Exhibit 1.1
GREENPOINT MORTGAGE FUNDING, INC.
GREENPOINT MORTGAGE SECURITIES LLC
HOME EQUITY LOAN VARIABLE RATE ASSET-BACKED NOTES
Series 200_-_
Class A Notes
UNDERWRITING AGREEMENT
New York, New York
__________, 200_
[Underwriter]
[Address]
Dear Sirs:
GreenPoint Mortgage Securities LLC, a Delaware limited liability
company (the "SPONSOR"), proposes to cause GreenPoint Home Equity Loan Trust
200_-_ (the "TRUST") to sell to you its Home Equity Loan Asset-Backed Notes in
the series and class, in the respective original principal amounts and with the
designations set forth in Schedule I hereto (the "DESIGNATED NOTES"). The
Designated Notes, will be issued pursuant to an Indenture (the "INDENTURE"),
dated as of ________, 200_, between the Trust and [Indenture Trustee], as
Trustee (the "TRUSTEE"). The Trust will be formed pursuant to a Trust Agreement
(the "TRUST Agreement") to be dated as of _______, 200_ and entered into between
the Sponsor and [Owner Trustee], as Owner Trustee. The Designated Notes and a
residual certificate issued to the Sponsor (the "CERTIFICATE") will be secured
by certain Mortgage Loans to be transferred by the Sponsor to the Trust pursuant
to a Sale and Servicing agreement (the "SALE AND SERVICING AGREEMENT") dated
______, 200_ among the Sponsor, the Trust, GreenPoint Mortgage Funding, Inc.
(the "COMPANY") and the Trustee and pledged by the Trust to the Trustee under
the Indenture. The Designated Notes are described more fully in Schedule I
hereto and in a Prospectus Supplement furnished to you by the Company.
Capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned to them in Annex I to the Indenture.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SPONSOR.
Each of the Company and the Sponsor represents and warrants to, and agrees with,
you that:
(a) A registration statement on Form S-3 has been filed with
the Securities and Exchange Commission (the "COMMISSION") (the file
number of which is set forth in Schedule I hereto) for the registration
of Asset-Backed Securities, issuable in series under the Securities Act
of 1933, as amended (the "1933 ACT"), which registration statement was
declared effective on the date set forth in Schedule I hereto and copies
of which have heretofore been delivered to you. The Sponsor meets the
requirements for use of Form S-3 under the 1933 Act, and such
registration statement, as amended at the date hereof, meets the
requirements set forth in Rule 415(a)(1)(x) under the 1933 Act and
complies in all other material respects with the 1933 Act and the rules
and regulations thereunder (the "RULES AND REGULATIONS"). The Sponsor
proposes to file with the Commission, with your consent, pursuant to Rule
424 under the 1933 Act, a supplement to the form of prospectus included
in such registration statement relating to the Designated Notes and the
plan of distribution thereof, and has previously advised you of all
further information (financial and other) with respect to the Designated
Notes and the Mortgage Pool to be set forth therein. Such registration
statement, including all exhibits thereto, as amended at the date hereof,
is referred to herein as the "REGISTRATION STATEMENT"; such prospectus in
the form in which it appears in the Registration Statement is referred to
herein as the "BASE PROSPECTUS" (except that if the prospectus filed by
the Sponsor pursuant to Rule 424(b) under the 1933 Act differs from the
prospectus on file at the time the Registration Statement became
effective, the term "BASE PROSPECTUS" shall refer to such Rule 424(b)
prospectus from and after the time it is mailed to the Commission for
filing); such form of prospectus supplemented by the prospectus
supplement (the "PROSPECTUS SUPPLEMENT") relating to the Designated
Notes, in the form in which it shall be first filed with the Commission
pursuant to Rule 424(b) under the 1933 Act (including the Base Prospectus
as so supplemented), is referred to herein as the "FINAL PROSPECTUS".
(b) As of the date hereof, as of the date on which the Final
Prospectus is first filed pursuant to Rule 424 under the 1933 Act, as of
the date on which, prior to the Closing Date (as hereinafter defined),
any amendment to the Registration Statement becomes effective, as of the
date on which any supplement to the Final Prospectus is filed with the
Commission, and at the Closing Date, (i) the Registration Statement, as
amended as of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, complies and will comply as to form in
all material respects with the applicable requirements of the 1933 Act
and the Rules and Regulations thereunder, (ii) the Registration
Statement, as amended as of any such time, does not contain and will not
contain any untrue statement of a material fact and does not omit and
will not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, and
(iii) the Final Prospectus, as amended or supplemented as of any such
time, does not contain and will not contain any untrue statement of a
material fact and does not omit and will not omit to state any
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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; PROVIDED, HOWEVER, that the Sponsor makes
no representations or warranties as to statements contained in or omitted
from the Registration Statement or the Final Prospectus or any amendment
or supplement thereto made in reliance upon and in conformity with
information furnished in writing to the Company by you specifically for
use in the Registration Statement and the Final Prospectus.
(c) The documents incorporated by reference in the Final
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 1933 Act or the Securities Exchange Act of 1934 (the
"1934 ACT"), as applicable, and the rules and -------- regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Final 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 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(d) Since the respective dates as of which information is given
in the Final Prospectus, there has not been any material adverse change
in the general affairs, management, financial condition, or results of
operations of the Company, otherwise than as set forth or contemplated in
the Final Prospectus as supplemented or amended as of Closing Date.
(e) To the extent that the Underwriter (i) has provided to the
Company or the Sponsor Collateral Term Sheets (as hereinafter defined)
that such Underwriter has provided to a prospective investor, the Company
or the Sponsor has filed such Collateral Term Sheets as an exhibit to a
report on Form 8-K within two business days of its receipt thereof, or
(ii) has provided to the Company or the Sponsor Structural Term Sheets or
Computational Materials (each as defined below) that such Underwriter has
provided to a prospective investor, the Company or the Sponsor will file
or cause to be filed with the Commission a report on Form 8-K containing
such Structural Term Sheet and Computational Materials, as soon as
reasonably practicable after the date of this Agreement, but in any
event, not later than the date on which the Final Prospectus is filed
with the Commission pursuant to Rule 424 of the Rules and Regulations.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
New York, 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
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business requires such qualification, has full power and authority
(corporate and other) necessary to own or hold its properties and to
conduct its business as now conducted by it and to enter into and perform
its obligations under this Agreement, the Sale and Servicing Agreement,
the Mortgage Loan Purchase Agreement, dated as of ________, 200_ between
the Company and the Sponsor (the "PURCHASE AGREEMENT") and the Insurance
and Indemnity Agreement, dated as of ________, 200_ (the "INSURANCE AND
INDEMNITY AGREEMENT") among the Company, [Insurer] ("INSURER"), the
Sponsor, the Trustee and the Trust.
(g) The Sponsor has been duly formed and is validly existing as
a limited liability company 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 company in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, has
full power and authority necessary to own and hold its properties and to
conduct its business as now conducted by it and to enter into and perform
its obligations under this Agreement, the Trust Agreement, the Sale and
Servicing Agreement, the Purchase Agreement and the Insurance and
Indemnity Agreement.
