)
which might materially and adversely affect the performance by the Master
Servicer of its obligations under, or the validity or enforceability of,
the Pooling and Servicing Agreement.
29
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Transaction Documents. Such opinion
may assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the Master
Servicer. Such opinion may be qualified as an opinion only on the laws of the
States of New York, Delaware and the federal law of the United States. To the
extent that such counsel relies upon the opinion of other counsel in rendering
any portion of its opinion, the opinion of such other counsel shall be attached
to and delivered with the opinion of such counsel that is delivered to the
Underwriters.
(i) The Underwriters shall have received copies of any opinions of
counsel delivered to the rating agencies set forth in the Prospectus as rating
the Publicly-Offered Certificates, including, but not limited to, any "true
sale," "non-consolidation" or "perfection" opinions. Any such opinions shall be
dated the Closing Date and addressed to the Underwriters or accompanied by
reliance letters addressed to the Underwriters.
(j) The Underwriters shall have received from their counsel such
opinion or opinions, dated the Closing Date, with respect to the issuance and
sale of the Publicly-Offered Certificates, the Registration Statement and the
Prospectus, and such other related matters as you may reasonably require.
(k) The Depositor's independent accountants, Deloitte & Touche LLP
shall have furnished to the Underwriters a letter or letters addressed to the
Underwriters and dated as of or prior to the date of first use of the Prospectus
Supplement in the form and reflecting the performance of the procedures
previously agreed to by the Depositor and the Underwriters.
30
(l) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change in or affecting the
earnings, business or properties of Redwood Trust, the Depositor or the Seller
which, in your judgment, materially impairs the investment quality of the
Publicly-Offered Certificates so as to make it impractical or inadvisable to
proceed with the public offering or the delivery of the Publicly-Offered
Certificates as contemplated by the Prospectus.
(m) The Publicly-Offered Certificates shall be rated not lower than
the required ratings set forth under the heading "Ratings" in the Prospectus
Supplement, such ratings shall not have been rescinded and no public
announcement shall have been made that any such required rating of the
Publicly-Offered Certificates has been placed under review (otherwise than for
possible upgrading).
(n) The Depositor shall have furnished to the Underwriters such
further information, certificates and documents as the Underwriters may
reasonably have requested, and all proceedings in connection with the
transactions contemplated by this Agreement and all documents incident hereto
shall be in all material respects satisfactory in form and substance to the
Underwriters and their counsel.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, this Agreement and all
obligations of an Underwriter hereunder may be canceled at, or at any time prior
to, the Closing Date by such Underwriter. Notice of such cancellation shall be
given to the Depositor in writing, or by telephone or telegraph confirmed in
writing.
7. Termination. This Agreement shall be subject to termination in your
absolute discretion, by notice given to the Depositor if, subsequent to the date
hereof, (i) trading generally
31
shall have been suspended or materially limited on, or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the Nasdaq
National Market, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of
Redwood Trust or the Depositor shall have been suspended on any exchange or in
any over-the-counter market, (iii) a material disruption in securities
settlement, payment or clearance services in the United States shall have
occurred, (iv) any moratorium on commercial banking activities shall have been
declared by Federal or New York State authorities or (v) there shall have
occurred any outbreak or escalation of hostilities, or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Publicly-Offered Certificates on the
terms and in the manner contemplated in the Prospectus Supplement.
8. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Depositor,
the Seller and Redwood Trust and their respective officers and of each
Underwriter set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the Depositor, the Seller or Redwood Trust, and will survive
delivery of and payment for the Publicly-Offered Certificates. The provisions of
Section 5(a)(iv), Section 9, Section 12 and Section 13 hereof shall survive the
termination or cancellation of this Agreement.
9. Reimbursement of Underwriter Expenses. If for any reason, other than
default by any Underwriter in its obligation to purchase the Publicly-Offered
Certificates or termination by any
32
Underwriter pursuant to Section 7 hereof, the Publicly-Offered Certificates are
not delivered as provided herein, the Depositor, the Seller and Redwood Trust
jointly and severally agree to reimburse each Underwriter for all damages,
losses and out-of-pocket expenses of such Underwriter, including reasonable fees
and disbursements of its counsel, reasonably incurred by such Underwriter in
making preparations for the purchase, sale and delivery of the Publicly-Offered
Certificates, but the Depositor, the Seller and Redwood Trust shall then be
under no further liability to any Underwriter with respect to the
Publicly-Offered Certificates, except as provided in Section 5(a)(iv), Section
8, Section 12 or Section 13 hereof.
