EXECUTION
GREENWICH CAPITAL ACCEPTANCE, INC.
Xxxxxxxxx Mortgage Securities Trust 2001-1
Mortgage Loan Pass-Through Certificates, Series 2001-1
Class A, Class X, Class A-R, Class B-1, Class B-2 and Class B-3
UNDERWRITING AGREEMENT
October 29, 2001
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Greenwich Capital Acceptance, Inc., a Delaware corporation (the
"Company"), proposes to sell to Greenwich Capital Markets, Inc. (the
"Underwriter"), its Xxxxxxxxx Mortgage Securities Trust 2001-1 Certificates in
the classes, in the respective original principal amounts and with the
designations set forth in Schedule I hereto (the "Offered Certificates"). Only
the Offered Certificates are being purchased by the Underwriter hereunder. The
Offered Certificates, together with the Class B-4, Class B-5, Class B-6 and
Class LTA-R Certificates (collectively, the "Certificates"), will be issued by
the Company pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of October 1, 2001, among the Company, as
depositor (the "Depositor"), Xxxxxxxxx Mortgage Home Loans, Inc., as seller (the
"Seller"), Washington Mutual Mortgage Securities Corp., as master servicer (the
"Master Servicer"), The Murrayhill Company, as loss mitigation advisor (the
"Loss Mitigation Advisor"), Bankers Trust (Delaware), as co-trustee and Bankers
Trust Company of California, N.A., as trustee (the "Trustee"). Each Certificate
will evidence the holder's beneficial ownership in a trust fund (the "Trust
Fund"), created pursuant to the Pooling and Servicing Agreement, and consisting
primarily of adjustable rate, residential mortgage loans (the "Mortgage Loans")
secured primarily by first liens on one- to four-family residential properties.
The Offered Certificates are described more fully in Schedule I hereto and in
the Prospectus Supplement furnished to the Underwriter by the Company and
referred to below.
The Mortgage Loans will be serviced by the Master Servicer pursuant to
the Pooling and Servicing Agreement. Also, an indemnification and contribution
agreement, dated October 29, 2001 (collectively, the "Indemnification
Agreement"), will be entered into among the Depositor, the Underwriter and the
Master Servicer.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, the Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (the file
number of which is set forth in Schedule I hereto) for the registration of
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
Greenwich Capital Markets, Inc. ("GCM") as the Underwriter. The Company 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 Company proposes
to file with the Commission, with the Underwriter's consent, pursuant to Rule
424 under the 1933 Act, a supplement to the form of prospectus included in such
registration statement relating to the Offered Certificates and the plan of
distribution thereof, and has previously advised the Underwriter of all further
information (financial and other) with respect to the Offered Certificates and
the Mortgage Loans 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 "Basic
Prospectus" (except that if the prospectus filed by the Company 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 "Basic Prospectus" shall refer
to such Rule 424(b) prospectus from and after the time it is mailed or
transmitted to the Commission for filing); such form of prospectus supplemented
by the prospectus supplement (the "Prospectus Supplement") relating to the
Offered Certificates, in the form in which it shall be first filed with the
Commission pursuant to Rule 424(b) under the 1933 Act (including the Basic
Prospectus as so supplemented), is referred to herein as the "Final Prospectus".
Any preliminary form of the Final Prospectus that has heretofore been filed
pursuant to Rule 424 or, prior to the effective date of the Registration
Statement, pursuant to Rule 402(a) or 424(a) is hereinafter called a
"Preliminary 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, comply
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, will not
contain any untrue statement of a material fact and will not omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the Company 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 the Underwriter
specifically for use in the Registration Statement and the Final Prospectus.
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(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, 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 Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreement, dated as of
October 1, 2001, between the Company and the Seller (the "Mortgage Loan Purchase
Agreement"), and the Indemnification Agreement.
