GREENPOINT MORTGAGE FUNDING, INC.
GREENPOINT MORTGAGE SECURITIES INC.
HOME EQUITY LOAN VARIABLE RATE ASSET-BACKED NOTES
Series 200_-_
Class A-1 Notes and Class A-2 Notes
UNDERWRITING AGREEMENT
New York, New York
__________, 200_
[Underwriter]
[Address]
Dear Sirs:
GreenPoint Mortgage Securities Inc., a Delaware corporation (the
"Sponsor"), proposes to cause GreenPoint Home Equity Loan Trust 200_-_ (the
"Trust") to sell to you its Home Equity Loan Asset-Backed Notes in the series
and class, in the respective original principal amounts and with the
designations set forth in Schedule I hereto (the "Designated Notes"). The
Designated Notes, will be issued pursuant to an Indenture (the "Indenture"),
dated as of __________, 200_, between the Trust and [Indenture Trustee], as
Trustee (the "Trustee"). The Trust will be formed pursuant to a Trust Agreement
(the "Trust Agreement") to be dated as of __________, 200_ and entered into
between the Sponsor and [Owner Trustee], as Owner Trustee. The Designated Notes
and a residual certificate issued to the Sponsor (the "Certificate") will be
secured by certain Mortgage Loans to be transferred by the Sponsor to the Trust
pursuant to a Sale and Servicing agreement (the "Sale and Servicing Agreement")
dated __________, 200_ among the Sponsor, the Trust, GreenPoint Mortgage
Funding, Inc. (the "Company") and the Trustee and pledged by the Trust to the
Trustee under the Indenture. The Designated Notes are described more fully in
Schedule I hereto and in a Prospectus Supplement furnished to you by the
Company.
Capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned to them in Annex I to the Indenture.
1. Representations and Warranties of the Company and the Sponsor. Each of
the Company and the Sponsor represents and warrants to, and agrees with, you
that:
(a) A registration statement on Form S-3 has been filed with the
Securities and Exchange Commission (the "Commission") (the file number of
which is set forth in Schedule I hereto) for the registration of
Asset-Backed Securities, issuable in series under the Securities Act of
1933, as amended (the "1933 Act"), which registration statement was
declared effective on the date set forth in Schedule I hereto and copies
of which have heretofore been delivered to you. The Sponsor meets the
requirements for use of Form S-3 under the 1933 Act, and such registration
statement, as amended at the date hereof, meets the requirements set forth
in Rule 415(a)(1)(x) under the 1933 Act and complies in all other material
respects with the 1933 Act and the rules and regulations thereunder (the
"Rules and Regulations"). The Sponsor proposes to file with the
Commission, with your consent, pursuant to Rule 424 under the 1933 Act, a
supplement to the form of prospectus included in such registration
statement relating to the Designated Notes and the plan of distribution
thereof, and has previously advised you of all further information
(financial and other) with respect to the Designated Notes and the
Mortgage Pool to be set forth therein. Such registration statement,
including all exhibits thereto, as amended at the date hereof, is referred
to herein as the "Registration Statement"; such prospectus in the form in
which it appears in the Registration Statement is referred to herein as
the "Base Prospectus" (except that if the prospectus filed by the Sponsor
pursuant to Rule 424(b) under the 1933 Act differs from the prospectus on
file at the time the Registration Statement became effective, the term
"Base Prospectus" shall refer to such Rule 424(b) prospectus from and
after the time it is mailed to the Commission for filing); such form of
prospectus supplemented by the prospectus supplement (the "Prospectus
Supplement") relating to the Designated Notes, in the form in which it
shall be first filed with the Commission pursuant to Rule 424(b) under the
1933 Act (including the Base Prospectus as so supplemented), is referred
to herein as the "Final Prospectus".
(b) As of the date hereof, as of the date on which the Final
Prospectus is first filed pursuant to Rule 424 under the 1933 Act, as of
the date on which, prior to the Closing Date (as hereinafter defined), any
amendment to the Registration Statement becomes effective, as of the date
on which any supplement to the Final Prospectus is filed with the
Commission, and at the Closing Date, (i) the Registration Statement, as
amended as of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, complies and will comply as to form in
all material respects with the applicable requirements of the 1933 Act and
the Rules and Regulations thereunder, (ii) the Registration Statement, as
amended as of any such time, does not contain and will not contain any
untrue statement of a material fact and does not omit and will not omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, does not
contain and will not contain any untrue statement of a material fact and
does not omit and will not omit to state any
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material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Sponsor makes no
representations or warranties as to statements contained in or omitted
from the Registration Statement or the Final Prospectus or any amendment
or supplement thereto made in reliance upon and in conformity with
information furnished in writing to the Company by you specifically for
use in the Registration Statement and the Final Prospectus.
(c) The documents incorporated by reference in the Final Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the 1933
Act or the Securities Exchange Act of 1934 (the "1934 Act"), as
applicable, and the rules and regulations of the Commission thereunder,
and none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Final Prospectus,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the 1933 Act or the 1934 Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(d) Since the respective dates as of which information is given in
the Final Prospectus, there has not been any material adverse change in
the general affairs, management, financial condition, or results of
operations of the Company, otherwise than as set forth or contemplated in
the Final Prospectus as supplemented or amended as of Closing Date.
(e) To the extent that the Underwriter (i) has provided to the
Company or the Sponsor Collateral Term Sheets (as hereinafter defined)
that such Underwriter has provided to a prospective investor, the Company
or the Sponsor has filed such Collateral Term Sheets as an exhibit to a
report on Form 8-K within two business days of its receipt thereof, or
(ii) has provided to the Company or the Sponsor Structural Term Sheets or
Computational Materials (each as defined below) that such Underwriter has
provided to a prospective investor, the Company or the Sponsor will file
or cause to be filed with the Commission a report on Form 8-K containing
such Structural Term Sheet and Computational Materials, as soon as
reasonably practicable after the date of this Agreement, but in any event,
not later than the date on which the Final Prospectus is filed with the
Commission pursuant to Rule 424 of the Rules and Regulations.
(f) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of New York,
is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its
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business requires such qualification, has full power and authority
(corporate and other) necessary to own or hold its properties and to
conduct its business as now conducted by it and to enter into and perform
its obligations under this Agreement, the Sale and Servicing Agreement,
the Mortgage Loan Purchase Agreement, dated as of __________, 200_ between
the Company and the Sponsor (the "Purchase Agreement") and the Insurance
and Indemnity Agreement dated as of __________, 200_ (the "Insurance and
Indemnity Agreement") between the Company, [Insurer] ("Insurer"), the
Sponsor, the Trustee and the Trust.
(g) The Sponsor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, has
full power and authority (corporate or other) necessary to own and hold
its properties and to conduct its business as now conducted by it and to
enter into and perform its obligations under this Agreement, the Trust
Agreement, the Sale and Servicing Agreement, the Purchase Agreement and
the Insurance and Indemnity Agreement.
(h) As of the date hereof, as of the date on which the Final
Prospectus is first filed pursuant to Rule 424 under the 1933 Act, as of
the date on which, prior to the Closing Date, any amendment to the
Registration Statement becomes effective, as of the date on which any
supplement to the Final Prospectus is filed with the Commission, and as of
the Closing Date, there has not and will not have been (i) any request by
the Commission for any further amendment to the Registration Statement or
the Final Prospectus or for any additional information, (ii) any issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threat of any proceeding for
that purpose or (iii) any notification with respect to the suspension of
the qualification of the Designated Notes for sale in any jurisdiction or
any initiation or threat of any proceeding for such purpose.
