EXHIBIT 1.1
RENAISSANCE MORTGAGE ACCEPTANCE CORP.
RENAISSANCE HOME EQUITY LOAN TRUST [o]
HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES [o]
UNDERWRITING AGREEMENT
[o]
Ladies and Gentlemen:
Renaissance Mortgage Acceptance Corp., a Delaware corporation
("Renaissance") has entered into a Trust Agreement, as amended and restated by
the Amended and Restated Trust Agreement, dated as of [o] (collectively, the
"Trust Agreement"), among Renaissance, as depositor, [o], as owner trustee (the
"Owner Trustee") and [o] ("[o]"), as certificate registrar and certificate
paying agent, creating the Renaissance Home Equity Loan Trust [o] (the "Trust"),
a statutory trust created under the laws of the State of Delaware. The Trust has
been established for the purpose of issuing Home Equity Loan Asset-Backed Notes,
Series [o], Class A-1A, Class X-0X, Xxxxx X-0, Class A-3, Class A-4, Class X-0,
Xxxxx X-0, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6,
Class M-7, Class M-8, Class M-9 and Class M-10 Notes (collectively, the "Offered
Notes"), the Class N Notes (together with the Offered Notes, the "Notes") and
certain ownership interests (the "Certificates," and together with the Notes,
the "Securities").
Only the Offered Notes are being purchased by [o] (each an
"Underwriter," and together the "Underwriters") in the amounts set forth in
Schedule A.
The Notes will be secured by the assets of the Trust consisting of,
among other things, a pool of subprime, fixed and adjustable rate, first and
second lien residential mortgage loans (the "Mortgage Loans"), conveyed to the
Trust by Renaissance pursuant to the terms of the Trust Agreement. The Mortgage
Loans were sold to Renaissance by Renaissance REIT Investment Corp. (the
"REIT"), pursuant to a mortgage loan sale and contribution agreement, dated as
of [o] (the "Mortgage Loan Sale Agreement"), among Renaissance, as purchaser,
the REIT, as seller, and Delta Funding Corporation ("Delta Funding"), as
originator. The Mortgage Loans will be serviced pursuant to a servicing
agreement, dated as of [o] (the "Servicing Agreement"), among [o], as master
servicer and securities administrator, [o], as servicer (the "Servicer"), the
Trust and [o], as indenture trustee (the "Indenture Trustee"). [o] has agreed to
act as agent for the Indenture Trustee for the purposes of receiving and holding
certain documents and other instruments delivered by Delta Funding as described
in Section 2.1(b) of the Mortgage Loan Sale Agreement pursuant to a custodial
agreement, dated as of [o] (the "Custodial Agreement"), among the Indenture
Trustee, [o], as custodian, the REIT, Renaissance and the Servicer.
The assets of the Trust will also include certain rights under two
interest rate cap agreements, one related to the Class A-1A Notes (the "Class
A-1A Interest Rate Cap Agreement") and one related to the Class N Notes (the
"Class N Interest Rate Cap Agreement," and together with the Class A-1A Interest
Rate Cap Agreement, the "Interest Rate Cap Agreements"), each dated as of [o]
between the Trust and [o] (the "Cap Provider").
The Notes will be issued pursuant to an indenture, dated as of [o] (the
"Indenture"), among the Trust, the Indenture Trustee and [o], as securities
administrator. The Certificates will evidence fractional undivided interests in
the property held in the Trust. The aggregate class note balance of the Offered
Notes will initially be equal to $[o], which represents approximately [o]% of
the outstanding principal balances of the Mortgage Loans as of the Cut-Off Date.
The "Cut-Off Date" for any Mortgage Loan is the date determined as provided in
Appendix A to the Indenture.
The Offered Notes are more fully described in a Registration Statement
which Renaissance has furnished to the Underwriters. Capitalized terms used but
not defined herein shall have the meanings given to them in Appendix A to the
Indenture.
This Underwriting Agreement, the Trust Agreement, the Mortgage Loan
Sale Agreement, the Servicing Agreement, the Custodial Agreement, the Interest
Rate Cap Agreements and the Indenture are referred to collectively herein as the
"Agreements".
Section I. REPRESENTATIONS AND WARRANTIES OF RENAISSANCE. Renaissance
represents and warrants to, and agrees with the Underwriters that:
A. A Registration Statement on Form S-3 (No. [o]) relating to the
Offered Notes has (i) been prepared by Renaissance in conformity with the
requirements of the Securities Act of 1933, as amended (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 Underwriters. As used in this Underwriting
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; "Prospectus" means such final prospectus, as
first supplemented by a prospectus supplement (the "Prospectus Supplement")
relating to the Offered Notes, as first filed with the Commission pursuant to
paragraph (1) or (4) or (5) of Rule 424(b) of the Rules and Regulations; and
"Preliminary Prospectus" means the preliminary prospectus, dated as of [o],
proposed to be used in connection with the sale of the Offered Notes and filed
with the Commission pursuant to Rule 424(b)(3) of the Rules and Regulations.