(h) As of the date hereof, as of the date on which the Final
Prospectus is first filed pursuant to Rule 424 under the 1933 Act, as of
the date on which, prior to the Closing Date, any amendment to the
Registration Statement becomes effective, as of the date on which any
supplement to the Final Prospectus is filed with the Commission, and as
of the Closing Date, there has not and will not have been (i) any request
by the Commission for any further amendment to the Registration Statement
or the Final Prospectus or for any additional information, (ii) any
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threat of any
proceeding for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Designated Notes for sale in any
jurisdiction or any initiation or threat of any proceeding for such
purpose.
(i) [Accountants] are independent public accountants with
respect to the Company as required by the 1933 Act and the Rules and
Regulations.
(j) This Agreement has been duly authorized, executed and
delivered by the Company and the Sponsor and constitutes a legal, valid,
binding and enforceable agreement of each of the Company and the Sponsor,
subject as to enforceability, to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and (ii) general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law.
(k) The Sale and Servicing Agreement, the Insurance and
Indemnity Agreement and the Purchase Agreement when executed and
delivered as contemplated hereby and thereby, will have been duly
authorized, executed and delivered by each of the Company and the
Sponsor, and when so executed and
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delivered, will constitute legal, valid, binding and enforceable
agreements of each of the Company and the Sponsor, subject, as to
enforceability, to (i) bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and (ii)
general principles of equity regardless of whether enforcement is sought
in a proceeding in equity or at law.
(l) The Trust Agreement when executed and delivered as
contemplated hereby and thereby will have been duly authorized, executed
and delivered by the Sponsor, and when so executed and delivered, will
constitute a legal, valid, binding and enforceable agreement of the
Sponsor, subject, as to enforceability, to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and (ii) general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law.
(m) As of the Closing Date, the Designated Notes and the
Indenture will conform in all material respects to the respective
descriptions thereof contained in the Final Prospectus. As of the Closing
Date, the Designated Notes will be duly and validly authorized and, when
duly and validly executed, authenticated and delivered in accordance with
the Indenture and delivered to you against payment therefor as provided
herein, will be duly and validly issued and outstanding and entitled to
the benefits of the Indenture. The Designated Notes will not be "mortgage
related securities," as such term is defined in the singular in the 1934
Act.
(n) The Indenture, when executed and delivered, will have been
duly qualified under the Trust Indenture Act of 1939.
(o) As of the Closing Date, each of the Mortgage Loans will
meet the criteria for selection described in the Final Prospectus, and on
the Closing Date the representations and warranties of the Company and
the Sponsor with respect to the Mortgage Loans contained in the Purchase
Agreement and the Sale and Servicing Agreement will be true and correct.
(p) The Company is not in violation of its certificate of
incorporation or by-laws and the Sponsor is not in violation of its
certificate of formation or operating agreement and neither is in default
under any agreement, indenture or instrument the effect of which
violation or default would be material to the Company or the Sponsor.
Neither the issuance and sale of the Designated Notes nor the execution
and delivery by the Company and the Sponsor of this Agreement, the Sale
and Servicing Agreement, the Purchase Agreement or the Insurance and
Indemnity Agreement, nor the consummation by the Company and the Sponsor
of any of the transactions herein or therein contemplated, nor compliance
by the Company and the Sponsor with the provisions hereof or thereof,
does or will conflict with or result in a breach of any term or provision
of the certificate of incorporation or by-laws of the Company or the
certificate of formation or operating agreement of the Sponsor or
conflict with, result in a
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breach, violation or acceleration of, or constitute a default under, the
terms of any indenture or other agreement or instrument to which the
Company or the Sponsor is a party or by which it is bound, or any
statute, order or regulation applicable to the Company or the Sponsor of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over the Company or the Sponsor. Each of the Company
and the Sponsor is not a party to, bound by or in breach or violation of
any indenture or other agreement or instrument, or subject to or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction over
it that materially and adversely affects, or may in the future materially
and adversely affect, (i) the ability of the Company or the Sponsor to
perform its obligations under this Agreement, the Purchase Agreement, the
Sale and Servicing Agreement or the Insurance and Indemnity Agreement or
(ii) the business, operations, financial conditions, properties or assets
of the Company.
(q) The execution and delivery by the Sponsor of the Trust
Agreement does not and will not conflict with or result in a breach of
any term or provision of the certificate of formation or operating
agreement of the Sponsor or conflict with, result in a breach, violation
or acceleration of, or constitute a default under, the terms of any
indenture or other agreement or instrument to which the Sponsor is bound
or is a party or any statute, order or regulation applicable to the
Sponsor.
(r) There are no actions or proceedings against, or
investigations of, the Company or the Sponsor pending, or, to the
knowledge of the Company or the Sponsor, threatened, before any court,
arbitrator, administrative agency or other tribunal (i) asserting the
invalidity of this Agreement, the Trust Agreement, the Sale and Servicing
Agreement, the Purchase Agreement, the Insurance and Indemnity Agreement,
the Trust Agreement or the Designated Notes (ii) seeking to prevent the
issuance of the Designated Notes or the consummation of any of the
transactions contemplated by this Agreement, the Trust Agreement, the
Purchase Agreement, the Sale and Servicing Agreement or the Insurance and
Indemnity Agreement, (iii) that are reasonably likely to be adversely
determined and that might materially and adversely affect the performance
by each of the Company and the Sponsor of its obligations under, or the
validity or enforceability of, this Agreement, the Indenture, the Sale
and Servicing Agreement, the Insurance and Indemnity Agreement, the Trust
Agreement or the Designated Notes or (iv) seeking to affect adversely the
federal income tax attributes of the Designated Notes as described in the
Final Prospectus.
(s) 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 Designated Notes and
the sale of the Designated Notes to you, or the consummation by the
Company or the Sponsor of the other transactions contemplated by this
Agreement, the Indenture, the Sale and Servicing Agreement, the Purchase
Agreement, the Trust Agreement and the Insurance and Indemnity Agreement,
except such consents, approvals, authorizations, registrations or
qualifications as may be required under State
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securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Notes by you or as have been obtained.
(t) Each of the Company and the Sponsor 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 Final
Prospectus, and neither the Company nor the Sponsor has received notice
of any proceedings relating to the revocation or modification of any such
license, certificates, authority or permit which if decided adversely to
the Company or the Sponsor would, singly or in the aggregate, materially
and adversely affect the conduct of its business, operations or financial
condition.
(u) Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement, the
Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement
and the Insurance and Indemnity Agreement or the execution, delivery and
sale of the Designated Notes have been or will be paid on or prior to the
Closing Date.
(v) Immediately prior to the assignment of the Mortgage Loans
to the Trust as contemplated by the Sale and Servicing Agreement, the
Company (i) had good title to, and was the sole owner of, each Mortgage
Loan free and clear of any pledge, mortgage, lien, security interest or
other encumbrance (collectively, "LIENS"), (ii) had not assigned to any
person any of its right, title or interest in such Mortgage Loans and
(iii) will have the power and authority to sell such Mortgage Loans to
the Sponsor pursuant to the Purchase Agreement and upon the execution and
delivery of the Sale and Servicing Agreement by the Sponsor, the Trust
will have acquired all of the Sponsor's and the Company's right, title
and interest in and to the Mortgage Loans.