(i) PricewaterhouseCoopers LLP are independent public accountants
with respect to the Company as required by the 1933 Act and the Rules and
Regulations.
(j) This Agreement has been duly authorized, executed and delivered
by the Company and the Sponsor and constitutes a legal, valid, binding and
enforceable agreement of each of the Company and the Sponsor, subject as
to enforceability, to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
(ii) general principles of equity regardless of whether enforcement is
sought in a proceeding in equity or at law.
(k) The Sale and Servicing Agreement, the Insurance and Indemnity
Agreement and the Purchase Agreement when executed and delivered as
contemplated hereby and thereby, will have been duly authorized, executed
and delivered by each of the Company and the Sponsor, and when so executed
and
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delivered, will constitute legal, valid, binding and enforceable
agreements of each of the Company and the Sponsor, subject, as to
enforceability, to (i) bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and (ii)
general principles of equity regardless of whether enforcement is sought
in a proceeding in equity or at law.
(l) The Trust Agreement when executed and delivered as contemplated
hereby and thereby will have been duly authorized, executed and delivered
by the Sponsor, and when so executed and delivered, will constitute a
legal, valid, binding and enforceable agreement of the Sponsor, subject,
as to enforceability, to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
(ii) general principles of equity regardless of whether enforcement is
sought in a proceeding in equity or at law.
(m) As of the Closing Date, the Designated Notes and the Indenture
will conform in all material respects to the respective descriptions
thereof contained in the Final Prospectus. As of the Closing Date, the
Designated Notes will be duly and validly authorized and, when duly and
validly executed, authenticated and delivered in accordance with the
Indenture and delivered to you against payment therefor as provided
herein, will be duly and validly issued and outstanding and entitled to
the benefits of the Indenture. The Designated Notes will not be "mortgage
related securities," as such term is defined in the singular in the 1934
Act.
(n) The Indenture, when executed and delivered, will have been duly
qualified under the Trust Indenture Act of 1939.
(o) As of the Closing Date, each of the Mortgage Loans will meet the
criteria for selection described in the Final Prospectus, and on the
Closing Date the representations and warranties of the Company and the
Sponsor with respect to the Mortgage Loans contained in the Purchase
Agreement and the Sale and Servicing Agreement will be true and correct.
(p) Each of the Company and the Sponsor is not in violation of its
certificate of incorporation or by-laws or in default under any agreement,
indenture or instrument the effect of which violation or default would be
material to the Company or the Sponsor. Neither the issuance and sale of
the Designated Notes nor the execution and delivery by the Company and the
Sponsor of this Agreement, the Sale and Servicing Agreement, the Purchase
Agreement or the Insurance and Indemnity Agreement, nor the consummation
by the Company and the Sponsor of any of the transactions herein or
therein contemplated, nor compliance by the Company and the Sponsor with
the provisions hereof or thereof, does or will conflict with or result in
a breach of any term or provision of the certificate of incorporation or
by-laws of the Company or the Sponsor or conflict with, result in a
breach, violation or acceleration of, or constitute a default
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under, the terms of any indenture or other agreement or instrument to
which the Company or the Sponsor is a party or by which it is bound, or
any statute, order or regulation applicable to the Company or the Sponsor
of any court, regulatory body, administrative agency or governmental body
having jurisdiction over the Company or the Sponsor. Each of the Company
and the Sponsor is not a party to, bound by or in breach or violation of
any indenture or other agreement or instrument, or subject to or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction over
it that materially and adversely affects, or may in the future materially
and adversely affect, (i) the ability of the Company or the Sponsor to
perform its obligations under this Agreement, the Purchase Agreement, the
Sale and Servicing Agreement or the Insurance and Indemnity Agreement or
(ii) the business, operations, financial conditions, properties or assets
of the Company.
(q) The execution and delivery by the Sponsor of the Trust Agreement
does not and will not conflict with or result in a breach of any term or
provision of the certificate of incorporation or bylaws of the Sponsor or
conflict with, result in a breach, violation or acceleration of, or
constitute a default under, the terms of any indenture or other agreement
or instrument to which the Sponsor is bound or is a party or any statute,
order or regulation applicable to the Sponsor.
(r) There are no actions or proceedings against, or investigations
of, the Company or the Sponsor pending, or, to the knowledge of the
Company or the Sponsor, threatened, before any court, arbitrator,
administrative agency or other tribunal (i) asserting the invalidity of
this Agreement, the Trust Agreement, the Sale and Servicing Agreement, the
Purchase Agreement, the Insurance and Indemnity Agreement, the Trust
Agreement or the Designated Notes (ii) seeking to prevent the issuance of
the Designated Notes or the consummation of any of the transactions
contemplated by this Agreement, the Trust Agreement, the Purchase
Agreement, the Sale and Servicing Agreement or the Insurance and Indemnity
Agreement, (iii) that are reasonably likely to be adversely determined and
that might materially and adversely affect the performance by each of the
Company and the Sponsor of its obligations under, or the validity or
enforceability of, this Agreement, the Indenture, the Sale and Servicing
Agreement, the Insurance and Indemnity Agreement, the Trust Agreement or
the Designated Notes or (iv) seeking to affect adversely the federal
income tax attributes of the Designated Notes as described in the Final
Prospectus.
(s) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States is required for the issuance of the Designated Notes and the
sale of the Designated Notes to you, or the consummation by the Company or
the Sponsor of the other transactions contemplated by this Agreement, the
Indenture, the Sale and Servicing Agreement, the Purchase Agreement, the
Trust Agreement and the Insurance and Indemnity Agreement, except such
consents, approvals, authorizations, registrations or qualifications as
may be required under State
6
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Notes by you or as have been obtained.
(t) Each of the Company and the Sponsor possesses all material
licenses, certificates, authorities or permits issued by the appropriate
State, Federal or foreign regulatory agencies or bodies necessary to
conduct the business now conducted by it and as described in the Final
Prospectus, and neither the Company nor the Sponsor has received notice of
any proceedings relating to the revocation or modification of any such
license, certificates, authority or permit which if decided adversely to
the Company or the Sponsor would, singly or in the aggregate, materially
and adversely affect the conduct of its business, operations or financial
condition.
(u) Any taxes, fees and other governmental charges in connection
with the execution and delivery of this Agreement, the Purchase Agreement,
the Trust Agreement, the Sale and Servicing Agreement and the Insurance
and Indemnity Agreement or the execution, delivery and sale of the
Designated Notes have been or will be paid on or prior to the Closing
Date.
(v) Immediately prior to the assignment of the Mortgage Loans to the
Trust as contemplated by the Sale and Servicing Agreement, the Company (i)
had good title to, and was the sole owner of, each Mortgage Loan free and
clear of any pledge, mortgage, lien, security interest or other
encumbrance (collectively, "Liens"), (ii) had not assigned to any person
any of its right, title or interest in such Mortgage Loans and (iii) will
have the power and authority to sell such Mortgage Loans to the Sponsor
pursuant to the Purchase Agreement and upon the execution and delivery of
the Sale and Servicing Agreement by the Sponsor, the Trust will have
acquired all of the Sponsor's and the Company's right, title and interest
in and to the Mortgage Loans.