(d) 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 been 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 Offered
Certificates for sale in any jurisdiction or any initiation or threat of any
proceeding for such purpose.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) Each of the Pooling and Servicing Agreement, the Mortgage
Loan Purchase Agreement and the Indemnification Agreement (collectively, the
"Other Agreements"), when executed and delivered as contemplated thereby, will
have been duly authorized, executed and delivered by the Company; and each of
the Pooling and Servicing Agreement and Mortgage Loan Purchase Agreement, when
so executed and delivered, will constitute a legal, valid, binding and
enforceable agreement of the Company, subject, as to enforceability, to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally, (ii) general principles of equity
regardless of whether enforcement is sought in a proceeding in equity or at law,
and (iii) with respect to any rights of indemnity under the Mortgage Loan
Purchase Agreement limitations of public policy under applicable securities
laws.
(g) As of the Closing Date, the Offered Certificates will be
duly and validly authorized and, when duly and validly executed, authenticated
and delivered in accordance with the Pooling and Servicing Agreement and
delivered to the Underwriter for the account of the Underwriter against payment
therefor as provided herein, will be duly and validly issued and outstanding and
entitled to the benefits of the Pooling and Servicing Agreement. The Offered
Certificates, except for the Class B-2 and Class B-3 Certificates, will be
"mortgage related securities," as such term is defined in the singular in the
Securities Exchange Act of 1934, as amended (the "1934 Act").
(h) As of the Cut-off Date, each of the Mortgage Loans will
meet the criteria for selection to be described in the Final Prospectus.
(i) The Company 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
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or default would be material to the Company. None of (i) the issuance and sale
of the Offered Certificates, (ii) the execution and delivery by the Company of
this Agreement and the Other Agreements, (iii) the consummation by the Company
of any of the transactions herein or therein contemplated, and (iv) the
compliance by the Company 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 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 is a party or by
which it is bound, or any statute, order or regulation applicable to the Company
of any court, regulatory body, administrative agency or governmental body having
jurisdiction over the Company. The Company 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 to perform its obligations
under this Agreement and the Other Agreements or (ii) the business, operations,
financial conditions, properties or assets of the Company.
(j) There are no actions or proceedings against, or
investigations of, the Company pending or, to the knowledge of the Company,
threatened, before any court, arbitrator, administrative agency or other
tribunal (i) asserting the invalidity of this Agreement, the Other Agreements or
the Certificates, (ii) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this Agreement and
the Other Agreements, (iii) that are reasonably likely to be adversely
determined and that might materially and adversely affect the performance by the
Company of its obligations under, or the validity or enforceability of, this
Agreement, the Other Agreements or the Certificates or (iv) seeking to affect
adversely the federal income tax attributes of the Certificates as described in
the Final Prospectus.
(k) Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement and the Other
Agreements or the execution, delivery and sale of the Certificates have been or
will be paid on or prior to the Closing Date.
(l) Immediately prior to the assignment of the Mortgage Loans
to the Trustee as contemplated by the Pooling 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 and to such Mortgage Loans or in the Pooling and
Servicing Agreement and (iii) will have the power and authority to sell such
Mortgage Loans to the Trustee, and upon the execution and delivery of the
Pooling and Servicing Agreement by the Trustee, the Trustee will have acquired
all of the Company's right, title and interest in and to the Mortgage Loans.
(m) Neither the Company nor the Trust Fund is, and neither the
issuance and sale of the Certificates nor the activities of the Trust Fund
pursuant to the Pooling and Servicing Agreement will cause the Company or the
Trust Fund 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").
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2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Company
agrees to sell the Offered Certificates to the Underwriter, and the Underwriter
agrees to purchase, from the Company, the Offered Certificates in the respective
principal amounts of the Classes of Offered Certificates set forth in Schedule I
hereto at the respective purchase prices set forth therein (including accrued
interest from and including the Cut-off Date to, but not including, the Closing
Date).