(w) At the time of execution and delivery of the Indenture, (1)
the Trust will own the Mortgage Loans being pledged to the Trustee
pursuant thereto, free and clear of any Liens, except to the extent
permitted in the Indenture, and will not have assigned to any person
other than the Trustee any of its right, title or interest in the
Mortgage Loans, (2) the Trust will have the power and authority to pledge
the Trust Estate to the Trustee and to transfer the Designated Notes and
will have duly authorized such action by all necessary corporate action,
(3) upon execution and delivery by the Trust to the Trustee of the
Indenture, and delivery of the Designated Notes, the Trustee will have a
valid, perfected security interest of first priority in the Trust Estate
free of Liens other than Liens permitted by the Indenture and (4) upon
payment and delivery of the Designated Notes to you, you will acquire
ownership of the Designated Notes, free of Liens other than Liens
permitted by the Indenture or created or granted by you.
(x) At the Closing Date, the execution and delivery of the
Indenture by the Trust will have been duly authorized by the Sponsor and
upon due execution and delivery thereof by the parties thereto, the
Indenture will constitute a legal,
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valid and binding agreement enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, reorganization,
insolvency or other similar laws affecting creditors' rights generally
and by general principles of equity.
(y) At the Closing Date, the Trust will have assigned, pledged
and delivered to the Trustee under the Indenture all of its right, title
and interest in and to, among other things, (i) the Mortgage Loans, and
(ii) cash and/or other assets, if any, in the amount set forth in the
Indenture (the "COLLATERAL").
(z) The Trust has corporate power and authority to assign,
pledge and deliver the Collateral to the Trustee under the Indenture, and
at the Closing Date will have duly authorized such assignment, pledge and
delivery to the Trustee by all necessary corporate actions.
(aa) Neither the Company, the Sponsor nor the Trust is, and
neither the issuance and sale of the Designated Notes nor the activities
of the Trust pursuant to the Indenture will cause the Company, the
Sponsor or the Trust to be, an "investment company" or under the control
of an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT").
(bb) At the Closing Date, each of the representations and
warranties of the Company and the Sponsor set forth in the Purchase
Agreement and in the Sale and Servicing Agreement will be true and
correct in all material respects.
(cc) At the Closing Date, the Designated Notes shall have been
rated in the highest rating category by at least two nationally
recognized rating agencies.
2. PURCHASE AND SALE. The commitment of the Underwriter to purchase
the Designated Notes pursuant to this Agreement shall be deemed to have been
made on the basis of the representations and warranties herein contained and
shall be subject to the terms and conditions herein contained. The Sponsor
agrees to cause the Trust to sell the Designated Notes to you, and you agree to
purchase the Designated Notes from the Trust, for the purchase price previously
agreed between us, before deducting expenses payable by the Company.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Designated
Notes shall be made at the office of Xxxxx Xxxxxxxxxx LLP prior to 12:00 p.m.,
Eastern Standard Time, on the date specified in Schedule I hereto (or such later
date not later than seven business days after such specified date as you shall
designate), which date and time may be changed by agreement between you and the
Sponsor or as provided herein (such date and time of delivery and payment for
the Designated Notes being herein called the "CLOSING DATE"). Delivery of the
Designated Notes shall be made to you against payment by you of the purchase
price therefor in immediately available funds wired to such bank as may be
designated by the Sponsor, or such other manner of payment as may be agreed upon
by the Sponsor and you. The Designated Notes to be so delivered shall be in
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definitive fully registered form, unless otherwise agreed, in such denominations
and registered in such names as you may have requested in writing not less than
two full business days in advance of the Closing Date.
The Sponsor agrees to have the Designated Notes available for
inspection, checking and packaging by you at the offices of Xxxxx Xxxxxxxxxx
LLP, not later than 4:00 p.m. on the business day prior to the Closing Date.
4. OFFERING OF THE DESIGNATED NOTES. It is understood that you
propose to offer the Designated Notes for sale to the public as set forth in the
Final Prospectus.
5. COVENANTS OF THE COMPANY AND THE SPONSOR. Each of the Company and
the Sponsor covenants and agrees with you that:
(a) The Company and the Sponsor will prepare a supplement to
the Base Prospectus setting forth the amount of Designated Notes covered
thereby and the terms thereof not otherwise specified in the Base
Prospectus, the expected proceeds to the Company from the sale of such
Designated Notes, and such other information as you and the Company may
deem appropriate in connection with the offering of such Designated
Notes. The Company and the Sponsor will file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the 1934 Act subsequent to the date of the Final Prospectus. The
Company and the Sponsor promptly will advise you or your counsel (i) when
the Final Prospectus shall have been filed or transmitted to the
Commission for filing pursuant to Rule 424, (ii) when any amendment to
the Registration Statement shall have become effective or any further
supplement to the Base Prospectus shall have been filed with the
Commission, (iii) of any proposal or request to amend or supplement the
Registration Statement, the Base Prospectus or the Final Prospectus or
any request by the Commission for any additional information, (iv) when
notice is received from the Commission that any post-effective amendment
to the Registration Statement has become or will become effective, (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or post-effective amendment
thereto or the institution or threatening of any proceeding for that
purpose, (vi) of the receipt by the Company or the Sponsor of any
notification with respect to the suspension of the qualification of the
Designated Notes for sale in any jurisdiction or the institution or
threatening of any proceeding for that purpose, and (vii) of the
occurrence of any event that would cause the Registration Statement, as
then in effect, to contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or that would cause
the Final Prospectus, as then in effect, to contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The Company
and the Sponsor will use its best efforts to prevent the issuance of any
such stop order or suspension and, if issued, to obtain as soon as
possible the
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withdrawal thereof. The Company and the Sponsor will cause the Final
Prospectus to be transmitted to the Commission for filing pursuant to
Rule 424 under the 1933 Act or will cause the Final Prospectus to be
filed with the Commission pursuant to said Rule 424.
(b) If, at any time when a prospectus relating to the
Designated Notes is required to be delivered under the 1933 Act, any
event occurs as a result of which the Final Prospectus, as then amended
or supplemented, would contain 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 light of the circumstances
under which they were made, not misleading, or if it shall be necessary
to amend or supplement the Final Prospectus to comply with the 1933 Act
or the rules and regulations thereunder, the Company and the Sponsor
promptly will prepare and file with the Commission, at the expense of the
Company or the Sponsor, as the case may be, subject to paragraph (a) of
this Section 5, an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance
and, if such amendment or supplement is required to be contained in a
post-effective amendment to the Registration Statement, the Company and
the Sponsor will use their best efforts to cause such amendment to the
Registration Statement to be made effective as soon as possible.
(c) The Company and the Sponsor will furnish to you and your
counsel, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall
become effective on or prior to the Closing Date, and so long as delivery
of a prospectus by you may be required by the 1933 Act, as many copies of
any Final Prospectus and any amendments and supplements thereto as you
may reasonably request.
(d) The Company and the Sponsor will file promptly with the
Commission any amendment to the Registration Statement or the Base
Prospectus or any supplement to the Base Prospectus that may, in your
judgment or the judgment of the Company or the Sponsor, be required by
the 1933 Act or requested by the Commission.
(e) The Company and the Sponsor will make generally available
to holders of the Designated 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 1933 Act and the Rules and
Regulations (including, at the option of the Company and the Sponsor,
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.
(f) Each of the Company and the Sponsor agrees that, so long as
the Designated Notes shall be outstanding, it will deliver to you the
annual statement as to compliance delivered to the Trustee pursuant to
Section 3.09 of the Sale and
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Servicing Agreement and the annual statement of a firm of independent
public accountants delivered to the Trustee pursuant to Section 3.10 of
the Sale and Servicing Agreement, as soon as such statements are
furnished to the Company or the Sponsor.