(w) At the time of execution and delivery of the Indenture, (1) the
Trust will own the Mortgage Loans being pledged to the Trustee pursuant
thereto, free and clear of any Liens, except to the extent permitted in
the Indenture, and will not have assigned to any person other than the
Trustee any of its right, title or interest in the Mortgage Loans, (2) the
Trust will have the power and authority to pledge the Trust Estate to the
Trustee and to transfer the Designated Notes and will have duly authorized
such action by all necessary corporate action, (3) upon execution and
delivery by the Trust to the Trustee of the Indenture, and delivery of the
Designated Notes, the Trustee will have a valid, perfected security
interest of first priority in the Trust Estate free of Liens other than
Liens permitted by the Indenture and (4) upon payment and delivery of the
Designated Notes to you, you will acquire ownership of the Designated
Notes, free of Liens other than Liens permitted by the Indenture or
created or granted by you.
(x) At the Closing Date, the execution and delivery of the Indenture
by the Trust will have been duly authorized by the Sponsor and upon due
execution and delivery thereof by the parties thereto, the Indenture will
constitute a legal,
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valid and binding agreement enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, reorganization,
insolvency or other similar laws affecting creditors' rights generally and
by general principles of equity.
(y) At the Closing Date, the Trust will have assigned, pledged and
delivered to the Trustee under the Indenture all of its right, title and
interest in and to, among other things, (i) the Mortgage Loans, and (ii)
cash and/or other assets, if any, in the amount set forth in the Indenture
(the "Initial Collateral").
(z) The Trust has corporate power and authority to assign, pledge
and deliver the Initial Collateral to the Trustee under the Indenture, and
at the Closing Date will have duly authorized such assignment, pledge and
delivery to the Trustee by all necessary corporate actions.
(aa) Neither the Company, the Sponsor nor the Trust is, and neither
the issuance and sale of the Designated Notes nor the activities of the
Trust pursuant to the Indenture will cause the Company, the Sponsor or the
Trust to be, an "investment company" or under the control of an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act").
(bb) At the Closing Date, each of the representations and warranties
of the Company and the Sponsor set forth in the Purchase Agreement and in
the Sale and Servicing Agreement will be true and correct in all material
respects.
(cc) At the Closing Date, the Designated Notes shall have been rated
in the highest rating category by at least two nationally recognized
rating agencies.
2. Purchase and Sale. The commitment of the Underwriter to purchase the
Designated Notes pursuant to this Agreement shall be deemed to have been made on
the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein contained and shall be subject to the
terms and conditions herein set forth. The Sponsor agrees to cause the Trust to
sell the Designated Notes to you, and you agree to purchase the Designated Notes
from the Trust, for the purchase price previously agreed between us, before
deducting expenses payable by the Company.
3. Delivery and Payment. Delivery of and payment for the Designated Notes
shall be made at the office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP prior to 12:00 p.m., Eastern
Standard Time, on the date specified in Schedule I hereto (or such later date
not later than seven business days after such specified date as you shall
designate), which date and time may be changed by agreement between you and the
Sponsor or as provided herein (such date and time of delivery and payment for
the Designated Notes being herein called the "Closing Date"). Delivery of the
Designated Notes shall be made to you against payment by you of the purchase
price therefor in immediately available funds wired to such bank as may be
designated by the Sponsor, or such other manner of payment as may be agreed upon
by the Sponsor and you. The Designated Notes to be so delivered shall be in
8
definitive fully registered form, unless otherwise agreed, in such denominations
and registered in such names as you may have requested in writing not less than
two full business days in advance of the Closing Date.
The Sponsor agrees to have the Designated Notes available for
inspection, checking and packaging by you at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
LLP, not later than 4:00 p.m. on the business day prior to the Closing Date.
4. Offering of the Designated Notes. It is understood that you propose to
offer the Designated Notes for sale to the public as set forth in the Final
Prospectus.
5. Covenants of the Company and the Sponsor. Each of the Company and the
Sponsor covenants and agrees with you that:
(a) The Company and the Sponsor will prepare a supplement to the
Base Prospectus setting forth the amount of Designated Notes covered
thereby and the terms thereof not otherwise specified in the Base
Prospectus, the expected proceeds to the Company from the sale of such
Designated Notes, and such other information as you and the Company may
deem appropriate in connection with the offering of such Designated Notes.
The Company and the Sponsor will file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the 1934 Act subsequent to the date of the Final Prospectus. The
Company and the Sponsor promptly will advise you or your counsel (i) when
the Final Prospectus shall have been filed or transmitted to the
Commission for filing pursuant to Rule 424, (ii) when any amendment to the
Registration Statement shall have become effective or any further
supplement to the Base Prospectus shall have been filed with the
Commission, (iii) of any proposal or request to amend or supplement the
Registration Statement, the Base Prospectus or the Final Prospectus or any
request by the Commission for any additional information, (iv) when notice
is received from the Commission that any post-effective amendment to the
Registration Statement has become or will become effective, (v) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or post-effective amendment thereto or the
institution or threatening of any proceeding for that purpose, (vi) of the
receipt by the Company or the Sponsor of any notification with respect to
the suspension of the qualification of the Designated Notes for sale in
any jurisdiction or the institution or threatening of any proceeding for
that purpose, and (vii) of the occurrence of any event that would cause
the Registration Statement, as then in effect, to contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or that would cause the Final Prospectus, as then in effect,
to contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading. The Company and the Sponsor will use its best
efforts to prevent the issuance of any such stop order or suspension and,
if issued, to obtain as soon as possible the
9
withdrawal thereof. The Company and the Sponsor will cause the Final
Prospectus to be transmitted to the Commission for filing pursuant to Rule
424 under the 1933 Act or will cause the Final Prospectus to be filed with
the Commission pursuant to said Rule 424.
(b) If, at any time when a prospectus relating to the Designated
Notes is required to be delivered under the 1933 Act, any event occurs as
a result of which the Final Prospectus, as then amended or supplemented,
would contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend or supplement
the Final Prospectus to comply with the 1933 Act or the rules and
regulations thereunder, the Company and the Sponsor promptly will prepare
and file with the Commission, at the expense of the Company or the
Sponsor, as the case may be, subject to paragraph (a) of this Section 5,
an amendment or supplement that will correct such statement or omission or
an amendment that will effect such compliance and, if such amendment or
supplement is required to be contained in a post-effective amendment to
the Registration Statement, the Company and the Sponsor will use their
best efforts to cause such amendment to the Registration Statement to be
made effective as soon as possible.
(c) The Company and the Sponsor will furnish to you and your
counsel, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date, and so long as delivery of a
prospectus by you may be required by the 1933 Act, as many copies of any
Final Prospectus and any amendments and supplements thereto as you may
reasonably request.
(d) The Company and the Sponsor will file promptly with the
Commission any amendment to the Registration Statement or the Base
Prospectus or any supplement to the Base Prospectus that may, in your
judgment or the judgment of the Company or the Sponsor, be required by the
1933 Act or requested by the Commission.
(e) The Company and the Sponsor will make generally available to
holders of the Designated Notes as soon as practicable, but in any event
not later than 90 days after the close of the period covered thereby, a
statement of earnings of the Trust (which need not be audited) complying
with Section 11(a) of the 1933 Act and the Rules and Regulations
(including, at the option of the Company and the Sponsor, Rule 158) and
covering a period of at least twelve consecutive months beginning not
later than the first day of the first fiscal quarter following the Closing
Date.