3. Delivery and Payment. Delivery of and payment for the Offered
Certificates shall be made at the offices of XxXxx Xxxxxx LLP, 0000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. at 10:00 a.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 the Underwriter shall designate), which date
and time may be changed by agreement between the Underwriter and the Company or
as provided herein (such date and time of delivery and payment for the Offered
Certificates being herein called the "Closing Date"). Delivery of the Offered
Certificates shall be made to the Underwriter, against payment by the
Underwriter of the purchase price therefor in immediately available funds wired
to such bank as may be designated by the Company, or such other manner of
payment as may be agreed upon by the Company and the Underwriter. The Offered
Certificates to be so delivered shall be in definitive fully registered form,
unless otherwise agreed, in such denominations and registered in such names as
the Underwriter may have requested in writing not less than two full business
days in advance of the Closing Date.
The Company agrees to have the Offered Certificates available for
inspection, checking and packaging by the Underwriter in the Borough of
Manhattan in The City of New York, not later than 10:00 a.m. on the business day
prior to the Closing Date.
4. Offering of the Offered Certificates. It is understood that the
Underwriter proposes to offer the Offered Certificates for sale to the public as
set forth in the Final Prospectus.
5. Covenants of the Company. The Company covenants and agrees with the
Underwriter that:
(a) The Company will prepare a supplement to the Basic
Prospectus setting forth the amount of Offered Certificates covered thereby and
the terms thereof not otherwise specified in the Basic Prospectus, the expected
proceeds to the Company from the sale of such Offered Certificates, and such
other information as the Underwriter and the Company may deem appropriate in
connection with the offering of such Offered Certificates. The Company promptly
will advise the Underwriter or the Underwriter's 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 Prospectus shall
have been filed with the Commission, (iii) of any proposal or request to amend
or supplement the Registration Statement, the Basic 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 of any notification with respect to the suspension of the qualification
of the Offered Certificates for sale
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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 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 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 Offered
Certificates 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 promptly will
prepare and file with the Commission, at the expense of the Company, 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 will use its best efforts
to cause such amendment to the Registration Statement to be made effective as
soon as possible.
(c) The Company will furnish to the Underwriter and the
Underwriter's 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 an Underwriter may be required by the 1933 Act, as many copies of
any Preliminary Final Prospectus and the Final Prospectus and any amendments and
supplements thereto as the Underwriter may reasonably request.
(d) [Reserved].
(e) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Underwriter may designate and will maintain such qualifications in effect so
long as required for the distribution of the Offered Certificates; provided,
however, that the Company 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.
(f) The Company will pay all costs and expenses in connection
with the transactions herein contemplated, including, but not limited to, the
fees and disbursements of its counsel; the costs and expenses of printing (or
otherwise reproducing) and delivering the Pooling and Servicing Agreement and
the Certificates; the fees, costs and expenses of the Trustee (to the
6
extent permitted under the Pooling and Servicing Agreement, and except to the
extent that another party is obligated to pay such amounts thereunder); the fees
and disbursements of accountants for the Company; the costs and expenses in
connection with the qualification or exemption of the Offered Certificates under
state securities or "blue sky" laws, including filing fees and reasonable fees
and disbursements of counsel in connection therewith, in connection with the
preparation of any blue sky survey and in connection with any determination of
the eligibility of the Offered Certificates for investment by institutional
investors and the preparation of any legal investment survey; the expenses of
printing any such blue sky survey and legal investment survey; the cost and
expenses in connection with the preparation, printing and filing of the
Registration Statement (including exhibits thereto), the Basic Prospectus, the
Preliminary Final Prospectus, if any, and the Final Prospectus, the preparation
and production of this Agreement and the delivery to the Underwriter of such
copies of each Preliminary Final Prospectus, if any, and Final Prospectus as the
Underwriter may reasonably request; and the fees of the Rating Agency (as
defined in Section 6 hereof).
(g) The Company will enter into the Other Agreements on or
prior to the Closing Date.
(h) The Company will file with the Commission within fifteen
days after the issuance of the Offered Certificates a current report on Form 8-K
setting forth specific information concerning the Offered Certificates and the
Mortgage Loans to the extent that such information is not set forth in the
Prospectus. The Company will also file with the Commission a current report on
Form 8-K setting forth all Computational Materials, ABS Term Sheets and
Collateral Term Sheets (as each is defined in Section 12 hereof) provided to the
Company by the Underwriter within the applicable time periods allotted for such
filing pursuant to the No-Action Letters (as defined in Section 13 hereof).