10. Certain Definitions. For purposes of this Agreement, the following
terms shall have the respective meanings set forth below:
Computational Materials: Within the meaning of the no-action letter issued
by the staff of the Commission on May 20, 1994 to Xxxxxx, Xxxxxxx Acceptance
Corporation I, et al., as modified by a no-action letter issued by the staff of
the Commission on May 27, 1994 to the Public Securities Association (the "PSA")
and as further modified by a no-action letter issued by the staff of the
Commission on February 17, 1995 to the PSA, tables and/or charts displaying,
with respect to any Class or Classes of Publicly-Offered Certificates, any of
the following: yield; average life; duration; expected maturity; interest rate
sensitivity; loss sensitivity; cash flow characteristics; background information
regarding the Mortgage Loans; proposed structure; or similar information
(tabular or otherwise) of a statistical, mathematical, tabular or computational
nature, which materials are furnished by an Underwriter to prospective
investors.
Seller Mortgage Loan Information: Information relating to the Mortgage
Loans furnished by or on behalf of the Depositor or the Seller to the
Underwriters, upon which the
33
mathematical calculations reflected in the Computational Materials of such
Underwriter are based.
Spread: The excess, if any, of (i) the purchase prices paid by investors to
an Underwriter for the Publicly-Offered Certificates over (ii) the purchase
price paid by such Underwriter to the Depositor for the Publicly-Offered
Certificates purchased by such Underwriter.
Underwriter Information: The only written information furnished by or on
behalf of an Underwriter to the Depositor specifically for use in connection
with the preparation of the Registration Statement or the Prospectus, such
information being (i) the information relating to the Underwriter set forth in
the second, third, fourth and fifth paragraphs and the two tables under the
caption "Method of Distribution" in the Prospectus Supplement and (ii) any
Computational Materials prepared by the Underwriter, furnished to the Depositor
and included in the Form 8-K; provided, however, that such Computational
Materials shall not include (i) any Seller Mortgage Loan Information or any
errors in the mathematical calculations reflected in such Computational
Materials to the extent such errors result from such Seller Mortgage Loan
Information or (ii) any information contained in the Computational Materials
that is also otherwise included in the Prospectus Supplement.
11. Computational Materials. Each Underwriter that desires to furnish
Computational Materials to investors shall furnish two (2) copies thereof, or
deliver by electronic transmission, as applicable, to or at the direction of
Xxxxx & Xxxxx no later than 3:00 p.m. New York City time on the business day
prior to the day on which the Prospectus Supplement is being cleared for
printing. In addition, each Underwriter which has so furnished Computational
Materials to the Depositor hereby represents as to the materials it has
furnished as follows:
34
(a) The Computational Materials so furnished by such Underwriter
include all Computational Materials prepared by such Underwriter that:
(i) are generated based on assumptions regarding the payment
priorities and characteristics of a Class of Publicly-Offered Certificates
that is actually issued and purchased by an Underwriter; and
(ii) are provided to prospective investors under the following
conditions prior to the time of filing of the Prospectus pursuant to Rule
424(b):
A. in the case of each prospective investor that has orally
indicated to such Underwriter that it will purchase all or a portion
of the Class of Publicly-Offered Certificates to which such
Computational Materials relate, the Computational Materials relating
to such Class that are sent to such prospective investor; and
B. for any other prospective investor, all Computational
Materials that are sent to such prospective investor after the
structure for the Publicly-Offered Certificates is finalized;
provided, however, that the Computational Materials so furnished need not
include any Computational Materials that relate to abandoned structures or
that are furnished to prospective investors prior to the time that the
structure of the Publicly-Offered Certificates is finalized where such
investors have not indicated to such Underwriter their intention to
purchase the Class or Classes of Publicly-Offered Certificates described in
such Computational Materials.
35
(b) Neither the Depositor nor any of its affiliates participated in
the preparation of the Computational Materials other than by supplying the
Seller Mortgage Loan Information to the Underwriter.
(c) At or prior to the time any Computational Materials are furnished
to the Depositor for filing on the Form 8-K, the Underwriter furnishing such
Computational Materials will provide to the Depositor a letter, in form and
substance reasonably satisfactory to the Depositor and such Underwriter, of a
firm of independent public accountants of national reputation to the effect that
such accountants have performed certain specified procedures with respect to
such Computational Materials and have found no exceptions, other than such
exceptions as are acceptable to the Depositor and the Underwriter. Each
Underwriter furnishing a letter of the sort described in the preceding sentence
will bear the costs and expenses of such letter.