(f) Each of the Company and the Sponsor agrees that, so long as the
Designated Notes shall be outstanding, it will deliver to you the annual
statement as to compliance delivered to the Trustee pursuant to Section
3.09 of the Sale and
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Servicing Agreement and the annual statement of a firm of independent
public accountants delivered to the Trustee pursuant to Section 3.10 of
the Sale and Servicing Agreement, as soon as such statements are furnished
to the Company or the Sponsor.
(g) The Company and the Sponsor will furnish such information,
execute such instruments and use their best efforts to qualify the
Designated Notes for sale under the laws of such jurisdictions as you may
designate and will maintain such qualifications in effect so long as
required for the distribution of the Designated Notes; provided, however,
that the Company and the Sponsor shall not be required to qualify to do
business in any jurisdiction where it is not now qualified or to take any
action that would subject it to general or unlimited service of process in
any jurisdiction where it is not now subject to such service of process.
Subject to the foregoing proviso, the Company and the Sponsor will file or
cause the filing of such statements and reports as may be required by the
laws of each jurisdiction in which the Designated Notes have been so
qualified.
(h) The Company and the Sponsor will enter into this Agreement, the
Sale and Servicing Agreement, the Purchase Agreement and the Insurance and
Indemnity Agreement on or prior to the Closing Date.
(i) The Sponsor will enter into the Trust Agreement on or prior to
the Closing Date.
(j) The Company and the Sponsor will apply the net proceeds from the
sale of the Designated Notes in the manner set forth in the Final
Prospectus.
6. Conditions to the Obligations of the Underwriter. Your obligation
hereunder to purchase the Designated Notes shall be subject to the accuracy of
the representations and warranties on the part of the Company and the Sponsor
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date and
as of the Closing Date, to the accuracy of the statements of the Company and the
Sponsor made in any certificates delivered pursuant to the provisions hereof, to
the performance by the Company and the Sponsor of its obligations hereunder and
to the following additional conditions:
(a) The Registration Statement shall have become effective and no
stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and not withdrawn and no
proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed or transmitted for filing with
the Commission in accordance with Rule 424 under the 1933 Act. Any request
of the Commission for inclusion of additional information in the
Registration Statement or the Base Prospectus shall have been complied
with.
(b) You shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, your counsel,
a favorable opinion, dated the Closing Date, to the effect that:
11
(i) No facts have come to the attention of such counsel which
lead them to believe that the Registration Statement and the Final
Prospectus (other than the financial statements and other financial
and statistical data contained therein, as to which we are not
called upon to express any belief), at the time the Registration
Statement became effective, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein not misleading, or that the Final
Prospectus (other than the financial statements and other financial
and statistical data contained therein, as to which we are not
called upon to express any belief), as of its date and as of the
date hereof, contained or contains any untrue statement of a
material fact, or omitted or omits to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Such counsel may: (1) express its reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement, the Trust
Agreement, the Indenture, the Sale and Servicing Agreement, the Purchase
Agreement and the Insurance and Indemnity Agreement; (2) assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Company; (3) qualify such
opinion only as to the federal laws of the United States of America, the laws of
the State of New York and the general corporation law of the State of Delaware.
Such counsel shall also confirm that you may rely, on and as of the Closing
Date, on any opinion or opinions of such counsel submitted to the rating agency
or agencies rating the Designated Notes as if addressed to you and dated the
Closing Date.
(c) You shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, your counsel,
a favorable opinion, dated the Closing Date, to the effect that (i) for
federal income tax purposes the Designated Notes will be treated as
indebtedness and (ii) the Trust will not be treated as an association (or
publicly traded partnership) taxable as a corporation or a taxable
mortgage pool;
(d) You shall have received a certificate, signed by the president,
a senior vice president or a vice president of the Company and the
Sponsor, dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Registration Statement, the
Purchase Agreement, the Trust Agreement, the Indenture, the Sale and
Servicing Agreement, the Insurance and Indemnity Agreement, and this
Agreement and that, to the best of his or her knowledge based upon
reasonable investigation:
a. the representations and warranties of the Company and the
Sponsor in this Agreement, as of the Closing Date, and in the Sale
and Servicing Agreement, the Trust Agreement, the Purchase
Agreement, and the Insurance and Indemnity Agreement and in all
related agreements, as of the date specified in such agreements, are
true and correct, and the Company and the Sponsor has complied with
all the agreements and
12
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
b. there are no actions, suits or proceedings pending, or to
the best of such officer's knowledge, threatened against or
affecting the Company or the Sponsor which if adversely determined,
individually or in the aggregate, would be reasonably likely to
adversely affect the Company's or the Sponsor's obligations under
the Sale and Servicing Agreement, the Insurance and Indemnity
Agreement, the Purchase Agreement or this Agreement in any material
way or the Sponsor's obligations under the Trust Agreement in any
material way; and no merger, liquidation, dissolution or bankruptcy
of the Company or the Sponsor is pending or contemplated;
c. the information contained in the Registration Statement and
the Final Prospectus relating to the Company and the Sponsor, the
Mortgage Loans or the servicing procedures of it or its affiliates
or subservicer is true and accurate in all material respects and
nothing has come to his or her attention that would lead such
officer to believe that the Registration Statement or Final
Prospectus includes any untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein
not misleading;
d. the information set forth in the Schedule of Mortgage Loans
required to be furnished pursuant to the Purchase Agreement and the
Sale and Servicing Agreement is true and correct in all material
respects;
e. there has been no amendment or other document filed
affecting the articles of incorporation or bylaws of the Company or
the Sponsor since __________, 200_, and no such amendment has been
authorized. No event has occurred since __________, 200_, which has
affected the good standing of the Company under the laws of the
State of New York or the good standing of the Sponsor under the laws
of the State of Delaware;
f. there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company, the Sponsor and its subsidiaries, taken
as a whole, from __________, 200_.
g. on or prior to the Closing Date, there has been no
downgrading, nor has any notice been given of (A) any intended or
potential downgrading or (B) any review or possible changes in
rating the direction of which has not been indicated, in the rating,
if any, accorded the Company or its affiliates or in any rating
accorded any securities of the
13
Company, if any, by any "nationally recognized statistical rating
organization," as such term is defined for purposes of the 1933 Act;
h. each person who, as an officer or representative of the
Company or the Sponsor, signed or signs the Registration Statement,
the Sale and Servicing Agreement, the Trust Agreement, the Insurance
and Indemnity Agreement, this Agreement, the Purchase Agreement or
any other document delivered pursuant hereto, on the date of such
execution, or on the Closing Date, as the case may be, in connection
with the transactions described in the Sale and Servicing Agreement,
the Trust Agreement, the Insurance and Indemnity Agreement, the
Purchase Agreement and this Agreement was, at the respective times
of such signing and delivery, and is now, duly elected or appointed,
qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents are their
genuine signatures; and
i. no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's or the Sponsor's
knowledge, threatened.
The Company and the Sponsor shall attach to such certificate a true
and correct copy of its certificate or articles of incorporation, as
appropriate, and bylaws which are in full force and effect on the date of such
certificate and a certified true copy of the resolutions of its Board of
Directors with respect to the transactions contemplated herein.