(i) In the event that an Underwriter must prepare corrected
Computational Materials, ABS Term Sheets or Collateral Term Sheets pursuant to
Section 13(d), the Company shall file any corrected Computational Materials, ABS
Term Sheets or Collateral Term Sheets no later than two days following receipt
thereof.
6. Conditions to the Purchase of the Offered Certificates. The
obligations of the Underwriter hereunder to purchase the Offered Certificates
shall be subject to the accuracy of the representations and warranties on the
part of the Company 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 made in any certificates delivered pursuant to the provisions
hereof, to the performance by the Company 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.
(b) The Company shall have delivered to the Underwriter a
certificate of the Company, signed by the President or a vice president of the
Company and dated the Closing
7
Date, to the effect that the signer of such certificate has carefully examined
the Registration Statement, the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true
and correct in all material respects at and as of the Closing Date with the same
effect as if made on the Closing Date, (ii) the Company 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, (iii) 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 knowledge,
threatened, and (iv) nothing has come to the attention of the signer hereof on
behalf of the Company that would lead said signer to believe that the Final
Prospectus contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(c) The Underwriter shall have received from XxXxx Xxxxxx LLP
and counsel for the Company, one or more favorable opinions, dated the Closing
Date, to the effect that:
(i) 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, no proceedings for that purpose have been instituted or
threatened and not terminated; and the Registration Statement, as of its
effective date (other than the financial and statistical information contained
therein, as to which such counsel need express no opinion), complied as to form
in all material respects with the applicable requirements of the 1933 Act and
the rules and regulations thereunder;
(ii) To the best knowledge of such counsel, there
are no material contracts, indentures or other documents of a character required
to be described or referred to in the Registration Statement or the Final
Prospectus or to be filed as exhibits to the Registration Statement other than
those described or referred to therein or filed or incorporated by reference as
exhibits thereto;
(iii) This Agreement has been duly authorized,
executed and delivered by the Company;
(iv) Each of the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreement has been duly authorized,
executed and delivered by the Company and constitutes a legal, valid and binding
agreement of the Company, enforceable against the Company 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;
(v) The Indemnification Agreement has been duly
authorized, executed and delivered by the Company and constitute legal, valid
and binding agreements of the Company, except insofar as the indemnification
provisions therein may be limited by applicable law;
(vi) The direction by the Company to the
Trustee to execute, authenticate and deliver the Offered Certificates has been
duly authorized by the Company, and
8
the Offered Certificates, when executed and authenticated in the manner
contemplated in the Pooling and Servicing Agreement, will be validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing Agreement;
(vii) The Offered Certificates and the Pooling
and Servicing Agreement conform to the descriptions thereof contained in the
Final Prospectus;
(viii) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as amended, and
neither the Company nor the Trust Fund is required to be registered under the
Investment Company Act; and
(ix) Assuming compliance with the Pooling and
Servicing Agreement for federal income tax purposes, each of the Upper Tier
REMIC and the Lower Tier REMIC will qualify as a REMIC within the meaning of
Section 860D of the Internal Revenue Code of 1986, as amended.
(d) The Underwriter shall have received from the Counsel of
the Company or an affiliate of the Company, a favorable opinion, dated the
Closing Date, to the effect that:
(i) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware 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 and the Other Agreements;
(ii) To the best knowledge of such counsel,
there are no actions, proceedings or investigations pending or threatened
against or affecting the Company 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 to carry out the transactions contemplated in this Agreement or the
Other Agreements;
(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 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 Offered Certificates and except any recordation of the
assignments of the Mortgage Loans to the Trustee pursuant to the Pooling and
Servicing Agreement that have not yet been completed; and
(iv) The Company 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, and none of (A) the issuance and sale of the Offered
Certificates, (B) the execution or delivery of or performance under this
Agreement or the Other Agreements, and (C) 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, to the knowledge of such counsel, any indenture or other agreement or
instrument to which the
9
Company 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 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 any of its affiliates.