Reference made herein to the Prospectus and the Preliminary 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 or as of the date of the Preliminary Prospectus and the date of each
Contract of Sale, 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, as amended (the "Exchange Act") after the date
of the Preliminary Prospectus or the Prospectus, as applicable, and incorporated
by reference in the Preliminary Prospectus or the Prospectus, as applicable; 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 Effective Time that is
incorporated by reference in the Registration Statement. The Commission has not
issued any order preventing or suspending the use of the Prospectus or the
effectiveness of the Registration Statement and no proceedings for such purpose
are pending, or to Renaissance's knowledge, threatened by the Commission. 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.
B. The Registration Statement conforms, and the Preliminary Prospectus,
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 as of the date 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 Preliminary Prospectus, as of its date and as of the
date of each Contract of Sale, and 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 (i) information contained in or omitted from the Registration
Statement, the Prospectus or the Preliminary Prospectus in reliance upon and in
conformity with written information furnished to Renaissance in writing by the
Underwriters expressly for use therein and (ii) any Derived Information (as
defined in Section IX(D) below).
C. The documents incorporated by reference in the Prospectus and the
Preliminary 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, 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, 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 (i) information
contained in or omitted from the Registration Statement, the Prospectus or the
Preliminary Prospectus in reliance upon and in conformity with written
information furnished to Renaissance in writing by the Underwriters expressly
for use therein and (ii) any Derived Information.
D. Since the respective dates as of which information is given in the
Prospectus or the Preliminary Prospectus, and, with respect to the Preliminary
Prospectus, as of the date of hereof, 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 or the Preliminary 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 Notes 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 (other than as
disclosed in the Prospectus Supplement and the Preliminary Prospectus), (b)
asserting the invalidity of the Agreements or the Notes, (c) seeking to prevent
the issuance of the Notes 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 Notes.
G. This Underwriting Agreement has been, and the Trust Agreement and
the Custodial Agreement, when executed and delivered as contemplated hereby and
thereby will have been, duly authorized, executed and delivered by Renaissance,
and this Underwriting Agreement constitutes, and the Trust Agreement and the
Custodial 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 Underwriting
Agreement, limitations of public policy under applicable securities laws.
H. The execution, delivery and performance of the Agreements to which
it is a party by Renaissance and the consummation of the transactions
contemplated hereby and thereby, and the issuance and delivery of the Securities
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,
which breach or violation would have a material adverse effect on the business,
operations or financial condition of Renaissance or its ability to perform its
obligations under any of the Agreements to which it is a party, 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, which violation would have a
material adverse effect on the business, operations or financial condition of
Renaissance or its ability to perform its obligations under any of the
Agreements to which it is a party.
I. The direction by Renaissance to the Indenture Trustee to execute,
authenticate, issue and deliver the Notes has been duly authorized by
Renaissance, and assuming the Indenture Trustee has been duly authorized to
undertake such actions, when executed, authenticated, issued and delivered by
the Indenture Trustee in accordance with the Indenture, the Notes will be
validly issued and outstanding and the holders of the Notes will be entitled to
the rights and benefits of the Notes provided by the Indenture.
J. 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 Securities and the sale of the
Offered Notes to the Underwriters, 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 Offered Notes by the Underwriters or as have been obtained.
K. At the time of execution and delivery of the Trust Agreement, the
Trust will: (i) have equitable title to the Mortgage Loans conveyed by
Renaissance, 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 Indenture 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 Indenture Trustee);
and (iii) have the power and authority to sell its interest in the Mortgage
Loans to the Trust and to sell the Offered Notes to the Underwriters. Upon
execution and delivery of the Trust Agreement by the Owner Trustee, the Trust
will have acquired beneficial ownership of all of Renaissance's right, title and
interest in and to the Mortgage Loans. Upon delivery to the Underwriters of the
Offered Notes, the Underwriters will have good title to the Offered Notes free
of any Liens.
L. Neither Renaissance nor the Trust is an "investment company" within
the meaning of such term under the Investment Company Act of 1940, as amended
(the "1940 Act") and the rules and regulations of the Commission thereunder.
M. As of the Closing Date, the Notes and the Agreements will conform in
all material respects to the descriptions thereof contained in the Prospectus
and the Preliminary Prospectus.
N. As of the Closing Date, each Class of Notes shall have been assigned
a rating (as to each the "Required Ratings") by each of [o] (the "Rating
Agencies") as set forth in the Prospectus Supplement.
O. Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of the Agreements and the Securities have
been paid or will be paid at or prior to the Closing Date.
P. 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 the Preliminary 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.
Q. As of the Cut-Off Date, each of the Mortgage Loans will meet the
eligibility criteria described in the Prospectus and the Preliminary Prospectus
and will conform in all material respects to the descriptions thereof contained
in the Prospectus and the Preliminary Prospectus.
R. As of the Closing Date, each of the representations and warranties
of Renaissance set forth in Section 2.10 of the Trust Agreement will be true and
correct in all material respects.
S. Any certificate signed by an officer of Renaissance and delivered to
the Underwriters or counsel for the Underwriters in connection with an offering
of the Offered Notes 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.
T. Renaissance hereby represents, warrants and agrees to and with the
Underwriters severally that, as of the Closing Date, that the relationship
between itself, the Trust and each of the Underwriters is an arms-length
commercial relationship and that no fiduciary duty or any other obligation
arising out of a relationship of higher trust exists between Renaissance, the
Trust and any of the Underwriters.
U. As of the date hereof, Renaissance hereby represents and warrants
that it is not an "ineligible issuer" as defined in Rule 405 under the
Securities Act.
Section II. PURCHASE AND SALE. The several commitments of the
Underwriters to purchase the Offered Notes pursuant to this Underwriting
Agreement shall be deemed to have been made on the basis of the representations
and warranties contained herein and in the Agreements and shall be subject to
the satisfaction of the terms and conditions set forth herein and in the
Agreements. Renaissance agrees to instruct the Trust to issue the Notes, and
agrees to sell to each Underwriter, and each Underwriter agrees to (except as
provided in Sections VII and XI hereof) severally and not jointly to purchase
from Renaissance, the Offered Notes upon the terms and conditions set forth
herein in the amounts set forth in Annex A hereto.
Section III. DELIVERY AND PAYMENT. Delivery of and payment for the
Offered Notes to be purchased by the Underwriters against payment of the
purchase price therefor, set forth in Schedule A hereto, shall be made at the
offices of Xxxxxxx Xxxxxxxx & Xxxx LLP, 2 World Financial Center, Xxx Xxxx, Xxx
Xxxx 00000, or at such other place as shall be agreed upon by the Underwriters
and Renaissance at 10:00 a.m. New York City time on [o], or at such other time
or date as shall be agreed upon in writing by the Underwriters 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 or its designee. Delivery of the Offered Notes shall be made to the
Underwriters for the accounts of the several Underwriters against payment of the
purchase price thereof. The Offered Notes shall be in such denominations and
registered in such names as the Underwriters may request in writing at least two
Business Days prior to the Closing Date. The Offered Notes will be made
available for examination by the Underwriters no later than 2:00 p.m. New York
City time on the first Business Day prior to the Closing Date.
Section IV. OFFERING BY THE UNDERWRITERS. It is understood that,
subject to the terms and conditions hereof, the Underwriters propose to offer
the Offered Notes 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 and to have prepared the Preliminary
Prospectus in a form approved by the Underwriters and to file such Prospectus
and Preliminary 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 Underwriters, 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 Notes, 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 Underwriters 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 Notes, to promptly advise
the Underwriters 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 Notes for
offering or sale in any jurisdiction; (iii) the initiation of or threat of any
proceeding for any such purpose; or (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 Underwriters and to counsel for the
Underwriters 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 Underwriters such number of the following
documents as the Underwriters 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, the
Preliminary 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 Notes, 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 Underwriters and, upon the request of the
Underwriters, shall file such document and prepare and furnish without charge to
the Underwriters and to any dealer in securities as many copies as the
Underwriters 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 Underwriters are required to deliver a
Prospectus in connection with sales of any of the Offered Notes at any time nine
months or more after the Effective Time, upon the request of the Underwriters
but at their expense, Renaissance shall prepare and deliver to the Underwriters
as many copies as the Underwriters may reasonably request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
Neither the Underwriters' consent to, nor the Underwriters' 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, the Prospectus, the Preliminary Prospectus or any
supplement to the Prospectus that may, in the judgment of Renaissance or the
Underwriters, 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 or Preliminary Prospectus pursuant to Rule 424 of
the Rules and Regulations, to furnish a copy thereof to the Underwriters and
counsel for the Underwriters and obtain the consent of the Underwriters to the
filing.
F. To make generally available to holders of the Offered Notes 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 Underwriters, to
qualify the Offered Notes for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Underwriters 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 Notes; 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 Underwriting
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
Notes have been so qualified.