(e) You shall have received from ▇▇▇▇▇ & ▇▇▇▇▇, counsel to the
Company, an opinion, dated the Closing Date, to the effect that:
(i) Each of the Company and the Sponsor has been duly
organized and is validly existing as a corporation in good standing
under the laws of its state of incorporation and is qualified to do
business in each state necessary to enable it to perform its
obligations under the Sale and Servicing Agreement, this Agreement,
the Indenture, the Purchase Agreement, the Trust Agreement and the
Insurance and Indemnity Agreement and has all corporate power and
authority necessary to own or hold its properties and to conduct its
business as now conducted by it and to enter into and perform its
obligations under this Agreement, the Indenture, the Trust
Agreement, the Sale and Servicing Agreement, the Purchase Agreement
and the Insurance and Indemnity Agreement;
(ii) To the best knowledge of such counsel, there are no
actions, proceedings or investigations pending or threatened against
or affecting the Company or the Sponsor before or by any court,
arbitrator, administrative agency or other governmental authority
reasonably likely to be adversely determined that would materially
and adversely affect the
14
ability of the Company or the Sponsor to carry out the transactions
contemplated in this Agreement, the Indenture, the Trust Agreement,
the Sale and Servicing Agreement, the Purchase Agreement or the
Insurance and Indemnity Agreement;
(iii) No consent, approval, authorization or order of, or
filing or registration with, any state or federal court or
governmental agency or body is required for the consummation by the
Company or the Sponsor of the transactions contemplated herein,
except such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Designated Notes and except any recordation of the assignments of
the Mortgage Loans to the Trustee pursuant to the Sale and Servicing
Agreement that have not yet been completed;
(iv) Each of the Company and the Sponsor is not in violation
of its certificate of incorporation or by-laws or in default under
any agreement, indenture or instrument the effect of which violation
or default would be material to the Company or the Sponsor, and
neither the issuance and sale of the Designated Notes, nor the
execution or delivery of or performance under this Agreement, the
Indenture, the Trust Agreement, the Sale and Servicing Agreement,
the Purchase Agreement or the Insurance and Indemnity Agreement, nor
the consummation of any other of the transactions contemplated
herein or therein will conflict with or result in a breach or
violation of any term or provision of, or constitute a default (or
an event which with the passing of time or notification, or both,
would constitute a default) under, the certificate of incorporation
or by-laws of the Company or the Sponsor, or, to the knowledge of
such counsel, any indenture or other agreement or instrument to
which the Company or the Sponsor or any of its affiliates is a party
or by which it or any of them is bound, or any New York or federal
statute or regulation applicable to the Company or the Sponsor or
any of its affiliates or, to the knowledge of such counsel, any
order of any New York or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over
the Company or the Sponsor or any of its affiliates;
(v) Each of the Company and the Sponsor possesses all material
licenses, certificates, authorities or permits issued by the
appropriate State, Federal or foreign regulatory agencies or bodies
necessary to conduct the business now conducted by it and as
described in the Final Prospectus, and neither the Company nor the
Sponsor has received notice of any proceedings relating to the
revocation or modification of any such license, certificates,
authority or permit which if decided adversely to the Company or the
Sponsor would, singly or in the aggregate, materially and adversely
affect the conduct of its business, operations or financial
condition.
15
(vi) The Sale and Servicing Agreement, this Agreement, the
Indenture, the Purchase Agreement and the Insurance and Indemnity
Agreement have been duly authorized, executed and delivered by the
Company and the Sponsor and constitute legal, valid and binding
agreements of the Company and the Sponsor, enforceable against the
Company and the Sponsor in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors' rights
generally and to general principles of equity, regardless of whether
enforcement is sought in a proceeding in equity or at law;
(vii) The Trust Agreement has been duly authorized, executed
and delivered by the Sponsor and constitutes a legal, valid and
binding agreement of the Sponsor enforceable against the Sponsor in
accordance with its terms, subject as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting creditors' rights generally and to general principles
or equity, regardless of whether enforcement is sought in a
proceeding in equity or at law;
(viii) The direction by the Sponsor to the Trustee to execute,
authenticate and deliver the Designated Notes has been duly
authorized by the Sponsor, and the Designated Notes, when executed
and authenticated in the manner contemplated in the Indenture, will
be validly issued and outstanding and entitled to the benefits of
the Indenture;
(ix) The Designated Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the Final
Prospectus; and
(x) Neither the transfer of the Mortgage Loans to the Trust,
the pledge of the Mortgage Loans, the issuance or sale of the
Designated Notes nor the execution, delivery or performance by the
Company and the Sponsor of this Agreement, the Trust Agreement, the
Insurance and Indemnity Agreement, the Sale and Servicing Agreement
or the Purchase Agreement (A) conflicts or will conflict with or
results or will result in a breach of, or constitutes or will
constitute a default under, (i) any term or provision of the
certificate of incorporation or bylaws of the Company or the
Sponsor; (ii) any term or provision of any material agreement,
contract, instrument or indenture, to which the Company or the
Sponsor is a party or is bound and known to such counsel; or (iii)
any order, judgment, writ, injunction or decree of any court or
governmental agency or body or other tribunal having jurisdiction
over the Company or the Sponsor and known to such counsel; or (B)
results in, or will result in the creation or imposition of any
lien, charge or encumbrance upon the Trust or upon the Designated
Notes, except as otherwise contemplated by the Indenture.
16
(xi) The Registration Statement has become effective under the
1933 Act; to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and not withdrawn and no proceedings for that purpose have
been instituted or threatened and not terminated; and the
Registration Statement, the Final Prospectus and each amendment or
supplement thereto and the Indenture, as of their respective
effective or issue dates (other than the financial and statistical
information contained therein as to which we express no opinion)
complied as to form in all material respects with the applicable
requirements of the 1933 Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the respective rules and
regulations thereunder; and
(xii) The Indenture has been duly qualified under the Trust
Indenture Act and the Trust Agreement is not required to be
registered under the Trust Indenture Act.
Such counsel may: (1) express its reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement, the Trust
Agreement, the Indenture, the Sale and Servicing Agreement, the Purchase
Agreement and the Insurance and Indemnity Agreement; (2) assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Company; (3) qualify such
opinion only as to the federal laws of the United States of America, the laws of
the State of New York and the general corporation law of the State of Delaware.
Such counsel shall also confirm that you may rely, on and as of the Closing
Date, on any opinion or opinions of such counsel submitted to the rating agency
or agencies rating the Designated Notes as if addressed to you and dated the
Closing Date.
(f) You shall have received from ▇▇▇▇▇ & ▇▇▇▇▇, counsel to the
Company, an opinion, dated the Closing Date, to the effect that the sales
of the Mortgage Loans (i) from the Company to the Sponsor and (ii) from
the Sponsor to the Trust will be "true sales" for United States bankruptcy
purposes;
(g) You shall have received from ▇▇▇▇▇ & ▇▇▇▇▇, counsel to the
Company, an opinion, dated the Closing Date, to the effect that (i) in the
case of the bankruptcy of the Sponsor, a court would not disregard the
corporate form of the Sponsor so as to cause substantive consolidation
under the United States Bankruptcy Code of the assets and liabilities of
the Sponsor and the Company and (ii) in the case of the bankruptcy of the
bankruptcy of the Sponsor or the Company, a court would not disregard the
corporate form of the Sponsor or the Company, respectively, so as to cause
substantive consolidation under the United States Bankruptcy Code of the
assets and liabilities of the Sponsor or the Company, respectively, and
the Issuer;
(h) You shall have received from [Accountants], certified public
accountants, one or more letters, including bring-down letters, dated the
date
17
hereof and satisfactory in form and substance to you and your counsel, to
the effect that such accountants have performed certain specified
procedures regarding certain information of an accounting, financial or
statistical nature set forth in the Prospectus Supplement.