(e) The Underwriter shall have received from the counsel for
the Master Servicer, a favorable opinion, dated the Closing Date, to the effect
that:
(i) The Master Servicer has been duly
organized and is validly existing as a corporation in good standing under the
laws of its state of incorporation 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 the Pooling
and Servicing Agreement and its Indemnification Agreement;
(ii) To the best knowledge of such counsel,
there are no actions, proceedings or investigations pending or threatened
against or affecting the Master Servicer 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
such Servicer to carry out the transactions contemplated in the Pooling and
Servicing Agreement and its Indemnification 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 Master
Servicer of the transactions contemplated herein, except any recordation of the
assignments of the Mortgage Loans serviced by such Master Servicer to the
Trustee pursuant to the Pooling and Servicing Agreement that have not yet been
completed; and
(iv) The Master Servicer 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 Master Servicer, and neither (A) the execution or delivery of or
performance under the Pooling and Servicing Agreement and its Indemnification
Agreement nor (B) the consummation of any other of the transactions contemplated
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 Master Servicer, or, to the
knowledge of such counsel, any indenture or other agreement or instrument to
which the Master Servicer or any of its affiliates is a party or by which it or
any of them is bound, or any state or federal statute or regulation applicable
to the Master Servicer or any of its affiliates or, to the knowledge of such
counsel, any order of any state or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the Master
Servicer or any of its affiliates.
In addition, such counsel shall state that it
has no reason to believe that the section of the Prospectus Supplement captioned
"The Master Servicer" as of the date of the Prospectus Supplement, and as of the
date that the applicable sections are amended or supplemented, contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements in such applicable sections, in the light of
the
10
circumstances in which they were made, not misleading; it being understood
that such counsel need express no opinion or belief as to the financial and
statistical statements or other financial data contained in such sections.
(f) The Underwriter shall have received from counsel or
counsels to the Seller, one or more favorable opinions, dated the Closing Date,
to the effect that:
(i) The Seller has been duly organized and is
validly existing as a corporation in good standing under the laws of its state
of incorporation 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 the Mortgage Loan Purchase
Agreement, dated as of October 1, 2001, between the Seller and the Company (the
"Mortgage Loan Purchase Agreement");
(ii) To the best knowledge of such counsel,
there are no actions, proceedings or investigations pending or threatened
against or affecting such Seller 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 Seller to carry out the transactions contemplated in the Mortgage Loan
Purchase 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 Seller of
the transactions contemplated herein;
(iv) The Seller 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 Seller, and neither (A) the execution or delivery of or
performance under the Mortgage Loan Purchase Agreement nor (B) the consummation
of any other of the transactions contemplated 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 Seller, or, to the knowledge of such counsel, any indenture or other
agreement or instrument to which the Seller or any of its affiliates is a party
or by which it or any of them is bound, or any state or federal statute or
regulation applicable to the Seller or any of its affiliates or, to the
knowledge of such counsel, any order of any state or federal court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Seller or any of its affiliates; and
(v) The conveyance of the Mortgage Loans from
the Seller to the Depositor pursuant to the Mortgage Loan Purchase Agreement
will be recognized as a "true sale" and certain other related bankruptcy and
insolvency matters.
In addition, such counsel shall state that it
has no reason to believe that the section of the Prospectus Supplement captioned
"The Seller" as of the date of the Prospectus Supplement, and as of the date
that the section is amended or supplemented, if amended or supplemented,
contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements in such section, in the light of the
circumstances in which they were made, not misleading; it being understood that
such counsel need express no opinion
11
or belief as to the financial and statistical statements or other financial data
contained in such section.
(g) The Underwriter shall receive from Deloitte & Touche LLP,
certified public accountants, one or more letters, dated the date of the Final
Prospectus and satisfactory in form and substance to the Underwriter and the
Underwriter's counsel, to the effect that such accountants have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Prospectus Supplement under the caption "The Mortgage Pool" agrees with the
general accounting records of THML or the Company, as applicable.
