EXECUTION COPY
C-BASS MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
SERIES 2000-CB4
UNDERWRITING AGREEMENT
<PAGE>
UNDERWRITING AGREEMENT
First Union Securities, Inc.
301 South College Street
Charlotte, North Carolina 28202-6001
Bear, Stearns & Co. Inc.
December 7, 2000
Dear Sirs:
Residential Asset Funding Corporation (the "Depositor") proposes, subject
to the terms and conditions stated herein and in the attached Underwriting
Agreement Standard Provisions, dated December 7, 2000 (the "Standard
Provisions"), between the Depositor and First Union Securities, Inc. ("First
Union") to issue and sell to you (the "Underwriters") the securities specified
in Schedule I hereto (the "Offered Securities") in the amounts set forth in
Schedule I hereto. The Depositor agrees that each of the provisions of the
Standard Provisions is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Underwriting Agreement. Each reference to the "Representative"
herein and in the provisions of the Standard Provisions so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Standard Provisions are used herein as therein defined. The
Prospectus Supplement and the accompanying Prospectus relating to the Offered
Securities (together, the "Prospectus") are incorporated by reference herein.
Subject to the terms and conditions set forth herein and in the Standard
Provisions incorporated herein by reference, the Depositor agrees to cause the
Trustee to issue and sell to the Underwriters, and the Underwriters agree to
purchase from the Depositor, at the time and place and at the purchase price to
the Underwriters and in the manner set forth in Schedule I hereto, the original
principal balance of the Offered Securities.
[Remainder of Page Intentionally Left Blank]
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If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof, including the provisions of the Standard
Provisions incorporated herein by reference, shall constitute a binding
agreement between the Underwriters and the Depositor.
Yours truly,
RESIDENTIAL ASSET FUNDING
CORPORATION
By: /s/ Eric Kaplan
---------------------------
Name: Eric Kaplan
Title: Vice President
Accepted as of the date hereof:
FIRST UNION SECURITIES, INC.,
as representative of the several Underwriters
By: /s/ Eric Kaplan
--------------------------
Name: Eric Kaplan
Title: Vice President
[Signature Page to Underwriting Agreement]
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SCHEDULE I
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<S> <C>
Trust: C-BASS Mortgage Loan Trust 2000-CB4.
Title of Offered Securities: C-BASS Mortgage Loan Asset-Backed Certificates, Series 2000-CB4,
Class A-1F, A-2F, A-2A, M-1, M-2 and B-1.
Terms of Offered Securities: The Offered Securities shall have the terms set forth in the Prospectus
and shall conform in all material respects to the descriptions thereof
contained therein, and shall be issued pursuant to a Pooling and Servicing
Agreement to be dated as of November 1, 2000 among the Depositor, The Chase
Manhattan Bank, as Trustee, Credit-Based Asset Servicing and Securitization
LLC, as Seller and Litton Loan Servicing LP, as servicer.
</TABLE>
<TABLE>
<CAPTION>
Purchase Commitment: Class First Union Bear, Stearns
----- ----------- -------------
<S> <C> <C> <C>
A-1F $27,480,000 $ 7,000,000
A-2F 18,820,000 --
A-1A 65,771,000 16,000,000
M-1 11,531,000 --
M-2 7,825,000 --
B-1 4,942,000 --
</TABLE>
<TABLE>
<S> <C>
Purchase Price: The purchase price for the Offered Securities shall be 99.69653%
of the aggregate principal balance of the Class A-1F
Certificates, 99.69748% of the aggregate principal balance of the
Class A-2F Certificates, 99.70% of the aggregate principal
balance of the Class A-1A Certificates, 99.59185% of the
aggregate principal balance of the Class M-1 Certificates,
99.54885% of the aggregate principal balance of the Class M-2
Certificates and 99.49671% of the aggregate principal balance of
the Class B-1 Certificates, as of the Closing Date.
Specified funds for payment of
Purchase Price: Federal Funds (immediately available funds).
Required Ratings: Ratings
-------
</TABLE>
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<TABLE>
<CAPTION>
Class Moody's S&P Fitch
----- ------- ----- ------
<S> <C> <C> <C> <C>
A-1F Aaa AAA AAA
A-2F Aaa AAA AAA
A-1A Aaa AAA AAA
M-1 Aa2 AA AA
M-2 A2 A A
B-1 Baa2 BBB BBB
</TABLE>
<TABLE>
<S> <C>
Closing Date: On or about December 13, 2000, at 10:00
A.M. eastern standard time or at such
other time as the Depositor and the
Underwriters shall agree.
Closing Location: Offices of Dewey Ballantine LLP,
1301 6th Avenue
New York, New York 10019
Representative: First Union Securities, Inc.
Address for Notices, etc.: First Union Securities, Inc.
