Exhibit 1.1
EXECUTION COPY
GREENPOINT MORTGAGE FUNDING, INC.
GREENPOINT MORTGAGE SECURITIES INC.
HOME EQUITY LOAN VARIABLE RATE ASSET-BACKED NOTES
Series 2001-2
Class A-1 Notes, Class A-2 Notes and Class A-3 Notes
UNDERWRITING AGREEMENT
New York, New York
November 6, 2001
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Dear Sirs:
GreenPoint Mortgage Securities Inc., a Delaware corporation
(the "Sponsor"), proposes to cause GreenPoint Home Equity Loan Trust 2001-2 (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 November 1, 2001, between the Trust and The Bank of New York, as
Trustee (the "Trustee"). The Trust will be formed pursuant to a Trust Agreement
(the "Trust Agreement") to be dated as of November 1, 2001 and entered into
between the Sponsor and Wilmington Trust Company, as Owner Trustee. The
Designated Notes, a Class S Certificate 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 November 1, 2001 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 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.
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(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 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 November 1, 2001 between the Company
and the Sponsor (the "Purchase Agreement") and the Insurance Agreement,
dated as of November 1, 2001 (the "Insurance Agreement") among the
Company, MBIA Insurance Corporation ("MBIA"), the Sponsor, the Trustee
and the Trust.
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(g) The Sponsor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such
qualification, has full power and authority (corporate or other)
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 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) PricewaterhouseCoopers LLP 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 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 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.
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(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) Each of the Company and the Sponsor is not in violation of its
certificate of incorporation or by-laws or 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 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
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 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 Agreement or (ii) the business,
operations, financial conditions, properties or assets of the Company.
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(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 incorporation or bylaws 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 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 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 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 Agreement,
except such consents, approvals, authorizations, registrations or
qualifications as may be required under State securities or Blue Sky
laws in connection with the purchase and distribution of the Designated
Notes by you or as have been obtained.
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(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 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, 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.
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(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 Initial Mortgage
Loans, and (ii) cash and/or other assets, if any, in the amount set
forth in the Indenture (the "Initial Collateral").
(z) The Trust has corporate power and authority to assign, pledge
and deliver the Initial 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
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.
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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
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.
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(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 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.
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(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
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 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 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 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 satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
12
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 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 articles of incorporation or bylaws of the Company or the
Sponsor since December 31, 2000, and no such amendment has been
authorized. No event has occurred since December 31, 2000, 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 December 31, 2000.
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 Company, if any, by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of the 1933 Act;
13
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
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 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 or articles of incorporation, as appropriate,
and bylaws 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 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 in good standing under the
laws of its state of incorporation 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 Agreement and has all corporate 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
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, 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 Agreement;
14
(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) Each of the Company and the Sponsor is not in violation of
its certificate of incorporation or by-laws or 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 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 or 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 aggregate, materially and adversely
affect the conduct of its business, operations or financial
condition.
15
(vi) The Sale and Servicing Agreement, this Agreement, the
Indenture, the Purchase Agreement and the Insurance 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
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 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 lien, charge or encumbrance upon the Trust or upon
the Designated Notes, except as otherwise contemplated by the
Indenture.
16
(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 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;
(h) You shall have received from PricewaterhouseCoopers LLP,
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.
17
(i) You shall have received a rating letter assigning a rating to
the Designated Notes of "AAA" from Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc., and "Aaa" from Xxxxx'x
Investors Service, Inc., 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 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.
18
(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 MBIA, dated the Closing Date and in form and substance satisfactory
to your counsel, to the effect that:
(i) MBIA is a stock insurance corporation, duly incorporated and
validly existing under the laws of the State of New York. MBIA is
validly licensed to do business in New York 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 MBIA of the Policy and the
Insurance Agreement are within the corporate power of MBIA and have
been authorized by all necessary corporate action on the part of
MBIA; the Policy has been duly executed and is the valid and binding
obligation of MBIA 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) MBIA is authorized to deliver the Insurance Agreement, and
such agreement has been duly executed and delivered and constitutes
the legal, valid and binding obligation of MBIA enforceable in
accordance with its terms except that the enforcement of the
Insurance 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 MBIA, 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 governmental authorities having
jurisdiction over MBIA in connection with the Policy.