(h) The Underwriter shall have received from Xxxxx'x Investors
Service, Inc. ("Moody's" or the "Rating Agency") a rating letter assigning to
the Offered Certificates the respective ratings indicated on Schedule I hereto,
none of which ratings shall have been withdrawn.
(i) The Underwriter shall have received from counsel for the
Trustee a favorable opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriter and the Underwriter's counsel, to the effect
that the Pooling and Servicing Agreement has been duly authorized, executed and
delivered by the Trustee and constitutes the 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 the Underwriter and
the Trustee.
(j) The Underwriter shall have received such further
information, certificates, documents and opinions as it may reasonably have
requested not less than three business days prior to the Closing Date.
(k) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
satisfactory in form and substance to the Underwriter and the Underwriter's
counsel, and the Underwriter and such counsel shall have received such
information, certificates and documents as it or they may have reasonably
requested.
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 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 the Underwriter and the Underwriter's counsel, this Agreement
and all the obligations of the Underwriter hereunder may be canceled by the
Underwriter at, or at any time prior to, the Closing Date. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
facsimile transmission confirmed in writing.
7. Indemnification and Contribution. The Company agrees with the
Underwriter that:
12
(a) The Company will indemnify and hold harmless the
Underwriter and each Person who controls the Underwriter within the meaning of
either the 1933 Act or the 1934 Act against any and all losses, claims, damages
or liabilities, joint or several, to which the Underwriter may become subject
under the 1933 Act, the 1934 Act, or other federal or state law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (x)
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or in any amendment thereof, or the omission or
alleged omission to state in the Registration Statement or any amendment thereof
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (y) any untrue statement or alleged untrue
statement of a material fact contained in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or the omission or alleged omission to
state in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus or in any amendment or supplement thereto a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, and agrees to reimburse
the Seller such indemnified party for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with (A) the information contained in the Prospectus
Supplement under the heading "The Master Servicer" or information contained in
the Prospectus Supplement under the heading "The Seller" or arise out of or are
based upon information provided by the Master Servicer or the Seller to the
Underwriter specifically for use in connection with the Investor Materials (as
defined in Section 12 hereof) or (B) written information furnished to the
Company as herein stated by the Underwriter specifically for use in connection
with the preparation thereof and in the Investor Materials other than a
misstatement or omission arising from a misstatement or omission in the
information provided by the Company concerning the assets of the Trust (such
information, the "Company Provided Information"), and (ii) such indemnity with
respect to the Basic Prospectus or any Preliminary Final Prospectus shall not
inure to the Underwriter or any Person controlling the Underwriter from which
the Person asserting any such loss, claim, damage or liability purchased the
Offered Certificates that are the subject thereof, if such Person did not
receive a copy of the Final Prospectus at or prior to the confirmation of the
sale of such Offered Certificates to such Person in any case where such delivery
is required by the 1933 Act and the untrue statement or omission of a material
fact contained in the Basic Prospectus or in any such Preliminary Final
Prospectus was corrected in the Final Prospectus. This indemnity will be in
addition to any liability that the Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each Person, if any, who controls the Company within the meaning
of either the 1933 Act or the 1934 Act, to the same extent as the foregoing
indemnity from the Company to the Underwriter, but only with reference to
written information furnished to the Company as herein stated by the Underwriter
specifically for use in connection with the preparation of the documents
referred to in the foregoing indemnity or in the Investor Materials except to
the extent that such misstatement or omission arises from a misstatement or
omission in the Company Provided Information. This indemnity will be in addition
to any liability that the Underwriter may otherwise have. The
13
Company and the Underwriter each acknowledge that the first sentence in the last
paragraph on the cover page of the Prospectus Supplement and the first
paragraph, and the first sentence of the second paragraph under the heading
"METHOD OF DISTRIBUTION" in the Prospectus Supplement, constitute the only
information furnished in writing by the Underwriter for inclusion in the
documents referred to in the foregoing indemnity, and the Underwriter confirms
that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party
otherwise than under this Section 7. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to elect separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Underwriter in the case of paragraph (a) of
this Section 7), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall only be in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to an indemnified party under this Section
7, then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of the aggregate option due losses,
claims, damages and liabilities referred to in paragraph (a) or (b) above, in
such proportion so that the Underwriter is responsible for 0.0625% of the
aggregate proceeds to the Company from the sale of the Offered Certificates and
(ii) the Company is responsible for the balance; provided, however, that no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any Person that
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, a Person, if
14
any, that controls the Underwriter within the meaning of either the 1933 Act or
the 1934 Act shall have the same rights to contribution as does the Underwriter
and each Person, if any, that controls the Company within the meaning of either
the 1933 Act or the 1934 Act, each officer of the Company who shall have signed
the Registration Statement and each director of the Company shall have the same
rights to contribution as the Company. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
8. Termination. (a) This Agreement shall be subject to termination in
the Underwriter's absolute discretion, by notice given to the Company prior to
delivery of and payment for the Offered Certificates, 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 the Underwriter's reasonable judgment,
impracticable to market the Offered Certificates on the terms specified herein.