One First Union Center
301 South College Street
Charlotte, North Carolina 28202-6001
Attn: General Counsel
</TABLE>
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STANDARD PROVISIONS TO UNDERWRITING AGREEMENT
December 7, 2000
From time to time, Residential Asset Funding Corporation, a North Carolina
corporation (the "Depositor") may enter into one or more underwriting agreements
(each, an "Underwriting Agreement") that provide for the sale of designated
securities to the several Underwriters named therein (such underwriters
constituting the "Underwriters" with respect to such Underwriting Agreement and
the securities specified therein). The several underwriters named in an
Underwriting Agreement will be represented by one or more representatives as
named in such Underwriting Agreement (collectively, the "Representative"). The
term "Representative" also refers to a single firm acting as sole Underwriter.
The standard provisions set forth herein (the "Standard Provisions") may be
incorporated by reference in any Underwriting Agreement. This Agreement shall
not be construed as an obligation of the Depositor to sell any securities or as
an obligation of any of the Underwriters to purchase such securities. The
obligation of the Depositor to sell any securities and the obligation of any of
the Underwriters to purchase any of the securities shall be evidenced by the
Underwriting Agreement with respect to the securities specified therein. An
Underwriting Agreement shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of the communications transmitted. The obligations of the
Underwriters under this Agreement and each Underwriting Agreement shall be
several and not joint. Unless otherwise defined herein, the terms defined in the
Underwriting Agreement are used herein as defined in the Prospectus referred to
below.
SECTION 1. THE OFFERED SECURITIES. The Depositor proposes to cause the
Trustee to sell, pursuant to the Underwriting Agreement to the Underwriter or
Underwriters named therein, asset backed certificates (the "Offered Securities")
representing undivided ownership interests in a pool of mortgage loans (the
"Mortgage Loans") and certain related property. The Offered Securities will be
issued pursuant to a pooling and servicing agreement (the "Pooling and Servicing
Agreement") dated as of November 1, 2000 among the Depositor, The Chase
Manhattan Bank, a New York banking corporation, as trustee (the "Trustee"),
Credit-Based Asset Servicing and Securitization LLC, as seller and Litton Loan
Servicing, LP, as servicer (the "Servicer"). The underlying loans were
originated or acquired by Credit-Based Asset Servicing and Securitization LLC
(the "Seller"). The Seller will convey the Mortgage Loans to the Depositor
pursuant to a purchase agreement (the "Purchase Agreement") which will in turn
convey the Mortgage Loans to the Trustee pursuant to the Pooling and Servicing
Agreement. The Mortgage Loans are to be serviced pursuant to the Pooling and
Servicing Agreement.
The Depositor has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-81721),
including a prospectus relating to the Offered Securities under the Securities
Act of 1933, as amended (the "1933 Act"). The term "Registration Statement"
means such registration statement as amended to the date of the Underwriting
Agreement. The term "Base Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Base Prospectus
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together with the prospectus supplement specifically relating to the Offered
Securities, as first filed with the Commission pursuant to Rule 424.
SECTION 2. OFFERING BY THE UNDERWRITERS. Upon the execution of the
Underwriting Agreement with respect to any Offered Securities and the
authorization by the Representative of the release of such Offered Securities,
the several Underwriters propose to offer for sale to the public the Offered
Securities at the prices and upon the terms set forth in the Prospectus.
SECTION 3. PURCHASE, SALE AND DELIVERY OF THE OFFERED SECURITIES. Unless
otherwise specified in the Underwriting Agreement, payment for the Offered
Securities shall be made by wire transfer of immediately available funds to or
at the direction of the Depositor at the time and place set forth in the
Underwriting Agreement, upon delivery to the Representative for the respective
accounts of the several Underwriters of the Offered Securities registered in
definitive form and in such names and in such denominations as the
Representative shall request in writing not less than five full business days
prior to the date of delivery. The time and date of such payment and delivery
with respect to the Offered Securities are herein referred to as the "Closing
Date."