H. So long as the Offered Notes shall be outstanding, to deliver to the
Underwriters 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 or Section 4.10 of the Servicing Agreement; (ii) the annual statement of a
firm of independent public accountants furnished to the Trustee pursuant to
Section 3.10 or Section 4.11 of the Servicing Agreement; and (iii) the monthly
statement furnished to the Noteholders pursuant to Section 7.05 of the
Indenture.
I. To apply the net proceeds from the sale of the Offered Notes in the
manner set forth in the Prospectus and the Preliminary Prospectus.
J. To file with the Commission, in accordance with the Rules and
Regulations, specific information concerning the Offered Notes and the Mortgage
Loans to the extent that such information is not set forth in the Prospectus and
also to file with the Commission, in accordance with the Rules and Regulations,
all ABS Informational and Computational Materials and Issuer Free Writing
Prospectuses (as each defined in Section VI hereof) within the applicable time
periods allotted for such filing pursuant to the Rules and Regulations.
K. In connection with any ABS Informational and Computational Materials
and Issuer Free Writing Prospectuses, to receive a letter from [o] 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 ABS Informational and
Computational Materials and Issuer Free Writing Prospectuses (if any), 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 Delta
Funding.
L. Renaissance shall not be required to file (1) any Issuer Free
Writing Prospectus, if the information included therein is included or
incorporated by reference in a prospectus or Issuer Free Writing Prospectus
previously filed with the Commission that relates to the offering of the Notes
or (2) any Issuer Free Writing Prospectus or portion thereof that contains a
description of the Notes or the offering of the Notes which does not reflect the
final terms thereof.
M. Unless the Underwriters shall otherwise have given their written
consent, no home equity loan asset-backed notes 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 Notes to the public.
N. In connection with the Preliminary Prospectus, to have received, and
the Prospectus, to receive, a letter from [o] 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 Preliminary Prospectus and the Prospectus, 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 Delta
Funding.
Section VI. INVESTOR INFORMATION. Each Underwriter represents and
agrees with Renaissance that not less than 24 hours prior (or such shorter time
as may be agreed upon between such Underwriter and Renaissance) to entering into
any "contract of sale" as defined in Rule 159 of the Securities Act (each a
"Contract of Sale"), the Underwriter has conveyed the Preliminary Prospectus to
each prospective investor. Each Underwriter shall keep sufficient records to
document its conveyance of the Preliminary Prospectus to each potential investor
prior to the related Contract of Sale and shall maintain such records as
required by the Rules and Regulations. An Underwriter may prepare and have
provided, and with respect to (ii) below, Renaissance may prepare and have
provided, to prospective investors in connection with its offering of the
Offered Notes (i) "ABS informational and computational materials" as defined in
Item 1101(a) of Regulation AB promulgated by the Commission, which may include
both an Issuer Free Writing Prospectus and Derived Information, (collectively,
"ABS Informational and Computational Materials"), (ii) any "free writing
prospectus" within the meaning of Rule 405 under the Securities Act that
describes the Offered Notes and/or the Mortgage Loans and contains information
described in paragraphs (1) - (3) of the definition of "ABS informational and
computational materials in Item 1101(a) of Regulation AB but which does not
include Derived Information (each, an "Issuer Free Writing Prospectus") or (iii)
any "free writing prospectus" within the meaning of Rule 405 under the
Securities Act that includes only the information described in paragraph (5) of
the definition of "ABS informational and computational materials" in Item
1101(a) of Regulation AB (each, an "Underwriter Free Writing Prospectus"),
subject to the following conditions:
A. An Underwriter may furnish ABS Informational and Computational
Materials or an Issuer Free Writing Prospectus to a potential investor prior to
entering into a Contract of Sale with such investor; provided, however, that (x)
such Underwriter shall not enter into a Contract of Sale with such investor
unless the Underwriter has conveyed the Preliminary Prospectus to such potential
investor not less than 24 hours prior (or such shorter time as may be agreed
upon between such Underwriter and Renaissance) to such Contract of Sale, (y)
such Underwriter shall deliver a copy of the proposed ABS Informational and
Computational Materials or Issuer Free Writing Prospectus, not otherwise
provided by Renaissance, to Renaissance and its counsel at least 24 hours prior
to the anticipated first use and (z) such Underwriter shall not convey any such
ABS Informational and Computational Materials or Issuer Free Writing Prospectus
to which Renaissance and its counsel reasonably objects.
Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Securities Act, an Underwriter shall not
convey or deliver any written communication to any person in connection with the
initial offering of the Notes, unless such written communication (1) is made in
reliance on Rule 134 under the Securities Act, (2) constitutes a prospectus
satisfying the requirements of Rule 430B under the Securities Act or (3) is an
Issuer Free Writing Prospectus, an Underwriter Free Writing Prospectus or ABS
Informational and Computational Materials.