(b) If the sale of the Offered Certificates shall not be
consummated because any condition to the obligations of the Underwriter set
forth in Section 6 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of the default of the
Underwriter, the Company shall reimburse the Underwriter for the reasonable fees
and expenses of the Underwriter's counsel and for such other out-of-pocket
expenses as shall have been incurred by the Underwriter in connection with this
Agreement and the proposed purchase of the Offered Certificates, and upon demand
the Company shall pay the full amount thereof to the Underwriter.
(c) This Agreement will survive delivery of and payment for
the Offered Certificates. The provisions of Section 7 and this Section 8(c)
shall survive the termination or cancellation of this Agreement.
9. [Reserved.]
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or transmitted by facsimile and confirmed to Greenwich Capital
Markets, Inc. at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, attention:
Legal Department; if sent to the Company, will be mailed, delivered or
transmitted by facsimile and confirmed to it at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, attention: Legal 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
15
Persons referred to in Section 7, 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. Investor Information. The Underwriter may prepare and
provide to prospective investors certain Computational Materials, ABS Term
Sheets or Collateral Term Sheets (collectively, the "Investor Materials") in
connection with its offering of the Offered Certificates, subject to the
following conditions:
(a) The Underwriter shall comply with the requirements of the
No-Action Letter of May 20, 1994 issued by the Commission to Xxxxxx,
Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated
and Xxxxxx Structured Asset Corporation, as made applicable to other
issuers and underwriters by the Commission in response to the request
of the Public Securities Association dated May 24, 1994 (collectively,
the "Xxxxxx/PSA Letter"), and the requirements of the No-Action Letter
of February 17, 1995 issued by the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Xxxxxx/PSA Letter,
the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" shall have
the meaning given such term in the No-Action Letters, but shall include
only those Computational Materials that have been prepared or delivered
to prospective investors by the Underwriter. For purposes hereof, "ABS
Term Sheets" and "Collateral Term Sheets" shall have the meanings given
such terms in the PSA Letter but shall include only those ABS Term
Sheets or Collateral Term Sheets that have been prepared or delivered
to prospective investors by the Underwriter.
(c) The Underwriter shall provide to the Company any
Computational Materials, ABS Term Sheets or Collateral Term Sheets
which are provided to investors no later than the date preceding the
date such Computational Materials, ABS Term Sheets or Collateral Term
Sheets are required to be filed pursuant to the applicable No-Action
Letters. The Underwriter may provide copies of the foregoing in a
consolidated or aggregated form including all information required to
be filed.
(d) In the event that the Company or the Underwriter discovers
an error in the Computational Materials, ABS Term Sheets or Collateral
Term Sheets, the Underwriter shall prepare corrected Computational
Materials, ABS Term Sheets or Collateral Term Sheets and deliver it to
the Company for filing pursuant to Section 5(h).
16
EXECUTION
If the foregoing is in accordance with the Underwriter's understanding
of our agreement, please sign and return to us a counterpart hereof, whereupon
this letter and the Underwriter's acceptance shall represent a binding agreement
between the Company and the Underwriter.