(i) You shall have received a rating letter assigning a rating to
the Designated Notes of "___" from [First Rating Agency] and "___" from
[Second Rating Agency], which ratings shall not have been withdrawn.
(j) You shall have received from counsel for the Trustee a favorable
opinion, dated the Closing Date, in form and substance satisfactory to you
and your counsel, to the effect that the Indenture has been duly
authorized, executed and delivered by the Trustee and constitutes a legal,
valid, binding and enforceable agreement of the Trustee, subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights in general and by general
principles of equity regardless of whether enforcement is considered in a
proceeding in equity or at law, and as to such other matters as may be
agreed upon by you and the Trustee.
(k) You shall have received from counsel for the Owner Trustee a
favorable opinion, dated the Closing Date, in form and substance
satisfactory to you and your counsel, to the effect that the Trust
Agreement has been duly authorized, executed and delivered by the Owner
Trustee and constitutes a legal, valid, binding and enforceable agreement
of the Owner Trustee, subject as to enforceability to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights in general and by general principles of equity
regardless of whether enforcement is considered in a proceeding in equity
or at law, and as to such other matters as may be agreed upon by you and
the Owner Trustee.
(l) You shall have received from the Trustee a certificate, signed
by the President, a senior vice president or a vice president of the
Trustee, dated the Closing Date, to the effect that each person who, as an
officer or representative of the Trustee, signed or signs the Designated
Notes, the Indenture or any other document delivered pursuant hereto, on
the date hereof or on the Closing Date, in connection with the
transactions described in the Indenture was, at the respective times of
such signing and delivery, and is now, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures
of such persons appearing on such documents are their genuine signatures.
(m) You shall have received from the Owner Trustee a certificate,
signed by the President, a senior vice president or a vice president of
the Owner Trustee, dated the Closing Date, to the effect that each person
who, as an officer or representative of the Owner Trustee, signed or signs
the Trust Agreement, the Certificate or any other document delivered
pursuant hereto, on the date hereof or on the Closing Date, in connection
with the transactions described in the Trust Agreement was, at the
respective times of such signing and delivery, and is now,
18
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such
documents are their genuine signatures.
(n) The Policy relating to the Designated Notes shall have been duly
executed and issued at or prior to the Closing Date and shall conform in
all material respects to the description thereof in the Final Prospectus.
(o) You shall have received a favorable opinion of in-house counsel
to the Insurer, dated the Closing Date and in form and substance
satisfactory to your counsel, to the effect that:
(i) The Insurer is an insurance corporation, duly incorporated
and validly existing under the laws of the State of New York. The
Insurer is validly licensed to do business in New York and is
authorized to issue the Policy and perform its obligations under the
Policy in accordance with the terms thereof.
(ii) The execution and delivery by the Insurer of the Policy,
and the Insurance and Indemnity Agreement are within the corporate
power of the Insurer and have been authorized by all necessary
corporate action on the part of the Insurer; the Policy has been
duly executed and are the valid and binding obligation of the
Insurer enforceable in accordance with its terms except that the
enforcement of the Policy may be limited by laws relating to
bankruptcy, insolvency, reorganization, moratorium, receivership and
other similar laws affecting creditors' rights generally and by
general principles of equity.
(iii) The Insurer is authorized to deliver the Insurance and
Indemnity Agreement, and such agreement has been duly executed and
delivered and constitute the legal, valid and binding obligations of
the Insurer enforceable in accordance with its terms except that the
enforcement of the Insurance and Indemnity Agreement may be limited
by laws relating to bankruptcy, insolvency, reorganization,
moratorium, receivership and other similar laws affecting creditors'
rights generally and by general principles of equity and by public
policy considerations relating to indemnification for securities law
violations.
(iv) No consent, approval, authorization or order of any state
or federal court or governmental agency or body is required on the
part of the Insurer, the lack of which would adversely affect the
validity or enforceability of the Policy; to the extent required by
applicable legal requirements that would adversely affect validity
or enforceability of the Policy, the form of the Policy has been
filed with, and approved by, all governmental authorities having
jurisdiction over the Insurer in connection with the Policy.
19
(v) The Policy is not required to be registered under the ▇▇▇▇
▇▇▇.
(vi) The information set forth under the caption "The Insurer
and the Policy" in the Prospectus Supplement forming a part of the
Registration Statement, insofar as such statements constitute a
description of the Policy, accurately summarizes the Policy.
In rendering this opinion, such counsel may rely, as to matters of
fact, on certificates of responsible officers of the Company, the Trustee, the
Insurer and public officials. Such opinion may assume the due authorization,
execution and delivery of the instruments and documents referred to therein by
the parties thereto other than the Insurer.
(p) On or prior to the Closing Date, there has been no downgrading,
nor has any notice been given of (A) any intended or potential downgrading
or (B) any review or possible changes in rating the direction of which has
not been indicated, in the rating, if any, accorded the Insurer's claims
paying ability by any "nationally recognized statistical rating
organization," as such term is defined for purposes of the 1933 Act.
(q) On or prior to the Closing Date, there has been no downgrading,
nor has any notice been given of (A) any intended or potential downgrading
or (B) any review or possible changes in rating the direction of which has
not been indicated, in the rating, if any, accorded the Company or in any
rating accorded any securities of the Company, if any, by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of the 1933 Act.
(r) There has not occurred any change, or any development involving
a prospective change, in the condition, financial or otherwise, or in the
earnings, business or operations, since __________, 200_, of (A) the
Company and its subsidiaries or (B) the Insurer, that is in your judgment
material and adverse and that makes it in your judgment impracticable to
market the Designated Notes on the terms and in the manner contemplated in
the Final Prospectus.
(s) You shall have received from the Insurer a certificate, signed
by the president, a senior vice president or a vice president of the
Insurer, dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Policy, the Insurance and Indemnity
Agreement and the related documents and that, to the best of his or her
knowledge based on reasonable investigation:
(i) There are no actions, suits or proceedings pending or
threatened against or affecting the Insurer which, if adversely
determined, individually or in the aggregate, would adversely affect
the Insurer's performance under the Policy or the Insurance and
Indemnity Agreement;
20
(ii) Each person who as an officer or representative of the
Insurer, signed or signs the Policy, the Insurance and Indemnity
Agreement or any other document delivered pursuant hereto, on the
date thereof, or on the Closing Date, in connection with the
transactions described in this Agreement was, at the respective
times of such signing and delivery, and is now, duly elected or
appointed, qualified and acting as such officer or representative,
and the signatures of such persons appearing on such documents are
their genuine signatures;
(iii) The tables regarding the Insurer's capitalization set
forth under the heading "The Insurer and the Policy" presents fairly
the capitalization of the Insurer as of __________, 200_;
(iv) The audited balance sheet of the Insurer as of
__________, 200_ and the related statement of income and retained
earnings for the fiscal year then ended, and the accompanying
footnotes, together with opinion of [Insurer's Accountants], an
independent certified public accountant, copies of which are
included in the Prospectus Supplement, fairly present in all
material respects the financial condition of the Insurer as of such
date and for the period covered by such statements in accordance
with generally accepted accounting principles consistently applied.