If an Underwriter does not furnish ABS Informational and Computational
Materials or an Issuer Free Writing Prospectus to the Renaissance's counsel
prior to the scheduled print date of the Prospectus Supplement, such Underwriter
will be deemed to have represented that it did not convey any ABS Informational
and Computational Materials or Issuer Free Writing Prospectus to any potential
investor.
B. An Underwriter may furnish an Underwriter Free Writing Prospectus to
(x) a potential investor not less than 24 hours prior (or such shorter time as
may be agreed upon between such Underwriter and Renaissance) to entering into a
Contract of Sale with such investor; provided, however, that such Underwriter
shall not enter into a Contract of Sale with such investor unless such
Underwriter has conveyed the Preliminary Prospectus to such potential investor
not less than 24 hours prior (or such shorter time as may be agreed upon between
such Underwriter and Renaissance) to such Contract of Sale and (y) to an
investor after a Contract of Sale; provided, that such Underwriter has conveyed
the Preliminary Prospectus to such investor in connection with such Contract of
Sale. Each Underwriter agrees that it shall not broadly disseminate any
Underwriter Free Writing Prospectuses.
C. The Underwriters shall provide to Renaissance any ABS Informational
and Computational Materials and Issuer Free Writing Prospectuses, not otherwise
provided by Renaissance, which are provided to investors, together, in the case
of any ABS Informational and Computational Materials, with a letter, reasonably
acceptable to the Underwriters and Renaissance, from [o] with regard to such ABS
Informational and Computational Materials, no later than the two Business Days
following the date such ABS Informational and Computational Materials or Issuer
Free Writing Prospectuses are conveyed. The Underwriters 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 any Underwriter or Renaissance becomes aware that,
as of the time of the Contract of Sale, any Free Writing Prospectus prepared by
or on behalf of the Underwriter and delivered to a purchaser of an Offered
Certificate contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading (such Free Writing Prospectus, a "Defective Free Writing
Prospectus"), such Underwriter or Renaissance, as applicable, shall notify the
other parties to this Agreement thereof within one business day after discovery.
(1) The party responsible for the information to be corrected, if
requested by Renaissance or an Underwriter, as applicable, shall prepare an
Issuer Free Writing Prospectus with corrective information that corrects the
material misstatement in or omission from the Defective Free Writing Prospectus
(such corrected Free Writing Prospectus, a "Corrected Free Writing Prospectus");
(2) The Underwriters shall deliver the Corrected Free Writing
Prospectus to each purchaser of an Offered Note which received the Defective
Free Writing Prospectus prior to entering into an agreement to purchase any
Offered Notes;
(3) The Underwriters shall notify such purchaser in a prominent fashion
that the prior agreement to purchase Offered Notes has been terminated, and of
such purchaser's rights as a result of termination of such agreement; and
(4) The Underwriters shall provide such purchaser with an opportunity
to affirmatively agree to purchase such Offered Notes on the terms described in
the Corrected Free Writing Prospectus.
E. All Issuer Free Writing Prospectuses and Underwriter Free Writing
Prospectuses shall contain legends similar to the following legends in all
material respects and may contain additional legends as permitted by law:
1. The issuer has filed a registration statement (including a
prospectus) with the SEC for the offering to which this free writing
prospectus relates. Before you invest, you should read the prospectus
in that registration statement and other documents the issuer has filed
with the SEC for more complete information about the issuer and this
offering. You may get these documents for free by visiting XXXXX on the
SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter
or any dealer participating in the offering will arrange to send you
the prospectus if you request it by calling [telephone number].
2. This free writing prospectus is not required to contain all
information that is required to be included in the base prospectus and
the prospectus supplement.
3. The information in this free writing prospectus is preliminary and
is subject to completion or change.
4. The information in this free writing prospectus, if conveyed prior
to the time of your commitment to purchase, supersedes information
contained in any prior similar free writing prospectus relating to
these securities.
5. This free writing prospectus is not an offer to sell or a
solicitation of an offer to buy these securities in any state where
such offer, solicitation or sale is not permitted.
All Underwriter Free Writing Prospectuses, in addition to those
specified in clauses (1) through (5) above, contain legends similar to the
following legends in all material respects and may contain additional legends as
permitted by law:
6. Neither the issuer of the securities nor any of its affiliates
prepared, provided, approved or verified any statistical or numerical
information presented in this free writing prospectus, although that
information may be based in part on loan level data provided by the
issuer or its affiliates.
7. The information in this free writing prospectus may be based on
preliminary assumptions about the pool assets and the structure. Any
such assumptions are subject to change.