Very truly yours,
GREENWICH CAPITAL ACCEPTANCE, INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
GREENWICH CAPITAL MARKETS, INC.
By: /s/ Xxxxxx X. Xxxxx XXX
--------------------------------
Name: Xxxxxx X. Xxxxx XXX
Title: Managing Director
SCHEDULE I
Underwriting Agreement dated October 29, 2001.
As used in this Agreement, the term "Registration Statement" refers to the
Registration Statement on Form S-3 (File No. 333-60904) filed on May 14, 2001 as
amended, and declared effective by the Commission on May 23, 2001.
Closing Date: November 1, 2001.
Approximate Preliminary Pool Balance: $511,896,371.60.
Cut-Off Date: October 1, 2001.
Title, Purchase Price and Description of Offered Certificates:
Greenwich Capital Acceptance, Inc., Xxxxxxxxx Mortgage Securities Trust 2001-1,
Mortgage Loan Pass-Through Certificates, Series 2001-1, Classes designated
below:1
ORIGINAL CLASS
CERTIFICATE
CLASS PRINCIPAL BALANCE PASS-THROUGH RATE MOODY'S
---------------------- -------------------- ---------------------------------------- -------------------
Class A $495,259,000.00 Fixed Pass-Through Rate Aaa
Class X NA Variable Pass-Through Rate Aaa
Class A-R $100.00 Weighted Average Pass-Through Rate Aaa
Class B-1 $5,118,000.00 Weighted Average Pass-Through Rate Aa2
Class B-2 $4,095,000.00 Weighted Average Pass-Through Rate A2
Class B-3 $3,327,000.00 Weighted Average Pass-Through Rate Baa2
----------------------
1 Other Certificates issued pursuant to the Pooling and Servicing
Agreement: Xxxxxxxxx Mortgage Securities Trust 2001-1, Mortgage Loan
Pass-Through Certificates, Series 2001-1, Class B-4, Class B-5, Class
B-6 and Class LTA-R Certificates.
18
Original Class Certificate
Principal Balance of
Underwriter Class A Certificates Purchase Price
----------------------------------------------------- -------------------------------- ----------------------------
Greenwich Capital Markets, Inc................. $495,259,000.00 98.878174%
-------------------------------- ----------------------------
Total............... $495,259,000.00 98.878174%
Original Class Certificate
Principal Balance of
Underwriter Class A-R Certificates Purchase Price
----------------------------------------------------- -------------------------------- ----------------------------
Greenwich Capital Markets, Inc................. $100.00 99.878174%
-------------------------------- ----------------------------
Total............... $100.00 99.878174%
Original Class Certificate
Notional Balance of
Underwriter Class X Certificates Purchase Price
----------------------------------------------------- -------------------------------- ----------------------------
Greenwich Capital Markets, Inc. ............... $495,259,000.00* 1.968750%
-------------------------------- ----------------------------
Total............... $495,259,000.00* 1.968750%
Original Class Certificate
Principal Balance of
Underwriter Class B-1 Certificates Purchase Price
----------------------------------------------------- -------------------------------- ----------------------------
Greenwich Capital Markets, Inc................. $5,118,000.00 101.878174%
-------------------------------- ----------------------------
Total............... $5,118,000.00 101.878174%
Original Class Certificate
Principal Balance of
Underwriter Class B-2 Certificates Purchase Price
----------------------------------------------------- -------------------------------- ----------------------------
Greenwich Capital Markets, Inc................. $4,095,000.00 101.378174%
-------------------------------- ----------------------------
Total............... $4,095,000.00 101.378174%
Original Class Certificate
Principal Balance of
Underwriter Class B-3 Certificates Purchase Price
----------------------------------------------------- -------------------------------- ----------------------------
Greenwich Capital Markets, Inc................. $3,327,000.00 99.878174%
-------------------------------- ----------------------------
Total............... $3,327,000.00 99.878174%
* Certificate Notional Balance.