(v) to the best knowledge of such officer, since __________,
200_, no material adverse change has occurred in the financial
position of the Insurer other than as set forth in the Prospectus
Supplement.
The Insurer shall attach to such certificate a true and correct copy
of its certificate or articles of incorporation, as appropriate, and its bylaws,
all of which are in full force and effect on the date of such certificate.
(t) You shall have received such further information, certificates,
documents and opinions as you may reasonably have requested not less than
three business days prior to the Closing Date.
(u) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be satisfactory
in form and substance to you and your counsel, and you and such counsel
shall have received such information, certificates and documents as you or
they may have reasonably requested.
(v) Prior to the Closing Date, your counsel shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Designated Notes as herein contemplated and related proceedings or in
order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained, and all proceedings taken by the
21
Company in connection with the issuance and sale of the Designated Notes
as herein contemplated shall be satisfactory in form and substance to you
and your counsel.
(w) Subsequent to the execution and delivery of this Agreement none
of the following shall have occurred: (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices shall
have been established on either of such exchanges or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium
shall have been declared by Federal or state authorities; (iii) the United
States shall have become engaged in hostilities, there shall have been an
escalation of hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States; or
(iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets of the United States
shall be such) as to make it, in the judgment of the Underwriter,
impractical or inadvisable to proceed with the public offering or delivery
of the Designated Notes on the terms and in the manner contemplated in the
Final Prospectus.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company or the Sponsor is in breach of any covenants or agreements
contained herein or if any of the opinions and certificates referred to above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to you and your counsel, this Agreement and
all your obligations hereunder may be canceled by you at, or at any time prior
to, the Closing Date. Notice of such cancellation shall be given to the Company
and the Sponsor in writing, or by telephone or facsimile transmission confirmed
in writing.
7. Payment of Expenses. The Sponsor or the Company agrees to pay: (a) the
costs incident to the authorization, issuance, sale and delivery of the
Designated Notes and any taxes payable in connection therewith; (b) the costs
incident to the preparation, printing and filing under the 1933 Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), the Base Prospectus, the Final Prospectus, any amendment or
supplement to the Base Prospectus or any document incorporated by reference
therein, all as provided in this Agreement; (d) the costs of reproducing and
distributing this Agreement; (e) the fees and expenses of qualifying the
Designated Notes under the securities laws of the several jurisdictions as
provided in Section 5(g) hereof and of preparing, printing and distributing a
Blue Sky Memorandum (including related fees and expenses of your counsel); (f)
any fees charged by securities rating services for rating the Designated Notes;
(g) any fees and expenses of your counsel, the Trustee, the Trustee's counsel
and the Sponsor's and the Company's counsel incurred in connection with the
transactions described herein; (h) any fees and expenses associated with
registering the
22
Designated Notes with The Depository Trust Company, Clearstream Banking, societe
anonyme or the Euroclear System; (i) any fees and expenses incurred in
connection with your or Insurer's due diligence associated with the transactions
described herein, including but not limited to the costs and expenses incurred
in connection with re-underwriting and appraisal services performed by third
parties; and (j) all other costs and expenses incident to the performance of the
obligations of the Company.
8. Indemnification and Contribution.
(a) Each of the Company and the Sponsor agrees to indemnify and hold
you harmless and each person, if any, who controls you within the meaning
of Section 15 of the 1933 Act from and against any and all loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of the Designated Notes), to which
you or any such controlling person may become subject, under the 1933 Act
or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) any untrue statement or alleged
untrue statement of a material fact contained in the Final Prospectus or
(iv) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading and shall reimburse you and each such controlling person
promptly upon demand for any legal or other expenses reasonably incurred
by you or such controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company and the Sponsor shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Base Prospectus, the Final
Prospectus or the Registration Statement in reliance upon and in
conformity with any Underwriter Information (defined below); and provided,
further, that as to any Base Prospectus this indemnity shall not inure to
your benefit or the benefit of any controlling person on account of any
loss, claim, damage, liability or action arising from the sale of the
Designated Notes to any person by you if you failed to send or give a copy
of the Final Prospectus, as amended or supplemented, to that person within
the time required by the 1933 Act. For purposes of the last proviso to the
immediately preceding sentence, the term "Final Prospectus" shall not be
deemed to include the documents incorporated therein by reference, and you
shall not be obligated to send or give any supplement or amendment to any
document incorporated therein by reference to any person other than a
person to whom you had delivered such incorporated document or documents
in response to a written request therefor. The foregoing indemnity
agreement is in addition to any liability which each of the Company and
the Sponsor may otherwise have to you or any person who controls you.
23
(b) You agree to indemnify and hold harmless each of the Company and
the Sponsor, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
and the Sponsor within the meaning of Section 15 of the 1933 Act against
any and all loss, claim, damage or liability, or any action in respect
thereof, to which the Company, the Sponsor or any such director, officer
or controlling person may become subject, under the 1933 Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or
is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, (ii) the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact
contained in the Final Prospectus or (iv) the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with Underwriter Information, and shall reimburse the Company
and the Sponsor and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Company and the
Sponsor or any director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which you
may otherwise have to each of the Company and the Sponsor or any such
director, officer or controlling person.
(c) Promptly after receipt by any indemnified party under this
Section 8 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against any indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify an indemnifying
party shall not relieve it from any liability which it may have under this
Section 8 except to the extent it has been materially prejudiced by such
failure and provided, further, that the failure to notify any indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
24
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by you, if the indemnified parties under
this Section 8 consist of you or any of your controlling persons, or by the
Company, if the indemnified parties under this Section 8 consist of the Company,
the Sponsor, or any of the Company's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 8(a), 8(b) and 8(c) shall use its best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement.
(d) You agree to deliver to the Company or the Sponsor no later than
the date on which the Prospectus Supplement is required to be filed
pursuant to Rule 424 with a copy of its Derived Information (defined
below) for filing with the Commission on Form 8-K.
(e) You agree, assuming all Company-Provided Information (defined
below) is accurate and complete in all material respects, to indemnify and
hold
25
harmless the Company, the Sponsor, each of the Company's and the Sponsor's
officers and directors and each person who controls the Company and the
Sponsor within the meaning of Section 15 of the 1933 Act against any and
all losses, claims, damages or liabilities, joint or several, to which
they may become subject under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement of a material fact
contained in the Derived Information provided by you, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred by him, her or
it in connection with investigating or defending or preparing to defend
any such loss, claim, damage, liability or action as such expenses are
incurred. Your obligations under this Section 8(e) shall be in addition to
any liability which you may otherwise have.
(f) Each of the Company and the Sponsor agree to indemnify and hold
harmless the Underwriter, each of the Underwriter's officers and directors
and each person who controls the Underwriter within the meaning of Section
15 of the 1933 Act against any and all losses, claims, damages or
liabilities, joint or several, to which they may become subject under the
1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement of a material fact contained in the Company-Provided
Information provided by the Company or the Sponsor, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by him, her or it in
connection with investigating or defending or preparing to defend any such
loss, claim, damage, liability or action as such expenses are incurred.