12. Indemnification. (a) The Depositor, the Seller and Redwood Trust
jointly and severally agree to indemnify and hold harmless each Underwriter and
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they may become subject under the Act, the Exchange
Act, or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or in any revision or amendment thereof or supplement thereto, (ii)
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, (iii) any untrue
statement or alleged untrue
36
statement of a material fact contained in the Prospectus or in any revision or
amendment thereof or supplement therefore, or (iv) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement therein, in the light of the circumstances under
which they were made, not misleading and further agree to promptly reimburse
each such indemnified party for any legal or other expenses reasonably incurred
by it or him, as incurred, in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action;
provided, however, that none of the Depositor, the Seller or Redwood Trust shall
be liable to a particular Underwriter or any person who controls such
Underwriter to the extent that any misstatement or alleged misstatement or
omission or alleged omission was (i) made in the Prospectus or the Registration
Statement pursuant to Underwriter Information or (ii) corrected (with such
correction delivered to the Underwriter) 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 Act
or the Exchange Act, if the Depositor has previously furnished copies thereof to
the Underwriters in accordance with the terms of this Agreement. This indemnity
agreement will be in addition to any liability that the Depositor, the Seller or
Redwood Trust may otherwise have.
(a) Each Underwriter severally agrees to indemnify and hold harmless
the Depositor, Redwood Trust and the Seller, the officers of the Depositor who
signed the Registration Statement or any amendment thereof, the directors of the
Depositor, and each person who controls the Depositor, Redwood Trust or the
Seller within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnities from the Depositor, the Seller and Redwood
Trust to each Underwriter; provided, however, that an Underwriter will be
37
liable in any such case only to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with Underwriter Information furnished by that particular
Underwriter to the Depositor or to a prospective investor; and provided,
further, that any such omission or alleged omission relating to the
Computational Materials included in the Underwriter Information pursuant to the
definition thereof shall be determined by reading such Computational Materials
in conjunction with the Prospectus as an integral document and in the light of
the circumstances under which such statements in the Computational Materials and
Prospectus were made. This indemnity agreement will be in addition to any
liability that any Underwriter may otherwise have.
(b) Promptly after receipt by an indemnified party under this Section
12 of notice of the commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 12, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party, unless the indemnifying party is materially prejudiced by such failure to
notify and in any event shall not relieve the indemnifying party from any
liability which it may have to any indemnified party other than under this
Section 12. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party (including impleaded
38
parties) and the indemnified party or parties shall have reasonably concluded
that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
elect separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable for
any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to local counsel) for each of, and
approved by, the Underwriters in the case of paragraph (a) of this Section 12,
representing the related indemnified parties under such paragraph (a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall only be in respect of the counsel
referred to in such clause (i) or (iii). No indemnifying party shall, without
the consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder
39
by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
13. Contribution. If the indemnification provided for in Section 12 is
unavailable or insufficient to hold harmless an indemnified party under Section
12, then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in Section 12 above in such proportion as is appropriate
to reflect the relative benefits received by the Depositor, the Seller and
Redwood Trust on the one hand and the Underwriter on the other from the offering
of the Publicly-Offered Certificates or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, 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 the Depositor, the Seller and Redwood Trust
on the one hand and the Underwriter on the other in connection with the
statements or omissions or alleged statements or alleged omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the
Depositor, the Seller and Redwood Trust on the one hand and the Underwriters on
the other shall be in such proportion so that the Underwriters are responsible
for an amount equal to the Spread, and the Depositor, the Seller and Redwood
Trust are responsible for the balance. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omissions or alleged omission to state a material fact
relates to information supplied by the Depositor, the Seller or Redwood Trust or
by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first
40
sentence of this Section 13 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
Section 13. An Underwriter shall not be required to contribute any amount in
excess of (x) the Spread of such Underwriter, over (y) the amount of any damages
which the applicable Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. The
obligation of any Underwriter to contribute under this Section 13 is several in
proportion to the portion of the Spread applicable to it. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
14. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns, and no
other person will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
16. No Fiduciary Duty. Each of the Depositor, the Seller and Redwood Trust
(each, a "Redwood Party") acknowledges that in connection with the offering of
the Publicly-Offered Certificates: (a) the Underwriters have acted at arms
length, are not agents of, and owe no fiduciary duties to, any Redwood Party or
any other person, (b) the Underwriters owe the Redwood Parties only those duties
and obligations set forth in this Agreement and (c) the Underwriters may have
interests that differ from those of the Redwood Parties. Each Redwood Party
waives to the full extent permitted by applicable law any claims it may have
against the
41
Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Publicly-Offered Certificates.