SECTION 4. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The respective
obligations of the several Underwriters pursuant to the Underwriting Agreement
shall be subject, in the discretion of the Representative, to the accuracy in
all material respects of the representations and warranties of the Depositor
contained herein as of the date of the Underwriting Agreement and as of the
Closing Date as if made on and as of the Closing Date, to the accuracy in all
material respects of the statements of the officers of the Depositor, the Seller
and the Servicer made in the Purchase Agreement, the Pooling and Servicing
Agreement and any certificates delivered pursuant to the provisions hereof and
of the Underwriting Agreement, to the performance by the Depositor of its
covenants and agreements contained herein and to the following additional
conditions precedent:
(a) All actions required to be taken and all filings required to be made by
or on behalf of the Depositor under the 1933 Act and the Securities Exchange Act
of 1934, as amended (the "1934 Act") prior to the sale of the Offered Securities
shall have been duly taken or made;
(b) (i) No stop order suspending the effectiveness of the Registration
Statement shall be in effect; (ii) no proceedings for such purpose shall be
pending before or threatened by the Commission, or by any authority
administering any state securities or "Blue Sky" laws; (iii) any requests for
additional information on the part of the Commission shall have been complied
with to the Representative's reasonable satisfaction; (iv) since the respective
dates as of which information is given in the Registration Statement and the
Prospectus except as otherwise stated therein, there shall have been no material
adverse change in the condition, financial or otherwise, earnings, affairs,
regulatory situation or business prospects of the Depositor; (v) there are no
material actions, suits or proceedings pending before any court or governmental
agency, authority or body or threatened, affecting the Depositor or the
transactions contemplated by the Underwriting Agreement; (vi) the Depositor is
not in violation of its charter or its by-laws or in default in the performance
or observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to
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which it is a party or by which it or its properties may be bound, which
violations or defaults separately or in the aggregate would have a material
adverse effect on the Depositor; and (vii) the Representative shall have
received, on the Closing Date a certificate, dated the Closing Date and signed
by an executive officer of the Depositor, to the foregoing effect;
(c) Subsequent to the execution of the Underwriting Agreement, there shall
not have occurred any of the following: (i) if at or prior to the Closing Date,
trading in securities on the New York Stock Exchange shall have been suspended
or any material limitation in trading in securities generally shall have been
established on such exchange; (ii) if at or prior to the Closing Date, there
shall have been an outbreak or escalation of hostilities between the United
States and any foreign power, or of any other insurrection or armed conflict
involving the United States which results in the declaration of a national
emergency or war, and, in the reasonable opinion of the Representative, makes it
impracticable or inadvisable to offer or sell the Offered Securities; or (iii)
if at or prior to the Closing Date, a general moratorium on commercial banking
activities in New York shall have been declared by either federal or New York
State authorities;
(d) The Representative shall not have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of a fact or omits to state a fact which, in the opinion of Dewey Ballantine
LLP, counsel for the Representative, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(e) All corporate proceedings and other legal matters relating to the
authorization, form and validity of the Pooling and Servicing Agreement, the
Purchase Agreement, the Certificates, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in all respects to the
Representative and its counsel, and the Depositor shall have furnished to such
counsel all documents and information that they may reasonably request to enable
them to pass upon such matters.
(f) The Representative shall have received, on the Closing Date, a copy of
the letter from each nationally recognized statistical rating organization (as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
1933 Act) that rated the Offered Securities confirming that, unless otherwise
specified in the Underwriting Agreement, the Offered Securities have been rated
in the rating categories disclosed in the Prospectus Supplement by each such
organization and that each such rating has not been rescinded since the date of
the applicable letter;
(g) The Representative shall have received, on the Closing Date, an opinion
of Dewey Ballantine LLP, special counsel for the Depositor, dated the Closing
Date, in form and substance satisfactory to the Representative and containing
opinions substantially to the effect set forth in Exhibit A hereto;
(h) The Representative shall have received, on the Closing Date, an opinion
of Thacher, Proffitt & Wood, counsel for the Seller and the Servicer, dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative and counsel for the Underwriters;
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(i) The Representative shall have received, on the Closing Date, an opinion
of counsel for the Trustee, dated the Closing Date, in form and substance
satisfactory to the Representative and counsel for the Underwriters and
containing opinions substantially to the effect set forth in Exhibit B hereto;
(j) The Representative shall have received, on the Closing Date, an opinion
of Dewey Ballantine LLP, counsel for the Underwriters, dated the Closing Date,
with respect to the incorporation of the Depositor, the validity of the Offered
Securities, the Registration Statement, the Prospectus and other related matters
as the Underwriters may reasonably require, and the Depositor shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters;
(k) The Representative shall have received, on the Closing Date, such other
opinions of counsel in form and substance satisfactory to the Representative and
counsel to the Underwriters as the Representative shall request;
(l) The Representative shall have received, on or prior to the date of
first use of the Prospectus Supplement relating to the Offered Securities, and
on the Closing Date if requested by the Representative, letters of independent
accountants of the Depositor in the form and reflecting the performance of the
procedures previously requested by the Representative;
(m) The Representative shall have received, on the Closing Date, a copy of
the Indemnification Agreement duly executed by the Depositor and the Seller at
or prior to the Closing Date;
(n) The Depositor shall have furnished or caused to be furnished to the
Representative on the Closing Date a certificate of an executive officer of the
Depositor satisfactory to the Representative as to the accuracy of the
representations and warranties of the Depositor herein at and as of such Closing
Date as if made as of such date, as to the performance by the Depositor of all
of its obligations hereunder to be performed at or prior to such Closing Date,
and as to such other matters as the Representative may reasonably request;
(o) The Seller shall have furnished or caused to be furnished to the
Representative on the Closing Date a certificate of officers of the Seller in
form and substance reasonably satisfactory to the Representative;
(p) The Representative shall have been furnished such further information,
certificates, documents and opinions as the Representative may reasonably
request.
SECTION 5. COVENANTS OF THE DEPOSITOR. In further consideration of the
agreements of the Underwriters contained in the Underwriting Agreement, the
Depositor covenants as follows:
(a) To furnish the Representative, without charge, copies of the
Registration Statement and any amendments thereto including exhibits and as many
copies of the Prospectus and any supplements and amendments thereto as the
Representative may from time to time reasonably request.
