EXECUTION
GREENWICH CAPITAL ACCEPTANCE, INC.
Xxxxxxxxx Mortgage Securities Trust 2001-2
Mortgage Loan Pass-Through Certificates, Series 2001-2
Class A, Class A-R, Class B-1, Class B-2 and Class B-3
UNDERWRITING AGREEMENT
December 19, 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 2001-2 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 December 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 Delaware 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 December 19, 2001 (collectively, the "Indemnification
Agreement"), will be entered into among the Depositor, the Underwriter, the
Seller, the Master Servicer and Xxxxxxxxx Mortgage, Inc.
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, the
Master Servicer or the Seller 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, the Mortgage Loan Purchase Agreement, dated as of December 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
Other Agreements, 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 and the Indemnification 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 or default would be material to the
Company. None of (i) the issuance and sale of the Offered
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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 or cause to be paid 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
6
expenses of the Trustee (to the 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
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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 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 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 this Agreement and 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 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 this
Agreement and the Other Agreements 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. (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:
(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
12
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 in the first and second sentences under the heading "Risk Factors --
Mortgage loans with interest only payments," in the first and second sentences
of the first bullet point and the first and second sentences of the second
bullet point under the heading "Risk Factors -- Certain features of the mortgage
loans may adversely affect your interest in the certificates," the first and
second sentences under the heading "Risk Factors -- Conversion of the mortgage
loans may reduce the yields on the certificates," the first sentence under the
heading "Risk Factors -- Geographic concentration of the mortgage loans may
adversely affect your certificates," and under the headings "The Mortgage Loans"
and "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
13
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 Company and the Underwriter each acknowledge that the first
sentence in the last paragraph on the cover page of the Prospectus Supplement
and 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
14
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 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
15
transmitted by xxxxxxxxx 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 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, Xxxxxxx
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.
16
(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).
17
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/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
SCHEDULE I
Underwriting Agreement dated December 19, 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: December 21, 2001.
Approximate Preliminary Pool Balance: $431,103,773.91.
Cut-Off Date: December 1, 2001.
Title, Purchase Price and Description of Offered Certificates:
Greenwich Capital Acceptance, Inc., Xxxxxxxxx Mortgage Securities Trust
2001-2, Mortgage Loan Pass-Through Certificates, Series 2001-2, Classes
designated below:(1)
ORIGINAL CLASS
CERTIFICATE XXXXX'X
CLASS PRINCIPAL BALANCE PASS-THROUGH RATE RATING
----- ----------------- ----------------- ------
Class A $417,739,000.00 Weighted Average Pass-Through Rate Aaa
Class A-R $100.00 Weighted Average Pass-Through Rate Aaa
Class B-1 $4,095,000.00 Weighted Average Pass-Through Rate Aa2
Class B-2 $3,233,000.00 Weighted Average Pass-Through Rate A2
Class B-3 $2,586,000.00 Weighted Average Pass-Through Rate Baa2
---------
(1) Other Certificates issued pursuant to the Pooling and Servicing Agreement:
Xxxxxxxxx Mortgage Securities Trust 2001-2, Mortgage Loan Pass-Through
Certificates, Series 2001-2, Class B-4, Class B-5, Class B-6 and Class LTA-R
Certificates.
Original Class
Certificate Principal
Balance of Purchase Price
Underwriter Class A Certificates
---------------------------------------- ----------------------- ------------------------
Greenwich Capital Markets, Inc......... $417,739,000.00 99.9434884%
-----------------------
Total....... $417,739,000.00
===============
Original Class
Certificate Principal
Balance of Purchase Price
Underwriter Class A-R Certificates
---------------------------------------- ----------------------- ------------------------
Greenwich Capital Markets, Inc......... $100.00 99.8809884%
-----------------------
Total....... $100.00
=======
Original Class
Certificate Principal
Balance of Purchase Price
Underwriter Class B-1 Certificates
---------------------------------------- ----------------------- ------------------------
Greenwich Capital Markets, Inc......... $4,095,000.00 96.8809884%
-----------------------
Total....... $4,095,000.00
=============
Original Class
Certificate Principal
Balance of Purchase Price
Underwriter Class B-2 Certificates
---------------------------------------- ----------------------- ------------------------
Greenwich Capital Markets, Inc......... $3,233,000.00 96.3184884%
-----------------------
Total....... $3,233,000.00
=============
Original Class
Certificate Principal
Balance of Purchase Price
Underwriter Class B-3 Certificates
---------------------------------------- ----------------------- ------------------------
Greenwich Capital Markets, Inc......... $2,586,000.00 95.4434884%
-----------------------
Total....... $2,586,000.00
=============