8. The information in this free writing prospectus may reflect
parameters, metrics or scenarios specifically requested by you. If so,
prior to the time of your commitment to purchase, you should request
updated information based on any parameters, metrics or scenarios
specifically required by you.
F. The Underwriters furnishing such ABS Informational and Computational
Materials represent to Renaissance that the Derived Information included in the
ABS Informational and Computational Materials of such Underwriter does not
contain an untrue statement of a material fact or, when read in conjunction with
the Prospectus as an integral document, do not 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 the Delta Funding Provided Information (as
defined below) or (y) that the Prospectus (exclusive of such ABS Informational
and Computational 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. No Underwriter has delivered any ABS Informational or
Computational Materials or Underwriter Free Writing Prospectuses incorporating
Derived Information simultaneously with the Preliminary Prospectus.
Section VII. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The
obligation of the Underwriters to purchase the Offered Notes pursuant to this
Underwriting Agreement is subject to: (i) the accuracy on and as of the Closing
Date of the representations and warranties on the part of Renaissance and the
Trust contained herein and in the Agreements to which it is a party; (ii) the
performance by Renaissance and the Trust of all of its obligations hereunder and
in the Agreements to which it is a party; and (iii) the following conditions as
of the Closing Date:
A. The Underwriters 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, the Prospectus or the
Preliminary Prospectus shall have been complied with.
B. The Underwriters shall not have discovered and disclosed to
Renaissance, on or prior to the Closing Date, that the Registration Statement,
the Prospectus, the Preliminary 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 [o], counsel for the Underwriters, 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 Notes, the
Registration Statement, the Prospectus and the Preliminary Prospectus, and all
other legal matters relating to this Underwriting Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to counsel for the
Underwriters, 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.
D. Xxxxxxx Xxxxxxxx & Wood LLP shall have furnished to the Underwriters
their written opinion, as special counsel to Renaissance, the REIT and Delta
Funding, addressed to each Underwriter and dated the Closing Date, in form and
substance satisfactory to the Underwriters and their counsel.
E. The Underwriters shall have received the favorable opinion, dated
the Closing Date, of Xxxxxxx Xxxxxxxx & Xxxx LLP, special counsel for
Renaissance, addressed to Renaissance and satisfactory to the Rating Agencies
and the Underwriters, with respect to certain matters relating to the transfer
of the Mortgage Loans to Renaissance from the Mortgage Loan seller 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.
F. Counsel for Renaissance, the REIT and Delta Funding shall have
furnished to the Underwriters its written opinion, addressed to each Underwriter
and dated the Closing Date, in form and substance satisfactory to the
Underwriters and their counsel.
G. The Underwriters shall have received the favorable opinion, dated
the Closing Date, of the in-house counsel to [o] addressed to each Underwriter
and in form and scope satisfactory to counsel to the Underwriters and their
counsel.
H. The Underwriters shall have received the favorable opinion or
opinions, dated the date of the Closing Date, of counsel for the Underwriters,
with respect to the issue and sale of the Certificates, the Registration
Statement, this Agreement, the Prospectus, the Preliminary Prospectus and such
other related matters as the Underwriters may reasonably require.
I. The Underwriters shall have received the favorable opinion, dated
the Closing Date, of the counsel to the Trust addressed to each Underwriter,
regarding (i) the due organization of the Trust, (ii) the enforceability of the
Agreements to which it is a party, (iii) other general Delaware law matters with
respect to the Trust, including, without limitation, the due authorization,
execution and delivery by of the Agreements to which it is a party and the due
authorization and issuance of the Notes, and (iv) the perfection and priority of
the security interests created by the Indenture, in each case, in form and
substance satisfactory to counsel to the Underwriters.
J. Renaissance shall have furnished to the Underwriters 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 Underwriting 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, the
Prospectus and the Preliminary Prospectus and, in his opinion (x) as of
the Effective Date, the Registration Statement, the Prospectus and the
Preliminary 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, the Prospectus or the Preliminary Prospectus.
K. The Indenture Trustee shall have furnished to the Underwriters a
certificate of the Indenture Trustee, signed by one or more duly authorized
officers of the Indenture Trustee, dated the Closing Date, as to the due
authorization, execution and delivery of the Indenture by the Indenture Trustee
and the acceptance by the Indenture Trustee of the trusts created by the Trust
Agreement and the due execution, authentication and delivery of the Notes by the
Indenture Trustee under the Indenture and such other matters as the Underwriters
shall reasonably request.
L. As of the Closing Date, the Notes shall have been assigned the
Required Ratings by each of the Rating Agencies.
M. The Underwriters shall have received on or before the Closing Date,
from [o], letters, dated as of the date of this Underwriting 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 letters.