17. Miscellaneous. Time shall be of the essence of this Agreement. This
Agreement, together with any contemporaneous written agreements and any prior
written agreements (to the extent not superseded by this Agreement) that relate
to the offering of the Publicly-Offered Certificates, represents the entire
agreement between the Redwood Parties, on the one hand, and the Underwriters, on
the other, with respect to the preparation of the Prospectus, and the conduct of
the offering, and the purchase and sale of the Publicly-Offered Certificates.
Neither this Agreement nor any term hereof may be changed, waived, discharged or
terminated except by a writing signed by the party against whom enforcement of
such change, waiver, discharge or termination is sought. This Agreement may be
signed in any number of counterparts, each of which shall be deemed an original,
which taken together shall constitute one and the same instrument.
18. Notices. All communications hereunder shall be in writing and effective
only on receipt and, if sent to an Underwriter, shall be delivered to the
address specified on the signature page hereof; provided, that in the case of
Xxxxxx Xxxxxxx & Co. Incorporated, a copy of any such communication shall also
be delivered to 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxxxxx
Xxxxx, Esq. If such notice is sent to the Depositor, the Seller or Redwood
Trust, it shall be delivered to Xxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxx,
Xxxxxxxxxx 00000, attention of Xxxx Xxxxxxxxxxx, Vice President.
* * *
42
If the foregoing is in accordance with your understanding of our agreement
please sign and return to the undersigned a counterpart hereof, whereupon this
Agreement and your acceptance shall represent a binding agreement by and among
the Depositor, the Seller, Redwood Trust and each Underwriter relating to the
Publicly-Offered Certificates.
Very truly yours,
REDWOOD TRUST, INC.
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
RWT HOLDINGS, INC.,
as Seller
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
SEQUOIA RESIDENTIAL FUNDING, INC.,
as Depositor
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
The foregoing Agreement
is hereby confirmed and accepted by:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxx
---------------------------------
Name: Xxxxxxx Xxx
Title: Managing Director
Address: Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title:
------------------------------
Address: 000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Schedule 1
Original Class Class Original Amount to be purchased Original Amount to be
Principal Interest Purchase Price by Xxxxxx Xxxxxxx & Co. purchased by Banc of America
Class Amount(1) Rate(2) Percentage Incorporated Securities LLC
----- -------------- -------- -------------- ------------------------------- ----------------------------
1-A1 $133,459,000 Variable 99.8125 $ 66,729,500 $ 66,729,500
1-A2 $ 14,829,000 Variable 99.8125 $ 7,414,500 $ 7,414,500
1-XA $148,288,000* Variable 1.3000 $148,288,000* --
1-XB $ 3,488,000* Variable 2.0000 $ 3,488,000* --
1-AR $ 50 N/A N/A $ 50 --
1-B1 $ 2,093,000 Variable 99.7500 $ 1,046,500 $ 1,046,500
1-B2 $ 1,395,000 Variable 99.7500 $ 697,500 $ 697,500
1-B3 $ 1,706,000 Variable 100.0000 $ 1,706,000 --
2-A1 $160,096,000 Variable 100.0000 -- $160,096,000
2-A2 $ 10,268,000 Variable 100.0000 -- $ 10,268,000
2-AR $ 50 N/A N/A -- $ 50
2-B1 $ 1,740,000 Variable 100.0000 -- $ 1,740,000
2-B2 $ 696,000 Variable 100.0000 -- $ 696,000
2-B3 $ 348,000 Variable 100.0000 -- $ 348,000
----------
* Indicates the Initial Class Notional Amount of such interest-only class.
(1) These balances are approximate, as described in the Prospectus Supplement.
(2) These Publicly-Offered Certificates will accrue interest based on
adjustable interest rates, as described in the Prospectus Supplement.
(3) The Class 1-XA and Class 1-XB Certificates bear interest based upon
notional amounts, as discussed in the Prospectus Supplement.