Each of the Company's and the Sponsor's obligations under this Section
8(f) shall be in addition to any liability which they may otherwise have.
The procedures set forth in Section 8(c) shall be equally applicable
to Sections 8(e) and 8(f).
(g) For purposes of this Section 8, the term "Underwriter
Information" means that written information furnished to the Company and
the Sponsor by you or on your behalf specifically for inclusion in the
Final Prospectus, other than Derived Information, which is set forth (i)
in the next-to-last sentence of the next-to-last paragraph on page S-__ of
the Prospectus Supplement, (ii) in the first two sentences of the
paragraph immediately preceding the Table of Contents on page S-__ of the
Prospectus Supplement and (iii) in the ______ paragraph under the heading
"Method of Distribution" of the Prospectus Supplement.
26
(h) For purposes of this Section 8, the term "Derived Information"
means such portion, if any, of the information delivered to the Company or
the Sponsor by the Underwriter pursuant to Section 8(e) for filing with
the Commission on Form 8-K as:
(i) is not contained in the Final Prospectus without taking
into account information incorporated therein by reference;
(ii) does not constitute Company-Provided Information; and
(iii) is of the type of information defined as Collateral Term
Sheets, Structural Term Sheets or Computational Materials (as such
terms are interpreted in the No-Action Letters).
"Company-Provided Information" means any computer tape furnished to
the Underwriter by the Company concerning the Mortgage Loans comprising the
Trust or any other information furnished by the Company to the Underwriter that
is relied on or is reasonably anticipated by the parties hereto to be relied on
by the Underwriter in the course of the Underwriter's preparation of its Derived
Information or the written information to be included in the Prospectus
Supplement by the Underwriter as set forth in Section 8(i) herein.
The terms "Collateral Term Sheet" and "Structural Term Sheet" shall
have the respective meanings assigned to them in the February 13, 1995 letter
(the "PSA Letter") of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ on behalf of the Public
Securities Association (which letter, and the SEC staff's response thereto, were
publicly available February 17, 1995). The term "Collateral Term Sheet" as used
herein includes any subsequent Collateral Term Sheet that reflects a substantive
change in the information presented. The term "Computational Materials" has the
meaning assigned to it in the May 17, 1994 letter (the "▇▇▇▇▇▇ letter" and
together with the PSA Letter, the "No-Action Letters") of ▇▇▇▇▇ & ▇▇▇▇ on behalf
of ▇▇▇▇▇▇, Peabody & Co., Inc. (which letter, and the SEC staff's response
thereto, were publicly available May 20, 1994).
(i) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8 in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party
as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company and the Sponsor on the one hand
and you on the other from the offering of the Designated Notes or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law or if the indemnified party failed to give the notice required under
Section 8(c), in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Sponsor on the one hand and you on the other
with respect to the statements or omissions which
27
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations.
The relative benefits to you and the Company and the Sponsor shall
be deemed to be in such proportion so that you are responsible for _____% of the
offering price and the Company and the Sponsor are responsible for _____% of the
offering price.
The relative fault of each of you and the Company and the Sponsor
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, the Sponsor or by you, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and other equitable
considerations.
The Company, the Sponsor and you agree that it would not be just and
equitable if contributions pursuant to this Section 8(h) were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8(h)
shall be deemed to include, for purposes of this Section 8(h), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
In no case shall you be responsible for any amount in excess of the
underwriting discount applicable to the Designated Notes purchased by you
hereunder. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
You confirm that the information set forth in the fifth paragraph
under the caption "Underwriting" in the Prospectus Supplement, together with the
Derived Information constitutes the only information furnished in writing to the
Company or the Sponsor by you or on your behalf specifically for inclusion in
the Registration Statement and the Final Prospectus.
9. Termination.
(a) This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Company or the Sponsor prior to
delivery of and payment for the Designated Notes, if, prior to such time,
(i) trading of securities generally on the New York Stock Exchange or the
American Stock Exchange shall have been suspended or materially limited,
(ii) a general moratorium on commercial banking activities in New York
shall have been declared by either federal or New York State authorities
or (iii) there shall have occurred any material outbreak or declaration of
hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in
28
your reasonable judgment, impracticable to market the Designated Notes on
the terms specified herein.
(b) If the sale of the Designated Notes shall not be consummated
because any condition to your obligations set forth in Section 6 hereof is
not satisfied or because of any refusal, inability or failure on the part
of the Company or the Sponsor to perform any agreement herein or comply
with any provision hereof other than by reason of your default, the
Company and the Sponsor shall reimburse you for the reasonable fees and
expenses of your counsel and for such other out-of-pocket expenses as
shall have been incurred by you in connection with this Agreement and the
proposed purchase of the Designated Notes, and upon demand the Company and
the Sponsor shall pay the full amount thereof to you.
(c) This Agreement will survive delivery of and payment for the
Designated Notes. The provisions of Sections 1, 5, 7, 8 and this Section
9(c) shall survive the termination or cancellation of this Agreement.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to you, will be mailed, delivered or transmitted
by facsimile and confirmed to you at [Underwriter's Address]; or, if sent to (i)
the Sponsor, will be mailed, delivered or transmitted by facsimile and confirmed
to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: Finance
Department or (ii) the Company, will be mailed, delivered or transmitted by
facsimile and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention: Finance Department.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons and their successors and assigns, and no other
person will have any right or obligation hereunder.
12. Applicable Law; Counterparts. This Agreement will be governed by and
construed in accordance with the laws of the State of New York. This Agreement
may be executed in any number of counterparts, each of which shall for all
purposes be deemed to be an original and all of which shall together constitute
but one and the same instrument.
13. Survival. The respective indemnities, representations, warranties and
agreements of the Company and you contained in this Agreement, or made by or on
behalf of them, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Designated Notes and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
14. Definition of the Term "Business Day". For purposes of this Agreement,
"Business Day" means any day on which the New York Stock Exchange, Inc. is open
for trading.
29
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW,
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
16. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company, the Sponsor and you.
Very truly yours,
GREENPOINT MORTGAGE FUNDING, INC.
By: _______________________________________
Name:
Title:
GREENPOINT MORTGAGE SECURITIES INC.
By: _______________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[UNDERWRITER]
By: _________________________
Name:
Title:
[Underwriting Agreement]
SCHEDULE I
Underwriting Agreement dated __________, 200_.
As used in this Agreement, the term "Registration Statement" refers to the
Registration Statement on Form S-3 (File No. 333-_____) filed on __________,
200_ and declared effective by the Commission on __________, 200_.
Closing Date: __________, 200_.
Title and Description of Designated Notes:
--------------------------------------------------------------------------------
GreenPoint Home Equity Loan Trust 200_-_, Home Equity Loan Asset-Backed
Securities, Series 200_-_,
o $__________ Class A-1 Variable Rate Notes.
Purchase Price: _____%.
o $__________ Class A-2 Variable Rate Notes.
Purchase Price: _____%.
Pool I Principal Balance as of Cut-Off Date (Relating to Class A-1): $_________
Pool II Principal Balance as of Cut-Off Date (Relating to Class A-2): $_________
Cut-off Date: __________, 200_