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(b) Immediately following the execution of the Underwriting Agreement, the
Depositor will prepare a prospectus supplement setting forth the principal
amount, notional amount or stated amount, as applicable, of Offered Securities
covered thereby, the price at which the Offered Securities are to be purchased
by the Underwriters from the Depositor, either the initial public offering price
or prices or the method by which the price or prices at which the Offered
Securities are to be sold will be determined, the selling concessions and
reallowances, if any, any delayed delivery arrangements, and such other
information as the Representative and the Depositor deem appropriate in
connection with the offering of the Offered Securities, but the Depositor will
not file any amendment to the Registration Statement or any supplement to the
Prospectus of which the Representative shall not previously have been advised
and furnished with a copy a reasonable time prior to the proposed filing or to
which the Representative shall have reasonably objected. The Depositor will use
its best efforts to cause any amendment to the Registration Statement to become
effective as promptly as possible. During the time when a Prospectus is required
to be delivered under the 1933 Act, the Depositor will comply so far as it is
able with all requirements imposed upon it by the 1933 Act and the rules and
regulations thereunder to the extent necessary to permit the continuance of
sales or of dealings in the Offered Securities in accordance with the provisions
hereof and of the Prospectus, and the Depositor will prepare and file with the
Commission, promptly upon request by the Representative, any amendments to the
Registration Statement or supplements to the Prospectus which may be necessary
or advisable in connection with the distribution of the Offered Securities by
the Underwriters, and will use its best efforts to cause the same to become
effective as promptly as possible. The Depositor will advise the Representative,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement or any amended Registration Statement has become
effective or any supplement to the Prospectus or any amended Prospectus has been
filed. The Depositor will advise the Representative, promptly after it receives
notice or obtains knowledge thereof, of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of the Prospectus, or the suspension of
the qualification of the Offered Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for any such
purpose, or of any request made by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information, and the Depositor will use its best efforts to prevent the issuance
of any such stop order or any order suspending any such qualification, and if
any such order is issued, to obtain the lifting thereof as promptly as possible.
(c) If, at any time when a prospectus relating to the Offered Securities is
required to be delivered under the 1933 Act, 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 any 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, or if it is necessary
for any other reason to amend or supplement the Prospectus to comply with the
1933 Act, to promptly notify the Representative thereof and upon their request
to prepare and file with the Commission, at the Depositor's own expense, an
amendment or supplement which will correct such statement or omission or any
amendment which will effect such compliance.
(d) During the period when a prospectus is required by law to be delivered
in connection with the sale of the Offered Securities pursuant to the
Underwriting Agreement, the
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Depositor will file, on a timely and complete basis, all documents that are
required to be filed by the Depositor with the Commission pursuant to Sections
13, 14, or 15(d) of the 1934 Act.
(e) To qualify the Offered Securities for offer and sale under the
securities or "Blue Sky" laws of such jurisdictions as the Representative shall
reasonably request and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the
Representative may designate provided that in connection therewith the Depositor
shall not be required to qualify to do business or to file a general consent to
service of process in any jurisdiction.
(f) To make generally available to the Depositor's security holders, as
soon as practicable, but in any event not later than eighteen months after the
date on which the filing of the Prospectus, as amended or supplemented, pursuant
to Rule 424 under the 1933 Act first occurs, an earnings statement of the
Depositor covering a twelve-month period beginning after the date of the
Underwriting Agreement, which shall satisfy the provisions of Section 11(a) of
the 1933 Act and the applicable rules and regulations of the Commission
thereunder (including, at the option of the Depositor, Rule 158).
(g) For so long as any of the Offered Securities remain outstanding, to
furnish to the Representative upon request in writing copies of such financial
statements and other periodic and special reports as the Depositor may from time
to time distribute generally to its creditors or the holders of the Offered
Securities and to furnish to the Representative copies of each annual or other
report the Depositor shall be required to file with the Commission.
(h) For so long as any of the Offered Securities remain outstanding, the
Depositor will, or will cause the Servicer to, furnish to the Representative, as
soon as available, a copy of (i) the annual statement of compliance delivered by
the Servicer to the Trustee under the Pooling and Servicing Agreement, (ii) the
annual independent public accountants' servicing report furnished to the Trustee
pursuant to the Pooling and Servicing Agreement, (iii) each report regarding the
Offered Securities mailed to the holders thereof, and (iv) from time to time,
such other information concerning such securities as the Representative may
reasonably request.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The Depositor
represents and warrants to, and agrees with, each Underwriter, as of the date of
the Underwriting Agreement, as follows:
(a) The Registration Statement including a prospectus relating to the
mortgage backed securities and the offering thereof from time to time in
accordance with Rule 415 under the 1933 Act has been filed with the Commission
and such Registration Statement, as amended to the date of the Underwriting
Agreement, has become effective. No stop order suspending the effectiveness of
such Registration Statement has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission. A prospectus supplement
specifically relating to the Offered Securities will be filed with the
Commission pursuant to Rule 424 under the 1933 Act; provided, however, that a
supplement to the Prospectus prepared pursuant to Section 5(b) hereof shall be
deemed to have supplemented the Base Prospectus only with respect to the Offered
Securities to which it relates. The conditions to the use of a registration
statement
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on Form S-3 under the 1933 Act, as set forth in the General Instructions on Form
S-3, and the conditions of Rule 415 under the 1933 Act, have been satisfied with
respect to the Depositor and the Registration Statement. There are no contracts
or documents of the Depositor that are required to be filed as exhibits to the
Registration Statement pursuant to the 1933 Act or the rules and regulations
thereunder that have not been so filed.
(b) On the effective date of the Registration Statement, the Registration
Statement and the Base Prospectus conformed in all material respects to the
requirements of the 1933 Act and the rules and regulations thereunder, and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; on the date of the Underwriting Agreement and as of the
Closing Date, the Registration Statement and the Prospectus conform, and as
amended or supplemented, if applicable, will conform in all material respects to
the requirements of the 1933 Act and the rules and regulations thereunder, and
on the date of the Underwriting Agreement and as of the Closing Date, neither of
such documents, any Computational Materials nor any ABS Term Sheets includes any
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and neither of such documents as amended or supplemented, if applicable, will
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that the foregoing does not apply to
statements or omissions in any of such documents based upon written information
furnished to the Depositor by any Underwriter specifically for use therein.
"Computational Materials" shall mean those materials delivered within the
meaning of the no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Commission to Kidder, Peabody Acceptance Corporation
I, Kidder, Peabody & Co., Incorporated, and Kidder Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association for
which the filing of such material is a condition of the relief granted in such
letters. "ABS Term Sheet" shall mean those materials delivered in the form of
"Structural Term Sheets" or "Collateral Term Sheets," in each case within the
meaning of the no-action letter dated February 13, 1995 issued by the Division
of Corporation Finance of the Commission to the Public Securities Association
for which the filing of such material is a condition of the relief granted in
such letter.
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein,
there has been no material adverse change in the condition, financial or
otherwise, earnings, affairs, regulatory situation or business prospects of the
Depositor, whether or not arising in the ordinary course of the business of the
Depositor.
(d) The Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of North Carolina.
(e) The Depositor has all requisite power and authority (corporate and
other) and all requisite authorizations, approvals, orders, licenses,
certificates and permits of and from all government or regulatory officials and
bodies to own its properties, to conduct its business as described in the
Registration Statement and the Prospectus and to execute, deliver and perform
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this Agreement, the Pooling and Servicing Agreement, dated September 1, 2000,
the Purchase Agreement, dated as of September 1, 2000, between the Depositor and
the Trustee (the "Purchase Agreement"), and the Indemnification Side Letter,
except such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution by the Underwriters of the Offered
Securities; all such authorizations, approvals, orders, licenses, and
certificates are in full force and effect; and, except as set forth or
contemplated in the Registration Statement or the Prospectus, there are no legal
or governmental proceedings pending or, to the best knowledge of the Depositor,
threatened that would result in a material modification, suspension or
revocation thereof.
(f) The Offered Securities have been duly authorized, and when the Offered
Securities are issued and delivered pursuant to the Underwriting Agreement, the
Offered Securities will have been duly executed, issued and delivered and will
be entitled to the benefits provided by the Pooling and Servicing Agreement,
subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting the rights of
creditors generally, and to general principles of equity (regardless of whether
the entitlement to such benefits is considered in a proceeding in equity or at
law), and will conform in substance to the description thereof contained in the
Registration Statement and the Prospectus, and will in all material respects be
in the form contemplated by the Indenture.
(g) The execution and delivery by the Depositor of this Agreement, the
Underwriting Agreement, the Pooling and Servicing Agreement, the Purchase
Agreement, and the Indemnification Agreement (collectively, the "Depositor
Agreements") are within the corporate power of the Depositor and neither the
execution and delivery by the Depositor of the Depositor Agreements, nor the
consummation by the Depositor of the transactions therein contemplated, nor the
compliance by the Depositor with the provisions thereof, will conflict with or
result in a breach of, or constitute a default under, the charter or the by-laws
of the Depositor or any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties, or any of the provisions of any indenture, mortgage, contract or
other instrument to which the Depositor is a party or by which it is bound, or
will result in the creation or imposition of a lien, charge or encumbrance upon
any of its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, except such as have been obtained under the 1933
Act and 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 Securities by the
Underwriters.
(h) The Underwriting Agreement has been, and at the Closing Date the
Pooling and Servicing Agreement, the Purchase Agreement, and the Indemnification
Agreement will have been, duly authorized, executed and delivered by the
Depositor.
(i) At the Closing Date, each of the Depositor Agreements will constitute a
legal, valid and binding obligation of the Depositor, enforceable against the
Depositor, in accordance with its terms, subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and
other laws affecting the rights of creditors generally, and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law).
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(j) No filing or registration with, notice to, or consent, approval,
non-disapproval, authorization or order or other action of, any court or
governmental authority or agency is required for the consummation by the
Depositor of the transactions contemplated by the Depositor Agreements, except
such as have been obtained and except such as may be required under the 1933
Act, the rules and regulations thereunder, or state securities or "Blue Sky"
laws, in connection with the purchase and distribution of the Offered Securities
by the Underwriters.
(k) The Depositor owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease, own or license, as the case may be, and to
operate, its properties and to carry on its business as presently conducted and
has received no notice of proceedings relating to the revocation of any such
license, permit, consent, order or approval, which singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would materially
adversely affect the conduct of the business, results of operations, net worth
or condition (financial or otherwise) of the Depositor.
(l) Other than as set forth or contemplated in the Prospectus, there are no
legal or governmental proceedings pending to which the Depositor is a party or
of which any property of the Depositor is the subject which, if determined
adversely to the Depositor would individually or in the aggregate have a
material adverse effect on the condition (financial or otherwise), earnings,
affairs, or business or business prospects of the Depositor and, to the best of
the Depositor's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(m) Each of the Offered Securities will, when issued, be a "mortgage
related security" as such term is defined in Section 3(a)(41) of the 1934 Act.
(n) The Depositor is not required to be registered under the Investment
Company Act of 1940, as amended.
(o) Any taxes, fees and other governmental charges in connection with the
execution and delivery of the Depositor Agreements, and issuance of the Offered
Securities have been or will be paid at or prior to the Closing Date.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Depositor agrees to indemnify and hold harmless each Underwriter
(including First Union Securities, Inc., acting in its capacity as
Representative and as one of the Underwriters), and each person, if any, who
controls any Underwriter within the meaning of the 1933 Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
such controlling person may become subject under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, any Computational Materials, any ABS Term Sheets, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter and each such controlling person for any legal or other expenses
reasonably incurred by such Underwriter or
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such controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the Depositor
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with (1) written information furnished to the
Depositor by any Underwriter through the Representative specifically for use
therein or (2) information regarding the Seller, the Servicer or the Mortgage
Loans, except to the extent that the Depositor has been indemnified by the
Seller and the Servicer in the Indemnification Agreement. This indemnity
agreement will be in addition to any liability which the Depositor may otherwise
have.
(b) Each Underwriter will indemnify and hold harmless the Depositor, each
of the Depositor's directors, each of the Depositor's officers who signed the
Registration Statement and each person, if any, who controls the Depositor,
within the meaning of the 1933 Act, against any losses, claims, damages or
liabilities to which the Depositor, or any such director, officer or controlling
person may become subject, under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, any
Computational Materials, any ABS Term Sheets or any amendment or supplement
thereto, or any other prospectus relating to the Offered Securities, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statements or alleged untrue statements or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Depositor by any Underwriter through the Representative
specifically for use therein; and each Underwriter will reimburse any legal or
other expenses reasonably incurred by the Depositor or any such director,
officer or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action. This indemnity agreement will be
in addition to any liability which such Underwriter may otherwise have. The
Depositor acknowledges that the statements set forth under the caption "Plan of
Distribution" in the Prospectus Supplement constitute the only information
furnished to the Depositor by or on behalf of any Underwriter for use in the
Registration Statement, the Prospectus, and each of the several Underwriters
represents and warrants that such statements are correct as to it.
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the preceding
parts of this Section 7 is for any reason held to be unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result of
such losses, claims, damages or liabilities (or actions in respect thereof);
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by the
Depositor on the one hand, and the Underwriters on the other, from the offering
of the Offered Securities (taking into account the portion of the
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proceeds of the offering realized by each), the Depositor's and the
Underwriters' relative knowledge and access to information concerning the matter
with respect to which the claim was asserted, the opportunity to correct and
prevent any statement or omission, and any other equitable considerations
appropriate in the circumstances. The Depositor and the Underwriters agree that
it would not be equitable if the amount of such contribution were determined by
pro rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose). No Underwriters or person controlling such
Underwriters shall be obligated to make contribution hereunder which in the
aggregate exceeds the total underwriting fee of the Offered Securities purchased
by such Underwriters under the Underwriting Agreement, less the aggregate amount
of any damages which such Underwriters and its controlling persons have
otherwise been required to pay in respect of the same or any substantially
similar claim. The Underwriters' obligation to contribute hereunder are several
in proportion to their respective underwriting obligations and not joint. For
purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Depositor, each
officer of the Depositor who signed the Registration Statement, and each person,
if any, who controls the Depositor within the meaning of Section 15 of the 1933
Act, shall have the same rights to contribution as the Depositor.
SECTION 8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective representations, warranties, agreements, covenants, indemnities and
other statements of the Depositor, its officers and the several Underwriters set
forth in, or made pursuant to, the Underwriting Agreement shall remain in full
force and effect, regardless of any investigation, or statement as to the result
thereof, made by or on behalf of any Underwriter, the Depositor, or any of the
officers or directors or any controlling person of any of the foregoing, and
shall survive the delivery of and payment for the Offered Securities.
SECTION 9. TERMINATION. The Underwriting Agreement may be terminated by the
Depositor by notice to the Representative in the event that a stop order
suspending the effectiveness of the Registration Statement shall have been
issued or proceedings for that purpose shall have been instituted or threatened.
(a) The Underwriting Agreement may be terminated by the Representative by
notice to the Depositor in the event that the Depositor shall have failed,
refused or been unable to perform all obligations and satisfy all conditions to
be performed or satisfied hereunder by the Depositor at or prior to the Closing
Date.
(b) Termination of the Underwriting Agreement pursuant to this Section 9
shall be without liability of any party to any other party other than as
provided in Sections 7 and 11 hereof.
SECTION 10. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters
defaults or default in their obligation to purchase Offered Securities which it
or they have agreed to purchase under the Underwriting Agreement and the
aggregate principal amount of the Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed to purchase is ten percent or less
of the aggregate principal amount, notional amount or stated amount, as
applicable, of the Offered Securities to be sold under the Underwriting
Agreement, as
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the case may be, the other Underwriters shall be obligated severally in
proportion to their respective commitments under the Underwriting Agreement to
purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so defaults or default and the aggregate principal amount of the Offered
Securities with respect to which such default or defaults occurs or occur is
more than ten percent of the aggregate principal amount, notional amount or
stated amount, as applicable, of Offered Securities to be sold under the
Underwriting Agreement, as the case may be, and arrangements satisfactory to the
Representative and the Depositor for the purchase of such Offered Securities by
other persons (who may include one or more of the non-defaulting Underwriters
including the Representative) are not made within 36 hours after any such
default, the Underwriting Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Depositor except for the expenses to be
paid or reimbursed by the Depositor pursuant to Section 11 hereof. As used in
the Underwriting Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10. Nothing herein shall
relieve a defaulting Underwriter from liability for its default.
SECTION 11. EXPENSES. The Depositor agrees with the several Underwriters
that:
(a) whether or not the transactions contemplated in the Underwriting
Agreement are consummated or the Underwriting Agreement is terminated, the
Depositor will pay all fees and expenses incident to the performance of its
obligations under the Underwriting Agreement, including, but not limited to, (i)
the Commission's registration fee, (ii) the expenses of printing and
distributing the Underwriting Agreement and any related underwriting documents,
the Registration Statement, the Prospectus, any amendments or supplements to the
Registration Statement or the Prospectus, and any Blue Sky memorandum or legal
investment survey and any supplements thereto, (iii) fees and expenses of rating
agencies, accountants and counsel for the Depositor, (iv) the expenses referred
to in Section 5(e) hereof, and (v) all miscellaneous expenses referred to in
Item 30 of the Registration Statement;
(b) all out-of-pocket expenses, including counsel fees, disbursements and
expenses, reasonably incurred by the Underwriters in connection with
investigating, preparing to market and marketing the Offered Securities and
proposing to purchase and purchasing the Offered Securities under the
Underwriting Agreement will be borne and paid by the Depositor if the
Underwriting Agreement is terminated by the Depositor pursuant to Section 9(a)
hereof or by the Representative on account of the failure, refusal or inability
on the part of the Depositor to perform all obligations and satisfy all
conditions on the part of the Depositor to be performed or satisfied hereunder;
and
(c) the Depositor will pay the cost of preparing the certificates for the
Offered Securities.
Except as otherwise provided in this Section 11, the Underwriters agree to
pay all of their expenses in connection with investigating, preparing to market
and marketing the Offered Securities and proposing to purchase and purchasing
the Offered Securities under the Underwriting Agreement, including the fees and
expenses of their counsel and any advertising expenses incurred by them in
making offers and sales of the Offered Securities.
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SECTION 12. NOTICES. All communications under the Underwriting Agreement
shall be in writing and, if sent to the Underwriters, shall be mailed, delivered
or telegraphed and confirmed to the Representative at the address and to the
attention of the person specified in the Underwriting Agreement, and, if sent to
the Depositor, shall be mailed, delivered or telegraphed and confirmed to
Residential Asset Funding Corporation, One First Union Center, 301 South College
Street, Charlotte, North Carolina 28202-6001, Attention: Managing Director -
Asset Finance Group; provided, however, that any notice to any Underwriter
pursuant to the Underwriting Agreement shall be mailed, delivered or telegraphed
and confirmed to such Underwriter at the address furnished by it.
SECTION 13. REPRESENTATIVE OF UNDERWRITERS. Any Representative identified
in the Underwriting Agreement will act for the Underwriters of the Offered
Securities and any action taken by the Representative under the Underwriting
Agreement will be binding upon all of such Underwriters.
SECTION 14. SUCCESSORS. The Underwriting Agreement shall inure to the
benefit of and shall be binding upon the several Underwriters and the Depositor
and their respective successors and legal representatives, and nothing expressed
or mentioned herein or in the Underwriting Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of the Underwriting Agreement, or any provisions herein
contained, the Underwriting Agreement and all conditions and provisions hereof
being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the
representations and warranties of the Depositor contained herein or in the
Underwriting Agreement shall also be for the benefit of any person or persons
who controls or control any Underwriter within the meaning of Section 15 of the
1933 Act, and (ii) the indemnities by the several Underwriters shall also be for
the benefit of the directors of the Depositor, the officers of the Depositor who
have signed the Registration Statement and any person or persons who control the
Depositor within the meaning of Section 15 of the 1933 Act. No purchaser of the
Offered Securities from any Underwriter shall be deemed a successor because of
such purchase. This Agreement and each Underwriting Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 15. TIME OF THE ESSENCE. Time shall be of the essence in each
Underwriting Agreement.
SECTION 16. GOVERNING LAW. This Agreement and each Underwriting Agreement
shall be governed by and construed in accordance with the laws of the State of
New York.
[Signature Page Follows]
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If the foregoing is in accordance with your understanding, please sign and
return two counterparts hereof.
Yours truly,
RESIDENTIAL ASSET FUNDING
CORPORATION
By: /s/ Eric Kaplan
-----------------------
Name: Eric Kaplan
Title: Vice President
Accepted as of the date hereof:
FIRST UNION SECURITIES, INC.
By: /s/ Eric Kaplan
---------------------------
Name: Eric Kaplan
Title: Vice President
[Signature Page to Underwriting Agreement Standard Provisions]
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Exhibit A
Opinions of Dewey Ballantine LLP,
special counsel for the Depositor
---------------------------------
(1) Each of the Depositor Documents constitutes the valid, legal and
binding agreement of the Depositor, and is enforceable against the Depositor in
accordance with its terms.
(2) The Certificates, assuming the due execution by the Trustee and due
authentication by the Trustee and payment therefor pursuant to the Underwriting
Agreement, are validly issued and outstanding and are entitled to the benefits
of the Pooling and Servicing Agreement.
(3) No consent, approval, authorization or order of, registration or filing
with, or notice to, any governmental authority or court is required under
federal laws or the laws of the State of New York for the execution, delivery
and performance of the Depositor Documents or the offer, issuance, sale or
delivery of the Certificates or the consummation of any other transaction
contemplated thereby by the Depositor, except such which have been obtained.
(4) The Registration Statement and the Prospectus (other than the financial
and statistical data included therein, as to which we are not called upon to
express any opinion), at the time the Registration Statement became effective,
as of the date of execution of the Underwriting Agreement and as of the date
hereof comply as to form in all material respects with the requirements of the
1933 Act and the rules and regulations thereunder, and the 1934 Act and the
rules and regulations thereunder, and we do not know of any amendment to the
Registration Statement required to be filed, or of any contracts, indentures or
other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration Statement
or the Prospectus, which has not been filed or described as required.
(5) It is not necessary to qualify the Pooling and Servicing Agreement
under the Trust Indenture Act of 1939, as amended and the Depositor is not
required to be registered under the Investment Company Act of 1940.
(6) The statements in the Prospectus Supplement set forth under the caption
"Description of the Certificates," to the extent such statements purport to
summarize certain provisions of the Certificates or of the Pooling and Servicing
Agreement, are fair and accurate in all material respects.
(7) Neither the Depositor nor the Trustee is an "investment company" or
under the "control" of an "investment company" as such terms are defined in the
1940 Act.
(8) For federal income tax purposes, the Certificates will be treated as a
"Real Estate Mortgage Investment Conduit."
A-1
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Such counsel shall also have furnished to the Representative a written
statement, addressed to the Representative and dated the Closing Date, in form
and substance satisfactory to the Representative to the effect that no facts
have come to the attention of such counsel which lead them to believe that: (a)
the Registration Statement, at the time such Registration Statement 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 (except as to financial or statistical data
contained in the Registration Statement); (b) the Prospectus, as of its date and
as of the Closing Date, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (c) any document
incorporated by reference in the Prospectus or any further amendment or
supplement to any such incorporated document made by the Depositor prior to the
Closing Date contained, as of the time it became effective or was filed with the
Commission, as the case may be, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
A-2
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Exhibit B
Opinions of Counsel to
the Trustee
----------------------
(1) The Trustee is a banking corporation duly organized, validly existing
and in good standing under the laws of the State of New York and has the power
and authority to enter into and to take all actions required of it under the
Pooling and Servicing Agreement.
(2) The Pooling and Servicing Agreement has been duly authorized, executed
and delivered by the Trustee and the Pooling and Servicing Agreement constitutes
the legal, valid and binding obligation of the Trustee, enforceable against the
Trustee in accordance with its terms, except as enforceability thereof may be
limited by (A) bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally, as such laws would
apply in the event of a bankruptcy, insolvency or reorganization or similar
occurrence affecting the Trustee, and (B) general principles of equity
regardless of whether such enforcement is sought in a proceeding at law or in
equity.
(3) No consent, approval, authorization or other action by any governmental
agency or body or other tribunal is required on the part of the Trustee in
connection with its execution and delivery of the Pooling and Servicing
Agreement or the performance of its obligations thereunder.
(4) The Certificates have been duly executed, authenticated and delivered
by the Trustee.
(5) The execution and delivery of, and performance by the Trustee of its
obligations under, the Pooling and Servicing Agreement do not conflict with or
result in a violation of any statute or regulation applicable to the Trustee, or
the charter or bylaws of the Trustee, or to the best knowledge of such counsel,
any governmental authority having jurisdiction over the Trustee or the terms of
any indenture or other agreement or instrument to which the Trustee is a party
or by which it is bound.
B-1