N. Prior to the Closing Date, counsel for the Underwriters 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 Notes
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 or its affiliates in connection with the issuance of the
Securities and the sale of the Notes as herein contemplated shall be
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters.
O. Subsequent to the execution and delivery of this Underwriting
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 Underwriters, impractical
or inadvisable to proceed with the public offering or delivery of the Notes on
the terms and in the manner contemplated in the Prospectus.
P. Counsel for the Servicer shall have furnished to the Underwriters
its written opinion, addressed to each Underwriter and dated the Closing Date,
in form and substance satisfactory to the Underwriters and their counsel.
Q. Counsel for [o] shall have furnished to the Underwriters its written
opinion, addressed to each Underwriter and dated the Closing Date, in form and
substance satisfactory to the Underwriters and their counsel.
R. The Underwriters shall have received the favorable opinion, dated
the Closing Date, of counsel to the Owner Trustee addressed to each Underwriter,
regarding the due organization of the Owner Trustee, the due authorization,
execution and delivery by the Owner Trustee of the Trust Agreement, no conflicts
or violations of organizational documents, contracts or laws and other related
matters, in form and substance satisfactory to counsel to the Underwriters.
S. Each Interest Rate Cap Agreement will be executed and delivered by
the Trust and the Cap Provider. Each Interest Rate Cap Agreement shall have been
duly authenticated by an authorized agent of the Cap Provider, if so required
under applicable state law or regulations.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Underwriting 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 Underwriters.
If any condition specified in this Section VII shall not have been
fulfilled when and as required to be fulfilled, this Underwriting Agreement may
be terminated by any Underwriter by notice to Renaissance at any time on 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
Underwriters, Renaissance agrees to pay: (a) the costs incident to the
authorization, issuance, sale and delivery of the Offered Notes and any taxes
payable in connection therewith; (b) the cost incident to the Underwriters' 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 amendment
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 Underwriting
Agreement; (e) the costs of reproducing and distributing this Underwriting
Agreement; (f) the fees and expenses of qualifying the Notes 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
Underwriters); (g) any fees charged by securities rating services for rating the
Notes; (h) any fees charged by any accounting firms for comforting any numbers
in the Prospectus Supplement and the Preliminary Prospectus; (i) the costs of
each Interest Rate Cap Agreement charged by the Cap Provider and (j) 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 Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Offered Notes which they may sell and the expenses of advertising any
offering of the Notes made by the Underwriters.
If this Underwriting Agreement is terminated by any Underwriter in
accordance with the provisions of Section VII or Section XI, Renaissance shall
reimburse the Underwriters for all reasonable out of pocket expenses, including
fees and disbursements of [o].
Section IX. INDEMNIFICATION AND CONTRIBUTION.
A. Renaissance agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls such 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 Notes) to which such 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 of 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, the
Preliminary Prospectus, any ABS Informational and Computational Materials,
Issuer Free Writing Prospectus or Delta Funding Provided Information used in the
preparation of any Underwriter Free Writing Prospectus or (iv) the omission or
alleged omission of 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. Renaissance shall reimburse such Underwriter and
each such controlling person promptly upon demand for any legal or other
expenses reasonably incurred by such Underwriter or such controlling person in
connection with investigating, 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, omission or
alleged omission made (i) in the Prospectus, the Preliminary Prospectus or the
Registration Statement in reliance upon and in conformity with written
information furnished to Renaissance by or on behalf of any Underwriter
specifically for inclusion therein or (ii) in the Derived Information, except to
the extent such misstatement or omission arises from a misstatement or omission
in the Delta Funding Provided Information. The foregoing indemnity agreement is
in addition to any liability which Renaissance may otherwise have to the
Underwriters or any controlling person of the Underwriters.
B. The Underwriters agree 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,
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 of 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, the Preliminary Prospectus or any ABS Informational and
Computational Materials or (iv) the omission or alleged omission of 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 (a) made in reliance upon and in
conformity with written information furnished to Renaissance by or on behalf of
the Underwriters specifically for inclusion therein and (b) in the Derived
Information, other than a misstatement or omission arising from a misstatement
or omission in the Delta Funding Provided Information. In such case, the
Underwriters 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, 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 Underwriters 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.
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 Underwriters, if the indemnified
parties under this Section IX consist of the Underwriters or any of their
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.
Notwithstanding the foregoing paragraph, 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 Underwriting Agreement, as to the Underwriters,
"Derived Information" means the information specified in paragraph (5) of the
definition of "ABS informational and computational materials" in Item 1101(a) of
Regulation AB, which information (i) is not contained in the Prospectus or the
Preliminary Prospectus without taking into account information incorporated
therein by reference and (ii) does not constitute Delta Funding Provided
Information. "Delta Funding Provided Information" means any computer tape (or
other information) furnished to any Underwriter by or on behalf of Delta Funding
concerning the assets of the Trust.