19
(v) The Policy is not required to be registered under the 1933
Act.
(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, MBIA
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 MBIA.
(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 MBIA'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 December 31, 2000, of (A)
the Company and its subsidiaries or (B) MBIA, 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 MBIA a certificate, signed by the
president, a senior vice president or a vice president of MBIA, dated
the Closing Date, to the effect that the signer of such certificate has
carefully examined the Policy, the Insurance 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 MBIA which, if adversely determined,
individually or in the aggregate, would adversely affect MBIA's
performance under the Policy or the Insurance Agreement;
(ii) Each person who as an officer or representative of MBIA,
signed or signs the Policy, the Insurance 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;
20
(iii) The tables regarding MBIA's capitalization set forth under
the heading "The Insurer and the Policy" presents fairly the
capitalization of MBIA as of June 30, 2001;
(iv) The audited balance sheet of MBIA as of December 31, 2000
and the related statement of income and retained earnings for the
fiscal year then ended, and the accompanying footnotes, together
with opinion of PricewaterhouseCoopers LLP, an independent certified
public accountant, copies of which are included in the Prospectus
Supplement, fairly present in all material respects the financial
condition of MBIA 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 September 30,
2001, no material adverse change has occurred in the financial
position of MBIA other than as set forth in the Prospectus
Supplement.
MBIA 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 herein contemplated shall be satisfactory in form and
substance to you and your counsel.
21
(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 anonyme or the Euroclear System; (i) any fees and expenses
incurred in connection with your or MBIA'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.
22
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.
(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.
23
(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.
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.
24
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.
(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 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.
25
(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-1 of the Prospectus Supplement, (ii) in the first two sentences
of the paragraph immediately preceding the Table of Contents on page
S-2 of the Prospectus Supplement and (iii) in the third paragraph under
the heading "Method of Distribution" of the Prospectus Supplement.
(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
26
(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 Xxxxxx, Xxxxxxxx, 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 Brown & Xxxx 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 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 0.24% of the
offering price and the Company and the Sponsor are responsible for 99.76% 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.
27
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 1933 Act) 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 "Underwriting" 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 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.
28
(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 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000; 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, xxxxxxxxx: 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.
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.
29
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: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
GREENPOINT MORTGAGE SECURITIES INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
GREENWICH CAPITAL MARKETS, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
[Underwriting Agreement]
SCHEDULE I
Underwriting Agreement dated November 6, 2001.
As used in this Agreement, the term "Registration Statement" refers to the
Registration Statement on Form S-3 (File No. 333-62698), originally filed on
June 8, 2001 and declared effective by the Commission on July 27, 2001.
Closing Date: November 20, 2001.
--------------------------------------------------------------------------------
Title and Description of Designated Notes:
GreenPoint Home Equity Loan Trust 2001-2, Home Equity Loan Asset-Backed
Securities, Series 2001-2,
o $100,000,000 Class A-1 Variable Rate Notes.
Purchase Price: 99.76%.
o $100,000,000 Class A-2 Variable Rate Notes.
Purchase Price: 99.76%.
o $245,000,000 Class A-3 Variable Rate Notes.
Purchase Price: 99.76%.
Pool I Principal Balance as of Initial Cut-Off Date (Relating to Class A-1): $ 98,670,820
Pool II Principal Balance as of Initial Cut-Off Date (Relating to Class A-2): $ 86,932,624
Pool III Principal Balance as of Initial Cut-Off Date (Relating to Class A-3): $ 163,312,202
Cut-off Date: October 31, 2001