(g) The Company and the Sponsor will furnish such information,
execute such instruments and use their best efforts to qualify the
Designated Notes for sale under the laws of such jurisdictions as you may
designate and will maintain such qualifications in effect so long as
required for the distribution of the Designated Notes; PROVIDED, HOWEVER,
that the Company and the Sponsor shall not be required to qualify to do
business in any jurisdiction where it is not now qualified or to take any
action that would subject it to general or unlimited service of process
in any jurisdiction where it is not now subject to such service of
process. Subject to the foregoing proviso, the Company and the Sponsor
will file or cause the filing of such statements and reports as may be
required by the laws of each jurisdiction in which the Designated Notes
have been so qualified.
(h) The Company and the Sponsor will enter into this Agreement,
the Sale and Servicing Agreement, the Purchase Agreement and the
Insurance and Indemnity Agreement on or prior to the Closing Date.
(i) The Sponsor will enter into the Trust Agreement on or prior
to the Closing Date.
(j) The Company and the Sponsor will apply the net proceeds
from the sale of the Designated Notes in the manner set forth in the
Final Prospectus.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. Your obligation
hereunder to purchase the Designated Notes shall be subject to the accuracy of
the representations and warranties on the part of the Company and the Sponsor
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date and
as of the Closing Date, to the accuracy of the statements of the Company and the
Sponsor made in any certificates delivered pursuant to the provisions hereof, to
the performance by the Company and the Sponsor of its obligations hereunder and
to the following additional conditions:
(a) The Registration Statement shall have become effective and
no stop order suspending the effectiveness of the Registration Statement,
as amended from time to time, shall have been issued and not withdrawn
and no proceedings for that purpose shall have been instituted or
threatened; and the Final Prospectus shall have been filed or transmitted
for filing with the Commission in accordance with Rule 424 under the 1933
Act. Any request of the Commission for inclusion of additional
information in the Registration Statement or the Base Prospectus shall
have been complied with.
(b) You shall have received from Xxxxx Xxxxxxxxxx LLP, your
counsel, a favorable opinion, dated the Closing Date, to the effect that:
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(i) No facts have come to the attention of such counsel
which lead them to believe that the Registration Statement and the
Final Prospectus (other than the financial statements and other
financial and statistical data contained therein, as to which we
are not called upon to express any belief), at the time the
Registration Statement became effective, contained any untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein not misleading,
or that the Final Prospectus (other than the financial statements
and other financial and statistical data contained therein, as to
which we are not called upon to express any belief), as of its
date and as of the date hereof, contained or contains any untrue
statement of a material fact, or omitted or omits to state any
material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
Such counsel may: (1) express its reliance as to factual matters
on the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement, the Trust
Agreement, the Indenture, the Sale and Servicing Agreement, the Purchase
Agreement and the Insurance and Indemnity Agreement; (2) assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Company; (3) qualify such
opinion only as to the federal laws of the United States of America, the laws of
the State of New York and the general corporation law of the State of Delaware.
Such counsel shall also confirm that you may rely, on and as of the Closing
Date, on any opinion or opinions of such counsel submitted to the rating agency
or agencies rating the Designated Notes as if addressed to you and dated the
Closing Date.
(c) You shall have received from Xxxxx Xxxxxxxxxx LLP, your
counsel, a favorable opinion, dated the Closing Date, to the effect that
(i) for federal income tax purposes the Designated Notes will be treated
as indebtedness and (ii) the Trust will not be treated as an association
(or publicly traded partnership) taxable as a corporation or a taxable
mortgage pool;
(d) You shall have received a certificate, signed by the
president, a senior vice president or a vice president of the Company and
the Sponsor, dated the Closing Date, to the effect that the signer of
such certificate has carefully examined the Registration Statement, the
Purchase Agreement, the Trust Agreement, the Indenture, the Sale and
Servicing Agreement, the Insurance and Indemnity Agreement, and this
Agreement and that, to the best of his or her knowledge based upon
reasonable investigation:
a. the representations and warranties of the Company
and the Sponsor in this Agreement, as of the Closing Date, and in
the Sale and Servicing Agreement, the Trust Agreement, the
Purchase Agreement, and the Insurance and Indemnity Agreement and
in all related agreements, as of the date specified in such
agreements, are true and correct, and the Company and the Sponsor
has complied with all the agreements and
12
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
b. there are no actions, suits or proceedings pending,
or to the best of such officer's knowledge, threatened against or
affecting the Company or the Sponsor which if adversely
determined, individually or in the aggregate, would be reasonably
likely to adversely affect the Company's or the Sponsor's
obligations under the Sale and Servicing Agreement, the Insurance
and Indemnity Agreement, the Purchase Agreement or this Agreement
in any material way or the Sponsor's obligations under the Trust
Agreement in any material way; and no merger, liquidation,
dissolution or bankruptcy of the Company or the Sponsor is pending
or contemplated;
c. the information contained in the Registration
Statement and the Final Prospectus relating to the Company and the
Sponsor, the Mortgage Loans or the servicing procedures of it or
its affiliates or subservicer is true and accurate in all material
respects and nothing has come to his or her attention that would
lead such officer to believe that the Registration Statement or
Final Prospectus includes any untrue statement of a material fact
or omits to state a material fact necessary to make the statements
therein not misleading;
d. the information set forth in the Schedule of
Mortgage Loans required to be furnished pursuant to the Purchase
Agreement and the Sale and Servicing Agreement is true and correct
in all material respects;
e. there has been no amendment or other document filed
affecting the certificate of incorporation or bylaws of the
Company or the certificate of formation or operating agreement of
the Sponsor, in each case since _______, 200_, and no such
amendment has been authorized. No event has occurred since
_______, 200_, which has affected the good standing of the Company
under the laws of the State of New York or the good standing of
the Sponsor under the laws of the State of Delaware;
f. there has not occurred any material adverse change,
or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the
earnings, business or operations of the Company, the Sponsor and
its subsidiaries, taken as a whole, from _______, 200_.
g. on or prior to the Closing Date, there has been no
downgrading, nor has any notice been given of (A) any intended or
potential downgrading or (B) any review or possible changes in
rating the direction of which has not been indicated, in the
rating, if any, accorded the Company or its affiliates or in any
rating accorded any securities of the
13
Company, if any, by any "nationally recognized statistical rating
organization," as such term is defined for purposes of the 1933
Act;
h. each person who, as an officer or representative of
the Company or the Sponsor, signed or signs the Registration
Statement, the Sale and Servicing Agreement, the Trust Agreement,
the Insurance and Indemnity Agreement, this Agreement, the
Purchase Agreement or any other document delivered pursuant
hereto, on the date of such execution, or on the Closing Date, as
the case may be, in connection with the transactions described in
the Sale and Servicing Agreement, the Trust Agreement, the
Insurance and Indemnity Agreement, the Purchase Agreement and this
Agreement was, at the respective times of such signing and
delivery, and is now, duly elected or appointed, qualified and
acting as such officer or representative, and the signatures of
such persons appearing on such documents are their genuine
signatures; and
i. no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's or the Sponsor's
knowledge, threatened.
The Company and the Sponsor shall attach to such certificate a
true and correct copy of its certificate of incorporation or certificate of
formation, as appropriate, and bylaws or operating agreement, as appropriate,
which are in full force and effect on the date of such certificate and a
certified true copy of the resolutions of its Board of Directors or members, as
appropriate, with respect to the transactions contemplated herein.
(e) You shall have received from Xxxxx & Xxxxx, counsel to the
Company, an opinion, dated the Closing Date, to the effect that:
(i) Each of the Company and the Sponsor has been duly
organized and is validly existing as a corporation (with respect
to the Company) or a limited liability company (with respect to
the Sponsor) in good standing under the laws of its state of
formation and is qualified to do business in each state necessary
to enable it to perform its obligations under the Sale and
Servicing Agreement, this Agreement, the Indenture, the Purchase
Agreement, the Trust Agreement and the Insurance and Indemnity
Agreement and has all power and authority necessary to own or hold
its properties and to conduct its business as now conducted by it
and to enter into and perform its obligations under this
Agreement, the Indenture, the Trust Agreement, the Sale and
Servicing Agreement, the Purchase Agreement and the Insurance and
Indemnity Agreement;
(ii) To the best knowledge of such counsel, there are no
actions, proceedings or investigations pending or threatened
against or affecting the Company or the Sponsor before or by any
court, arbitrator,
14
administrative agency or other governmental authority reasonably
likely to be adversely determined that would materially and
adversely affect the ability of the Company or the Sponsor to
carry out the transactions contemplated in this Agreement, the
Indenture, the Trust Agreement, the Sale and Servicing Agreement,
the Purchase Agreement or the Insurance and Indemnity Agreement;
(iii) No consent, approval, authorization or order of, or
filing or registration with, any state or federal court or
governmental agency or body is required for the consummation by
the Company or the Sponsor of the transactions contemplated
herein, except such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution
of the Designated Notes and except any recordation of the
assignments of the Mortgage Loans to the Trustee pursuant to the
Sale and Servicing Agreement that have not yet been completed;
(iv) The Company is not in violation of its certificate
of incorporation or by-laws, the Sponsor is not in violation of
its certificate of formation or operating agreement, neither the
Company nor the Sponsor is in default under any agreement,
indenture or instrument the effect of which violation or default
would be material to the Company or the Sponsor, and neither the
issuance and sale of the Designated Notes, nor the execution or
delivery of or performance under this Agreement, the Indenture,
the Trust Agreement, the Sale and Servicing Agreement, the
Purchase Agreement or the Insurance and Indemnity Agreement, nor
the consummation of any other of the transactions contemplated
herein or therein will conflict with or result in a breach or
violation of any term or provision of, or constitute a default (or
an event which with the passing of time or notification, or both,
would constitute a default) under, the certificate of
incorporation or by-laws of the Company, the certificate of
formation or operating agreement of the Sponsor, or, to the
knowledge of such counsel, any indenture or other agreement or
instrument to which the Company or the Sponsor or any of its
affiliates is a party or by which it or any of them is bound, or
any New York or federal statute or regulation applicable to the
Company or the Sponsor or any of its affiliates or, to the
knowledge of such counsel, any order of any New York or federal
court, regulatory body, administrative agency or governmental body
having jurisdiction over the Company or the Sponsor or any of its
affiliates;
(v) Each of the Company and the Sponsor 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 Final Prospectus, and neither the Company nor
the Sponsor has received notice of any proceedings relating to the
revocation or modification of any such license, certificates,
authority or permit which if decided adversely to the Company or
the Sponsor would, singly or in the
15
aggregate, materially and adversely affect the conduct of its
business, operations or financial condition.
(vi) The Sale and Servicing Agreement, this Agreement,
the Indenture, the Purchase Agreement and the Insurance and
Indemnity Agreement have been duly authorized, executed and
delivered by the Company and the Sponsor and constitute legal,
valid and binding agreements of the Company and the Sponsor,
enforceable against the Company and the Sponsor in accordance with
its terms, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally and to general principles of
equity, regardless of whether enforcement is sought in a
proceeding in equity or at law;
(vii) The Trust Agreement has been duly authorized,
executed and delivered by the Sponsor and constitutes a legal,
valid and binding agreement of the Sponsor enforceable against the
Sponsor in accordance with its terms, subject as to
enforceability, to bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors' rights
generally and to general principles or equity, regardless of
whether enforcement is sought in a proceeding in equity or at law;
(viii) The direction by the Sponsor to the Trustee to
execute, authenticate and deliver the Designated Notes has been
duly authorized by the Sponsor, and the Designated Notes, when
executed and authenticated in the manner contemplated in the
Indenture, will be validly issued and outstanding and entitled to
the benefits of the Indenture;
(ix) The Designated Notes and the Indenture conform in
all material respects to the descriptions thereof contained in the
Final Prospectus; and
(x) Neither the transfer of the Mortgage Loans to the
Trust, the pledge of the Mortgage Loans, the issuance or sale of
the Designated Notes nor the execution, delivery or performance by
the Company and the Sponsor of this Agreement, the Trust
Agreement, the Insurance and Indemnity Agreement, the Sale and
Servicing Agreement or the Purchase Agreement (A) conflicts or
will conflict with or results or will result in a breach of, or
constitutes or will constitute a default under, (i) any term or
provision of the certificate of incorporation or bylaws of the
Company or the certificate of formation or operating agreement of
the Sponsor; (ii) any term or provision of any material agreement,
contract, instrument or indenture, to which the Company or the
Sponsor is a party or is bound and known to such counsel; or (iii)
any order, judgment, writ, injunction or decree of any court or
governmental agency or body or other tribunal having jurisdiction
over the Company or the Sponsor and known to such counsel; or (B)
results in, or will result in the creation or imposition of any
16
lien, charge or encumbrance upon the Trust or upon the Designated
Notes, except as otherwise contemplated by the Indenture.
(xi) The Registration Statement has become effective
under the 1933 Act; to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement
has been issued and not withdrawn and no proceedings for that
purpose have been instituted or threatened and not terminated; and
the Registration Statement, the Final Prospectus and each
amendment or supplement thereto and the Indenture, as of their
respective effective or issue dates (other than the financial and
statistical information contained therein as to which we express
no opinion) complied as to form in all material respects with the
applicable requirements of the 1933 Act and the Trust Indenture
Act of 1939, as amended (the "TRUST INDENTURE ACT"), and the
respective rules and regulations thereunder; and
(xii) The Indenture has been duly qualified under the
Trust Indenture Act and the Trust Agreement is not required to be
registered under the Trust Indenture Act.
Such counsel may: (1) express its reliance as to factual matters
on the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement, the Trust
Agreement, the Indenture, the Sale and Servicing Agreement, the Purchase
Agreement and the Insurance and Indemnity Agreement; (2) assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Company; (3) qualify such
opinion only as to the federal laws of the United States of America, the laws of
the State of New York and the general corporation law of the State of Delaware.
Such counsel shall also confirm that you may rely, on and as of the Closing
Date, on any opinion or opinions of such counsel submitted to the rating agency
or agencies rating the Designated Notes as if addressed to you and dated the
Closing Date.
(f) You shall have received from Xxxxx & Xxxxx, counsel to the
Company, an opinion, dated the Closing Date, to the effect that the sales
of the Mortgage Loans (i) from the Company to the Sponsor and (ii) from
the Sponsor to the Trust will be "true sales" for United States
bankruptcy purposes;
(g) You shall have received from Xxxxx & Xxxxx, counsel to the
Company, an opinion, dated the Closing Date, to the effect that (i) in
the case of the bankruptcy of the Sponsor, a court would not disregard
the corporate form of the Sponsor so as to cause substantive
consolidation under the United States Bankruptcy Code of the assets and
liabilities of the Sponsor and the Company and (ii) in the case of the
bankruptcy of the Sponsor or the Company, a court would not disregard the
corporate form of the Sponsor or the Company, respectively, so as to
cause substantive consolidation under the United States Bankruptcy Code
of the assets and liabilities of the Sponsor or the Company,
respectively, and the Issuer;
17
(h) You shall have received from [Accountants], certified
public accountants, one or more letters, including bring-down letters,
dated the date hereof and satisfactory in form and substance to you and
your counsel, to the effect that such accountants have performed certain
specified procedures regarding certain information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement.
(i) You shall have received a rating letter assigning a rating
to the Designated Notes of "____" from [First Rating Agency], and "___"
from [Second Rating Agency], which ratings shall not have been withdrawn.
(j) You shall have received from counsel for the Trustee a
favorable opinion, dated the Closing Date, in form and substance
satisfactory to you and your counsel, to the effect that the Indenture
has been duly authorized, executed and delivered by the Trustee and
constitutes a legal, valid, binding and enforceable agreement of the
Trustee, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights in general and by general principles of equity regardless of
whether enforcement is considered in a proceeding in equity or at law,
and as to such other matters as may be agreed upon by you and the
Trustee.
(k) You shall have received from counsel for the Owner Trustee
a favorable opinion, dated the Closing Date, in form and substance
satisfactory to you and your counsel, to the effect that the Trust
Agreement has been duly authorized, executed and delivered by the Owner
Trustee and constitutes a legal, valid, binding and enforceable agreement
of the Owner Trustee, subject as to enforceability to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights in general and by general principles of equity
regardless of whether enforcement is considered in a proceeding in equity
or at law, and as to such other matters as may be agreed upon by you and
the Owner Trustee.
(l) You shall have received from the Trustee a certificate,
signed by the President, a senior vice president or a vice president of
the Trustee, dated the Closing Date, to the effect that each person who,
as an officer or representative of the Trustee, signed or signs the
Designated Notes, the Indenture or any other document delivered pursuant
hereto, on the date hereof or on the Closing Date, in connection with the
transactions described in the Indenture was, at the respective times of
such signing and delivery, and is now, duly elected or appointed,
qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents are their genuine
signatures.
(m) You shall have received from the Owner Trustee a
certificate, signed by the President, a senior vice president or a vice
president of the Owner Trustee, dated the Closing Date, to the effect
that each person who, as an officer or representative of the Owner
Trustee, signed or signs the Trust Agreement, the Certificate or any
other document delivered pursuant hereto, on the date hereof
18
or on the Closing Date, in connection with the transactions described in
the Trust Agreement was, at the respective times of such signing and
delivery, and is now, duly elected or appointed, qualified and acting as
such officer or representative, and the signatures of such persons
appearing on such documents are their genuine signatures.
(n) The Policy relating to the Designated Notes shall have been
duly executed and issued at or prior to the Closing Date and shall
conform in all material respects to the description thereof in the Final
Prospectus.
(o) You shall have received a favorable opinion of in-house
counsel to [Insurer], dated the Closing Date and in form and substance
satisfactory to your counsel, to the effect that:
(i) [Insurer] is a stock insurance corporation, duly
incorporated and validly existing under the laws of the State of
[State]. [Insurer] is validly licensed to do business in [State]
and is authorized to issue the Policy and perform its obligations
under the Policy in accordance with the terms thereof.
(ii) The execution and delivery by [Insurer] of the
Policy and the Insurance and Indemnity Agreement are within the
corporate power of [Insurer] and have been authorized by all
necessary corporate action on the part of [Insurer]; the Policy
has been duly executed and is the valid and binding obligation of
[Insurer] enforceable in accordance with its terms except that the
enforcement of the Policy may be limited by laws relating to
bankruptcy, insolvency, reorganization, moratorium, receivership
and other similar laws affecting creditors' rights generally and
by general principles of equity.
(iii) [Insurer] is authorized to deliver the Insurance and
Indemnity Agreement, and such agreement has been duly executed and
delivered and constitutes the legal, valid and binding obligation
of [Insurer] enforceable in accordance with its terms except that
the enforcement of the Insurance and Indemnity Agreement may be
limited by laws relating to bankruptcy, insolvency,
reorganization, moratorium, receivership and other similar laws
affecting creditors' rights generally and by general principles of
equity and by public policy considerations relating to
indemnification for securities law violations.
(iv) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is required
on the part of [Insurer], the lack of which would adversely affect
the validity or enforceability of the Policy; to the extent
required by applicable legal requirements that would adversely
affect validity or enforceability of the Policy, the form of the
Policy has been filed with, and approved by, all
19
governmental authorities having jurisdiction over [Insurer] in
connection with the Policy.
(v) The Policy is not required to be registered under
the 0000 Xxx.
(vi) The information set forth under the caption "The
Insurer and the Policy" in the Prospectus Supplement forming a
part of the Registration Statement, insofar as such statements
constitute a description of the Policy, accurately summarizes the
Policy.
In rendering this opinion, such counsel may rely, as to matters of
fact, on certificates of responsible officers of the Company, the Trustee,
[Insurer] and public officials. Such opinion may assume the due authorization,
execution and delivery of the instruments and documents referred to therein by
the parties thereto other than [Insurer].
(p) On or prior to the Closing Date, there has been no
downgrading, nor has any notice been given of (A) any intended or
potential downgrading or (B) any review or possible changes in rating the
direction of which has not been indicated, in the rating, if any,
accorded [Insurer]'s claims paying ability by any "nationally recognized
statistical rating organization," as such term is defined for purposes of
the 1933 Act.
(q) On or prior to the Closing Date, there has been no
downgrading, nor has any notice been given of (A) any intended or
potential downgrading or (B) any review or possible changes in rating the
direction of which has not been indicated, in the rating, if any,
accorded the Company or in any rating accorded any securities of the
Company, if any, by any "nationally recognized statistical rating
organization," as such term is defined for purposes of the 1933 Act.
(r) There has not occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations, since ________, 200_, of (A)
the Company and its subsidiaries or (B) [Insurer], that is in your
judgment material and adverse and that makes it in your judgment
impracticable to market the Designated Notes on the terms and in the
manner contemplated in the Final Prospectus.
(s) You shall have received from [Insurer] a certificate,
signed by the president, a senior vice president or a vice president of
[Insurer], dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Policy, the Insurance and
Indemnity Agreement and the related documents and that, to the best of
his or her knowledge based on reasonable investigation:
(i) There are no actions, suits or proceedings pending
or threatened against or affecting [Insurer] which, if adversely
determined, individually or in the aggregate, would adversely
affect [Insurer]'s performance under the Policy or the Insurance
and Indemnity Agreement;
20
(ii) Each person who as an officer or representative of
[Insurer], signed or signs the Policy, the Insurance and Indemnity
Agreement or any other document delivered pursuant hereto, on the
date thereof, or on the Closing Date, in connection with the
transactions described in this Agreement was, at the respective
times of such signing and delivery, and is now, duly elected or
appointed, qualified and acting as such officer or representative,
and the signatures of such persons appearing on such documents are
their genuine signatures;
(iii) The tables regarding [Insurer]'s capitalization set
forth under the heading "The Insurer and the Policy" presents
fairly the capitalization of [Insurer] as of ________, 200_;
(iv) The audited balance sheet of [Insurer] as of
________, 200_ and the related statement of income and retained
earnings for the fiscal year then ended, and the accompanying
footnotes, together with the opinion of [Insurer's Accountants],
an independent certified public accountant, copies of which are
included in the Prospectus Supplement, fairly present in all
material respects the financial condition of [Insurer] as of such
date and for the period covered by such statements in accordance
with generally accepted accounting principles consistently
applied.
(v) to the best knowledge of such officer, since
_______, 200_, no material adverse change has occurred in the
financial position of [Insurer] other than as set forth in the
Prospectus Supplement.
[Insurer] shall attach to such certificate a true and correct copy
of its certificate or articles of incorporation, as appropriate, and its bylaws,
all of which are in full force and effect on the date of such certificate.
(t) You shall have received such further information,
certificates, documents and opinions as you may reasonably have requested
not less than three business days prior to the Closing Date.
(u) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
satisfactory in form and substance to you and your counsel, and you and
such counsel shall have received such information, certificates and
documents as you or they may have reasonably requested.
(v) Prior to the Closing Date, your counsel 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 Designated 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 the Company in
connection with the issuance and sale of the Designated Notes as
21
herein contemplated shall be satisfactory in form and substance to you
and your counsel.
(w) Subsequent to the execution and delivery of this Agreement
none of the following shall have occurred: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or
the over-the-counter market shall have been suspended or minimum prices
shall have been established on either of such exchanges or such market by
the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium
shall have been declared by Federal or state authorities; (iii) the
United States shall have become engaged in hostilities, there shall have
been an escalation of hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the
United States; or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets of the United
States shall be such) as to make it, in the judgment of the Underwriter,
impractical or inadvisable to proceed with the public offering or
delivery of the Designated Notes on the terms and in the manner
contemplated in the Final Prospectus.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, if the Company or the Sponsor is in breach of any covenants or
agreements contained herein or if any of the opinions and certificates referred
to above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to you and your counsel, this
Agreement and all your obligations hereunder may be canceled by you at, or at
any time prior to, the Closing Date. Notice of such cancellation shall be given
to the Company and the Sponsor in writing, or by telephone or facsimile
transmission confirmed in writing.
7. PAYMENT OF EXPENSES. The Sponsor or the Company agrees to pay: (a)
the costs incident to the authorization, issuance, sale and delivery of the
Designated Notes and any taxes payable in connection therewith; (b) the costs
incident to the preparation, printing and filing under the 1933 Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), the Base Prospectus, the Final Prospectus, any amendment or
supplement to the Base Prospectus or any document incorporated by reference
therein, all as provided in this Agreement; (d) the costs of reproducing and
distributing this Agreement; (e) the fees and expenses of qualifying the
Designated Notes under the securities laws of the several jurisdictions as
provided in Section 5(g) hereof and of preparing, printing and distributing a
Blue Sky Memorandum (including related fees and expenses of your counsel); (f)
any fees charged by securities rating services for rating the Designated Notes;
(g) any fees and expenses of your counsel, the Trustee, the Trustee's counsel
and the Sponsor's and the Company's counsel incurred in connection with the
transactions described herein; (h) any fees and expenses associated with
registering the Designated Notes with The Depository Trust Company, Clearstream
Banking, societe
22
anonyme or the Euroclear System; (i) any fees and expenses incurred in
connection with your or [Insurer]'s due diligence associated with the
transactions described herein, including but not limited to the costs and
expenses incurred in connection with re-underwriting and appraisal services
performed by third parties; and (j) all other costs and expenses incident to the
performance of the obligations of the Company.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) Each of the Company and the Sponsor agrees to indemnify and
hold you harmless and each person, if any, who controls you within the
meaning of Section 15 of the 1933 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 Designated
Notes), to which you or any such controlling person may become subject,
under the 1933 Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) any untrue statement or
alleged untrue statement of a material fact contained in the Final
Prospectus or (iv) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading and shall reimburse you and each such
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by you or such controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that the Company and the Sponsor shall not be liable
in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement
or alleged untrue statement or omission or alleged omission made in any
Base Prospectus, the Final Prospectus or the Registration Statement in
reliance upon and in conformity with any Underwriter Information (defined
below); and PROVIDED, FURTHER, that as to any Base Prospectus this
indemnity shall not inure to your benefit or the benefit of any
controlling person on account of any loss, claim, damage, liability or
action arising from the sale of the Designated Notes to any person by you
if you failed to send or give a copy of the Final Prospectus, as amended
or supplemented, to that person within the time required by the 1933 Act.
For purposes of the last proviso to the immediately preceding sentence,
the term "Final Prospectus" shall not be deemed to include the documents
incorporated therein by reference, and you shall not be obligated to send
or give any supplement or amendment to any document incorporated therein
by reference to any person other than a person to whom you had delivered
such incorporated document or documents in response to a written request
therefor. The foregoing indemnity agreement is in addition to any
liability which each of the Company and the Sponsor may otherwise have to
you or any person who controls you.
23
(b) You agree to indemnify and hold harmless each of the
Company and the Sponsor, each of its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls
the Company and the Sponsor within the meaning of Section 15 of the 1933
Act against any and all loss, claim, damage or liability, or any action
in respect thereof, to which the Company, the Sponsor or any such
director, officer or controlling person may become subject, under the
1933 Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) any untrue statement or alleged
untrue statement of a material fact contained in the Final Prospectus or
(iv) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with Underwriter Information, and
shall reimburse the Company and the Sponsor and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company and the Sponsor or any director, officer or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity agreement
is in addition to any liability which you may otherwise have to each of
the Company and the Sponsor or any such director, officer or controlling
person.
(c) Promptly after receipt by any indemnified party under this
Section 8 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 8, 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 8 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 8.
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 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
24
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 you, if the indemnified parties under
this Section 8 consist of you or any of your controlling persons, or by the
Company, if the indemnified parties under this Section 8 consist of the Company,
the Sponsor, or any of the Company's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 8(a), 8(b) and 8(c) 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 sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
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) You agree to deliver to the Company or the Sponsor no later
than the date on which the Prospectus Supplement is required to be filed
pursuant to Rule 424 with a copy of its Derived Information (defined
below) for filing with the Commission on Form 8-K.
(e) You agree, assuming all Company-Provided Information
(defined below) is accurate and complete in all material respects, to
indemnify and hold
25
harmless the Company, the Sponsor, each of the Company's and the
Sponsor's officers and directors and each person who controls the Company
and the Sponsor within the meaning of Section 15 of the 1933 Act against
any and all losses, claims, damages or liabilities, joint or several, to
which they 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 of a
material fact contained in the Derived Information provided by you, 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, in the light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by
him, her or it in connection with investigating or defending or preparing
to defend any such loss, claim, damage, liability or action as such
expenses are incurred. Your obligations under this Section 8(e) shall be
in addition to any liability which you may otherwise have.
(f) Each of the Company and the Sponsor agree to indemnify and
hold harmless the Underwriter, each of the Underwriter's officers and
directors and each person who controls the Underwriter within the meaning
of Section 15 of the 1933 Act against any and all losses, claims, damages
or liabilities, joint or several, to which they 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 of a material fact contained in the
Company-Provided Information provided by the Company or the Sponsor, 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, in the light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by
him, her or it in connection with investigating or defending or preparing
to defend any such loss, claim, damage, liability or action as such
expenses are incurred. Each of the Company's and the Sponsor's
obligations under this Section 8(f) shall be in addition to any liability
which they may otherwise have.
The procedures set forth in Section 8(c) shall be equally
applicable to Sections 8(e) and 8(f).
(g) For purposes of this Section 8, the term "UNDERWRITER
INFORMATION" means that written information furnished to the Company and
the Sponsor by you or on your behalf specifically for inclusion in the
Final Prospectus, other than Derived Information, which is set forth (i)
in the next-to-last sentence of the next-to-last paragraph on page S-__
of the Prospectus Supplement, (ii) in the first two sentences of the
paragraph immediately preceding the Table of Contents on page S-__ of the
Prospectus Supplement and (iii) in the _______ paragraph under the
heading "Method of Distribution" of the Prospectus Supplement.
26
(h) For purposes of this Section 8, the term "DERIVED
INFORMATION" means such portion, if any, of the information delivered to
the Company or the Sponsor by the Underwriter pursuant to Section 8(e)
for filing with the Commission on Form 8-K as:
(i) is not contained in the Final Prospectus without
taking into account information incorporated therein by reference;
(ii) does not constitute Company-Provided Information;
and
(iii) is of the type of information defined as Collateral
Term Sheets, Structural Term Sheets or Computational Materials (as
such terms are interpreted in the No-Action Letters).
"COMPANY-PROVIDED INFORMATION" means any computer tape furnished
to the Underwriter by the Company concerning the Mortgage Loans comprising the
Trust or any other information furnished by the Company to the Underwriter that
is relied on or is reasonably anticipated by the parties hereto to be relied on
by the Underwriter in the course of the Underwriter's preparation of its Derived
Information or the written information to be included in the Prospectus
Supplement by the Underwriter as set forth in Section 8(i) herein.
The terms "COLLATERAL TERM SHEET" and "STRUCTURAL TERM SHEET"
shall have the respective meanings assigned to them in the February 13, 1995
letter (the "PSA LETTER") of Cleary, Gottlieb, Xxxxx & Xxxxxxxx on behalf of the
Public Securities Association (which letter, and the SEC staff's response
thereto, were publicly available February 17, 1995). The term "COLLATERAL TERM
SHEET" as used herein includes any subsequent Collateral Term Sheet that
reflects a substantive change in the information presented. The term
"COMPUTATIONAL MATERIALS" has the meaning assigned to it in the May 17, 1994
letter (the "XXXXXX LETTER" and together with the PSA Letter, the "NO-ACTION
LETTERS") of Xxxxx & Wood on behalf of Xxxxxx, Xxxxxxx & Co., Inc. (which
letter, and the SEC staff's response thereto, were publicly available May 20,
1994).
(i) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8 in respect of any loss, claim, damage
or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party
as a result of such loss, claim, damage or liability, or action in
respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Sponsor on
the one hand and you on the other from the offering of the Designated
Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or if the indemnified party failed to give
the notice required under Section 8(c), in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the
Sponsor on the one hand and you on the other with respect to the
statements or omissions which
27
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations.
The relative benefits to you and the Company and the Sponsor shall
be deemed to be in such proportion so that you are responsible for ______% of
the offering price and the Company and the Sponsor are responsible for ______%
of the offering price.
The relative fault of each of you and the Company and the Sponsor
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 the Company, the Sponsor or by you, 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.
The Company, the Sponsor and you agree that it would not be just
and equitable if contributions pursuant to this Section 8(h) 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 8(h) shall be deemed to include, for purposes of this Section 8(h), 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 you be responsible for any amount in excess of
the underwriting discount applicable to the Designated Notes purchased by you
hereunder. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
You confirm that the information set forth in the fifth paragraph
under the caption "Method of Distribution" in the Prospectus Supplement,
together with the Derived Information constitutes the only information furnished
in writing to the Company or the Sponsor by you or on your behalf specifically
for inclusion in the Registration Statement and the Final Prospectus.
9. TERMINATION.
(a) This Agreement shall be subject to termination in your
absolute discretion, by notice given to the Company or the Sponsor prior
to delivery of and payment for the Designated Notes, if, prior to such
time, (i) trading of securities generally on the New York Stock Exchange
or the American Stock Exchange shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking activities in
New York shall have been declared by either federal or New York State
authorities or (iii) there shall have occurred any material outbreak or
declaration of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make
it, in
28
your reasonable judgment, impracticable to market the Designated Notes on
the terms specified herein.
(b) If the sale of the Designated Notes shall not be
consummated because any condition to your obligations set forth in
Section 6 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Company or the Sponsor to perform any
agreement herein or comply with any provision hereof other than by reason
of your default, the Company and the Sponsor shall reimburse you for the
reasonable fees and expenses of your counsel and for such other
out-of-pocket expenses as shall have been incurred by you in connection
with this Agreement and the proposed purchase of the Designated Notes,
and upon demand the Company and the Sponsor shall pay the full amount
thereof to you.
(c) This Agreement will survive delivery of and payment for the
Designated Notes. The provisions of Sections 1, 5, 7, 8 and this Section
9(c) shall survive the termination or cancellation of this Agreement.
10. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to you, will be mailed, delivered or
transmitted by facsimile and confirmed to you at [Underwriter's Address]; or, if
sent to (i) the Sponsor, will be mailed, delivered or transmitted by facsimile
and confirmed to it at 000 Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000,
attention: Finance Department or (ii) the Company, will be mailed, delivered or
transmitted by facsimile and confirmed to it at 000 Xxxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxx 00000, attention: Finance Department.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons and their successors and assigns, and no
other person will have any right or obligation hereunder.
12. APPLICABLE LAW; COUNTERPARTS. This Agreement will be governed by
and construed in accordance with the laws of the State of New York. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument.
13. SURVIVAL. The respective indemnities, representations, warranties
and agreements of the Company and you contained in this Agreement, or made by or
on behalf of them, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Designated 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.
14. DEFINITION OF THE TERM "BUSINESS DAY". For purposes of this
Agreement, "BUSINESS DAY" means any day on which the New York Stock Exchange,
Inc. is open for trading.
29
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
16. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company, the Sponsor and you.
Very truly yours,
GREENPOINT MORTGAGE FUNDING, INC.
By:
---------------------------------
Name:
Title:
GREENPOINT MORTGAGE SECURITIES LLC
By:
---------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
[UNDERWRITER]
By:
----------------------------------
Name:
Title:
[Underwriting Agreement]
SCHEDULE I
Underwriting Agreement dated _______, 200_.
As used in this Agreement, the term "Registration Statement" refers to the
Registration Statement on Form S-3 (File No. 333-108405), originally filed on
October __, 2003 and declared effective by the Commission on October __, 2003.
Closing Date: _______, 200_.
--------------------------------------------------------------------------------
Title and Description of Designated Notes:
GreenPoint Home Equity Loan Trust 200_-_, Home Equity Loan Asset-Backed
Securities, Series 200_-_,
o $______________ Class A Variable Rate Notes.
Purchase Price: ________%.
Pool Principal Balance as of Cut-Off Date $_____________
Cut-off Date: _______, 200_