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, 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, liability, or action in respect thereof (a) if such loss, claim, damage
or liability does not arise from ABS Informational and Computational Materials
or an Issuer Free Writing Prospectus, (1) in such proportion as shall be
appropriate to reflect the relative benefits received by Renaissance on the one
hand and the Underwriters on the other from the offering of the Offered Notes or
(2) if the allocation provided by clause (1) 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 (1) above but also the relative
fault of Renaissance on the one hand and the Underwriters 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 ABS Informational and Computational Materials or an Issuer Free Writing
Prospectus, in such proportion as is appropriate to reflect the relative
benefits received by Renaissance on the one hand and the Underwriters on the
other from the offering of the Offered Notes and the relative fault of
Renaissance on the one hand and the Underwriters 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 Underwriters and Renaissance shall be
deemed to be in such proportions that the Underwriters are responsible for that
portion of such losses, liabilities, claims, damages and expenses represented by
the dollar amount 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 Underwriters 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 Underwriters, 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.
Renaissance and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section IX(E) 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 any Underwriter be responsible for any amount in
excess of the discount earned by such Underwriter as described on page [o] of
the Prospectus Supplement, 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 Underwriters confirm that the information set forth in the first
sentence of the second paragraph under the caption "Underwriting" in the
Prospectus Supplement and the first sentence of the third paragraph below the
table on the cover of the Prospectus Supplement constitute the only information
furnished in writing to Renaissance by or on behalf of the Underwriters
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
Underwriting 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 Underwriters or
controlling persons thereof, or by or on behalf of Renaissance and shall survive
delivery of any Notes to the Underwriters.
Section XI. TERMINATION OF AGREEMENT. The Underwriters may terminate
this Underwriting Agreement immediately upon notice to Renaissance, at any time
on or prior to the Closing Date if any of the events or conditions described in
Section VII(O) of this Underwriting 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, XII and XIV shall remain in effect.
Section XII. DELTA FUNDING'S OBLIGATION. Delta Funding agrees with each
Underwriter, for the sole and exclusive benefit of such Underwriter and each
person who controls such Underwriter within the meaning of either the Securities
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 such Underwriter within
the meaning of either the Securities Act or the Exchange Act against any failure
by Renaissance to perform any of its obligations under this Underwriting
Agreement. Delta Funding agrees that there are no conditions precedent to the
obligations of Delta Funding hereunder, other than written demand to Renaissance
to perform its obligations under this Underwriting Agreement.
Section XIII. NOTICES. All statements, requests, notices and agreements
hereunder shall be in writing, and:
A. if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to: (i) [o];
B. if to Delta Funding, shall be delivered or sent by mail, telex or
facsimile transmission to Delta Funding Corporation, 0000 Xxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000, Attention: General Counsel, Fax: (000) 000-0000; and
C. if to Renaissance, shall be delivered or sent by mail, telex or
facsimile transmission to Renaissance Mortgage Acceptance Corp., 0000 Xxxxxxxx
Xxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: General Counsel, Fax: (000) 000-0000.
Section XIV. PERSONS ENTITLED TO THE BENEFIT OF THIS UNDERWRITING
AGREEMENT. This Underwriting Agreement shall inure to the benefit of and be
binding upon the Underwriters and Renaissance, and their respective successors.
This Underwriting 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 Underwriting Agreement shall also
be deemed to be for the benefit of the person or persons, if any, who control
any 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 Underwriting
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section XIV, any legal or equitable right, remedy or
claim under or in respect of this Underwriting Agreement or any provision
contained herein.
Section XV. SURVIVAL. The respective indemnities, representations,
warranties and agreements of Renaissance, Delta Funding and the Underwriters
contained in this Underwriting Agreement, or made by or on behalf of any of them
pursuant to this Underwriting Agreement, shall survive the delivery of and
payment for the Notes 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 Underwriting Agreement, "Business Day" means any day on which the New York
Stock Exchange, Inc. is open for trading.
Section XVII. GOVERNING LAW. This Underwriting Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
Section XVIII. COUNTERPARTS. This Underwriting 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 Underwriting Agreement.
If the foregoing correctly sets forth the agreement among Delta
Funding, Renaissance and the Underwriters, 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:
[o]
By: ____________________________
Name:
Title:
[o]
By: ____________________________
Name:
Title:
[o]
By: ____________________________
Name:
Title:
[o]
By: ____________________________
Name:
Title:
SCHEDULE A*
CLASS [o]NOTES
Underwriter Principal Amount Discount Purchase Price
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TOTAL:
