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EXECUTION COPY
GREENPOINT MORTGAGE FUNDING, INC.
GREENPOINT MORTGAGE SECURITIES INC.
HOME EQUITY LOAN VARIABLE RATE ASSET-BACKED NOTES
Series 2000-3
Class A-1 Notes, Class A-2 Notes and Class A-3 Notes
UNDERWRITING AGREEMENT
New York, New York
December 5, 2000
Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Dear Sirs:
GreenPoint Mortgage Securities Inc., a Delaware corporation (the
"Sponsor"), proposes to cause GreenPoint Home Equity Loan Trust 2000-3 (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 December 1, 2000, between the Trust and Bankers Trust Company, as
Trustee (the "Trustee"). The Trust will be formed pursuant to a Trust Agreement
(the "Trust Agreement") to be dated as of December 1, 2000 and entered into
between the Sponsor and Wilmington Trust Company, as Owner Trustee. The
Designated Notes, and an interest-only certificate and a residual certificate
issued to the Sponsor (the "Certificates") 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 December 1, 2000
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.
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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
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material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, does not
contain and will not contain any untrue statement of a material fact
and does not omit and will not omit to state any material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Sponsor makes no
representations or warranties as to statements contained in or omitted
from the Registration Statement or the Final Prospectus or any
amendment or supplement thereto made in reliance upon and in conformity
with information furnished in writing to the Company by you
specifically for use in the Registration Statement and the Final
Prospectus.
(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 December
1, 2000 between the Company and the Sponsor (the "Purchase Agreement")
and the Insurance and Indemnity Agreement dated as of December 18, 2000
(the "Insurance and Indemnity Agreement") between the Company,
Financial Guaranty Insurance Company ("FGIC"), 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
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contemplated hereby and thereby, will have been duly authorized,
executed and delivered by each of the Company and the Sponsor, and when
so executed and delivered, will constitute legal, valid, binding and
enforceable agreements of each of the Company and the Sponsor, subject,
as to enforceability, to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and (ii) general principles of equity regardless of whether enforcement
is sought in a proceeding in equity or at law.
(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
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conflict with, result in a breach, violation or acceleration of, or
constitute a default under, the terms of any indenture or other
agreement or instrument to which the Company or the Sponsor is a party
or by which it is bound, or any statute, order or regulation applicable
to the Company or the Sponsor of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company or the Sponsor. Each of the Company and the Sponsor is not a
party to, bound by or in breach or violation of any indenture or other
agreement or instrument, or subject to or in violation of any statute,
order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it that materially
and adversely affects, or may in the future materially and adversely
affect, (i) the ability of the Company or the Sponsor to perform its
obligations under this Agreement, the Purchase Agreement, the Sale and
Servicing Agreement or the Insurance 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
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securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Notes by you or as have been obtained.
(t) Each of the Company and the Sponsor possesses all material
licenses, certificates, authorities or permits issued by the
appropriate State, Federal or foreign regulatory agencies or bodies
necessary to conduct the business now conducted by it and as described
in the Final Prospectus, and neither the Company nor the Sponsor has
received notice of any proceedings relating to the revocation or
modification of any such license, certificates, authority or permit
which if decided adversely to the Company or the Sponsor would, singly
or in the aggregate, materially and adversely affect the conduct of its
business, operations or financial condition.
(u) Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement, the
Purchase Agreement, the Trust Agreement, the Sale and Servicing
Agreement and the Insurance and Indemnity Agreement or the execution,
delivery and sale of the Designated Notes have been or will be paid on
or prior to the Closing Date.
(v) Immediately prior to the assignment of the Mortgage Loans
to the Trust as contemplated by the Sale and Servicing Agreement, the
Company (i) had good title to, and was the sole owner of, each Mortgage
Loan free and clear of any pledge, mortgage, lien, security interest or
other encumbrance (collectively, "Liens"), (ii) had not assigned to any
person any of its right, title or interest in such Mortgage Loans and
(iii) will have the power and authority to sell such Mortgage Loans to
the Sponsor pursuant to the Purchase Agreement and upon the execution
and delivery of the Sale and Servicing Agreement by the Sponsor, the
Trust will have acquired all of the Sponsor's and the Company's right,
title and interest in and to the Mortgage Loans.
(w) At the time of execution and delivery of the Indenture,
(1) the Trust will own the Mortgage Loans being pledged to the Trustee
pursuant thereto, free and clear of any Liens, except to the extent
permitted in the Indenture, and will not have assigned to any person
other than the Trustee any of its right, title or interest in the
Mortgage Loans, (2) the Trust will have the power and authority to
pledge the Trust Estate to the Trustee and to transfer the Designated
Notes and will have duly authorized such action by all necessary
corporate action, (3) upon execution and delivery by the Trust to the
Trustee of the Indenture, and delivery of the Designated Notes, the
Trustee will have a valid, perfected security interest of first
priority in the Trust Estate free of Liens other than Liens permitted
by the Indenture and (4) upon payment and delivery of the Designated
Notes to you, you will acquire ownership of the Designated Notes, free
of Liens other than Liens permitted by the Indenture or created or
granted by you.
(x) At the Closing Date, the execution and delivery of the
Indenture by the Trust will have been duly authorized by the Sponsor
and upon due execution and delivery thereof by the parties thereto, the
Indenture will constitute a legal,
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valid and binding agreement enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, reorganization,
insolvency or other similar laws affecting creditors' rights generally
and by general principles of equity.
(y) At the Closing Date, the Trust will have assigned, pledged
and delivered to the Trustee under the Indenture all of its right,
title and interest in and to, among other things, (i) the Mortgage
Loans, and (ii) cash and/or other assets, if any, in the amount set
forth in the Indenture (the "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 Dewey Ballantine LLP prior to 12:00 p.m.,
Eastern Standard Time, on the date specified in Schedule I hereto (or such later
date not later than seven business days after such specified date as you shall
designate), which date and time may be changed by agreement between you and the
Sponsor or as provided herein (such date and time of delivery and payment for
the Designated Notes being herein called the "Closing Date"). Delivery of the
Designated Notes shall be made to you against payment by you of the purchase
price therefor in immediately available funds wired to such bank as may be
designated by the Sponsor, or such other manner of payment as may be agreed upon
by the Sponsor and you. The Designated Notes to be so delivered shall be in
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definitive fully registered form, unless otherwise agreed, in such denominations
and registered in such names as you may have requested in writing not less than
two full business days in advance of the Closing Date.
The Sponsor agrees to have the Designated Notes available for
inspection, checking and packaging by you at the offices of Dewey Ballantine
LLP, not later than 4:00 p.m. on the business day prior to the Closing Date.
4. Offering of the Designated Notes. It is understood that you propose
to offer the Designated Notes for sale to the public as set forth in the Final
Prospectus.
5. Covenants of the Company and the Sponsor. Each of the Company and
the Sponsor covenants and agrees with you that:
(a) The Company and the Sponsor will prepare a supplement to
the Base Prospectus setting forth the amount of Designated Notes
covered thereby and the terms thereof not otherwise specified in the
Base Prospectus, the expected proceeds to the Company from the sale of
such Designated Notes, and such other information as you and the
Company may deem appropriate in connection with the offering of such
Designated Notes. The Company and the Sponsor will file promptly all
reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the 1934 Act subsequent to the date of the Final
Prospectus. The Company and the Sponsor promptly will advise you or
your counsel (i) when the Final Prospectus shall have been filed or
transmitted to the Commission for filing pursuant to Rule 424, (ii)
when any amendment to the Registration Statement shall have become
effective or any further supplement to the Base Prospectus shall have
been filed with the Commission, (iii) of any proposal or request to
amend or supplement the Registration Statement, the Base Prospectus or
the Final Prospectus or any request by the Commission for any
additional information, (iv) when notice is received from the
Commission that any post-effective amendment to the Registration
Statement has become or will become effective, (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or post-effective amendment thereto or the
institution or threatening of any proceeding for that purpose, (vi) of
the receipt by the Company or the Sponsor of any notification with
respect to the suspension of the qualification of the Designated Notes
for sale in any jurisdiction or the institution or threatening of any
proceeding for that purpose, and (vii) of the occurrence of any event
that would cause the Registration Statement, as then in effect, to
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that would cause the
Final Prospectus, as then in effect, to contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. The
Company and the Sponsor will use its best efforts to prevent the
issuance of any such stop order or suspension and, if issued, to obtain
as soon as possible the
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withdrawal thereof. The Company and the Sponsor will cause the Final
Prospectus to be transmitted to the Commission for filing pursuant to
Rule 424 under the 1933 Act or will cause the Final Prospectus to be
filed with the Commission pursuant to said Rule 424.
(b) If, at any time when a prospectus relating to the
Designated Notes is required to be delivered under the 1933 Act, any
event occurs as a result of which the Final Prospectus, as then amended
or supplemented, would contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it shall be necessary
to amend or supplement the Final Prospectus to comply with the 1933 Act
or the rules and regulations thereunder, the Company and the Sponsor
promptly will prepare and file with the Commission, at the expense of
the Company or the Sponsor, as the case may be, subject to paragraph
(a) of this Section 5, an amendment or supplement that will correct
such statement or omission or an amendment that will effect such
compliance and, if such amendment or supplement is required to be
contained in a post-effective amendment to the Registration Statement,
the Company and the Sponsor will use their best efforts to cause such
amendment to the Registration Statement to be made effective as soon as
possible.
(c) The Company and the Sponsor will furnish to you and your
counsel, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall
become effective on or prior to the Closing Date, and so long as
delivery of a prospectus by you may be required by the 1933 Act, as
many copies of any Final Prospectus and any amendments and supplements
thereto as you may reasonably request.
(d) The Company and the Sponsor will file promptly with the
Commission any amendment to the Registration Statement or the Base
Prospectus or any supplement to the Base Prospectus that may, in your
judgment or the judgment of the Company or the Sponsor, be required by
the 1933 Act or requested by the Commission.
(e) The Company and the Sponsor will make generally available
to holders of the Designated Notes as soon as practicable, but in any
event not later than 90 days after the close of the period covered
thereby, a statement of earnings of the Trust (which need not be
audited) complying with Section 11(a) of the 1933 Act and the Rules and
Regulations (including, at the option of the Company and the Sponsor,
Rule 158) and covering a period of at least twelve consecutive months
beginning not later than the first day of the first fiscal quarter
following the Closing Date.
(f) Each of the Company and the Sponsor agrees that, so long
as the Designated Notes shall be outstanding, it will deliver to you
the annual statement as to compliance delivered to the Trustee pursuant
to Section 3.09 of the Sale and
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Servicing Agreement and the annual statement of a firm of independent
public accountants delivered to the Trustee pursuant to Section 3.10 of
the Sale and Servicing Agreement, as soon as such statements are
furnished to the Company or the Sponsor.
(g) The Company and the Sponsor will furnish such information,
execute such instruments and use their best efforts to qualify the
Designated Notes for sale under the laws of such jurisdictions as you
may designate and will maintain such qualifications in effect so long
as required for the distribution of the Designated Notes; provided,
however, that the Company and the Sponsor shall not be required to
qualify to do business in any jurisdiction where it is not now
qualified or to take any action that would subject it to general or
unlimited service of process in any jurisdiction where it is not now
subject to such service of process. Subject to the foregoing proviso,
the Company and the Sponsor will file or cause the filing of such
statements and reports as may be required by the laws of each
jurisdiction in which the Designated Notes have been so qualified.
(h) The Company and the Sponsor will enter into this
Agreement, the Sale and Servicing Agreement, the Purchase Agreement and
the Insurance and Indemnity Agreement on or prior to the Closing Date.
(i) The Sponsor will enter into the Trust Agreement on or
prior to the Closing Date.
(j) The Company and the Sponsor will apply the net proceeds
from the sale of the Designated Notes in the manner set forth in the
Final Prospectus.
6. Conditions to the Obligations of the Underwriter. Your obligation
hereunder to purchase the Designated Notes shall be subject to the accuracy of
the representations and warranties on the part of the Company and the Sponsor
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date and
as of the Closing Date, to the accuracy of the statements of the Company and the
Sponsor made in any certificates delivered pursuant to the provisions hereof, to
the performance by the Company and the Sponsor of its obligations hereunder and
to the following additional conditions:
(a) The Registration Statement shall have become effective and
no stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been
instituted or threatened; and the Final Prospectus shall have been
filed or transmitted for filing with the Commission in accordance with
Rule 424 under the 1933 Act. Any request of the Commission for
inclusion of additional information in the Registration Statement or
the Base Prospectus shall have been complied with.
(b) You shall have received from Dewey Ballantine LLP, your
counsel, a favorable opinion, dated the Closing Date, to the effect
that:
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(i) No facts have come to the attention of such counsel
which lead them to believe that the Registration Statement and
the Final Prospectus (other than the financial statements and
other financial and statistical data contained therein, as to
which we are not called upon to express any belief), at the
time the Registration Statement became effective, contained
any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein not misleading, or that the Final Prospectus (other
than the financial statements and other financial and
statistical data contained therein, as to which we are not
called upon to express any belief), as of its date and as of
the date hereof, contained or contains any untrue statement of
a material fact, or omitted or omits to state any material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
Such counsel may: (1) express its reliance as to factual
matters on the representations and warranties made by, and on certificates or
other documents furnished by officers of, the parties to this Agreement, the
Trust Agreement, the Indenture, the Sale and Servicing Agreement, the Purchase
Agreement and the Insurance and Indemnity Agreement; (2) assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Company; (3) qualify such
opinion only as to the federal laws of the United States of America, the laws of
the State of New York and the general corporation law of the State of Delaware.
Such counsel shall also confirm that you may rely, on and as of the Closing
Date, on any opinion or opinions of such counsel submitted to the rating agency
or agencies rating the Designated Notes as if addressed to you and dated the
Closing Date.
(c) You shall have received from Dewey Ballantine 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
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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 September 30, 2000, and no such
amendment has been authorized. No event has occurred since
September 30, 2000, which has affected the good standing of
the Company under the laws of the State of New York or the
good standing of the Sponsor under the laws of the State of
Delaware;
f. there has not occurred any material adverse change,
or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the
earnings, business or operations of the Company, the Sponsor
and its subsidiaries, taken as a whole, from September 30,
2000.
g. on or prior to the Closing Date, there has been no
downgrading, nor has any notice been given of (A) any intended
or potential downgrading or (B) any review or possible changes
in rating the direction of which has not been indicated, in
the rating, if any, accorded the Company or its affiliates or
in any rating accorded any securities of the
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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 Tobin & Tobin, 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
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<PAGE>
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.
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<PAGE>
(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.
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<PAGE>
(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 Tobin & Tobin, 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 Tobin & Tobin, 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 PricewaterhouseCoopers LLP,
certified public accountants, one or more letters, including bring-down
letters,
17
<PAGE>
dated the date hereof and satisfactory in form and substance to you and
your counsel, to the effect that such accountants have performed
certain specified procedures regarding certain information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement.
(i) You shall have received a rating letter assigning a rating
to the Designated Notes of "AAA" from Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc. and "Aaa" from
Moody's Investors Service, Inc., which ratings shall not have been
withdrawn.
(j) You shall have received from counsel for the Trustee a
favorable opinion, dated the Closing Date, in form and substance
satisfactory to you and your counsel, to the effect that the Indenture
has been duly authorized, executed and delivered by the Trustee and
constitutes a legal, valid, binding and enforceable agreement of the
Trustee, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights in general and by general principles of equity regardless of
whether enforcement is considered in a proceeding in equity or at law,
and as to such other matters as may be agreed upon by you and the
Trustee.
(k) You shall have received from counsel for the Owner Trustee
a favorable opinion, dated the Closing Date, in form and substance
satisfactory to you and your counsel, to the effect that the Trust
Agreement has been duly authorized, executed and delivered by the Owner
Trustee and constitutes a legal, valid, binding and enforceable
agreement of the Owner Trustee, subject as to enforceability to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights in general and by general principles
of equity regardless of whether enforcement is considered in a
proceeding in equity or at law, and as to such other matters as may be
agreed upon by you and the Owner Trustee.
(l) You shall have received from the Trustee a certificate,
signed by the President, a senior vice president or a vice president of
the Trustee, dated the Closing Date, to the effect that each person
who, as an officer or representative of the Trustee, signed or signs
the Designated Notes, the Indenture or any other document delivered
pursuant hereto, on the date hereof or on the Closing Date, in
connection with the transactions described in the Indenture was, at the
respective times of such signing and delivery, and is now, duly elected
or appointed, qualified and acting as such officer or representative,
and the signatures of such persons appearing on such documents are
their genuine signatures.
(m) You shall have received from the Owner Trustee a
certificate, signed by the President, a senior vice president or a vice
president of the Owner Trustee, dated the Closing Date, to the effect
that each person who, as an officer or representative of the Owner
Trustee, signed or signs the Trust Agreement, the Certificates 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
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Agreement was, at the respective times of such signing and delivery,
and is now, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing
on such documents are their genuine signatures.
(n) The Policy relating to the Designated Notes shall have
been duly executed and issued at or prior to the Closing Date and shall
conform in all material respects to the description thereof in the
Final Prospectus.
(o) You shall have received a favorable opinion of in-house
counsel to 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.
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<PAGE>
(v) The Policy is not required to be registered under
the 1933 Act.
(vi) The information set forth under the caption "The
Insurer and the Policy" in the Prospectus Supplement forming a
part of the Registration Statement, insofar as such statements
constitute a description of the Policy, accurately summarizes
the Policy.
In rendering this opinion, such counsel may rely, as to
matters of fact, on certificates of responsible officers of the Company, the
Trustee, 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 September
30, 2000, 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;
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(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
September 30, 2000;
(iv) The audited balance sheet of the Insurer as of
December 31, 1999 and the related statement of income and
retained earnings for the fiscal year then ended, and the
accompanying footnotes, together with opinion of KPMG LLP, an
independent certified public accountant, copies of which are
included in the Prospectus Supplement, fairly present in all
material respects the financial condition of the Insurer as of
such date and for the period covered by such statements in
accordance with generally accepted accounting principles
consistently applied; the unaudited balance sheet of the
Insurer as of September 30, 2000 and the related statement of
income and retained earnings for the three-month period then
ended, 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 applied consistently with those
principles applied in preparing the December 31, 1999 audited
statements.
(v) to the best knowledge of such officer, since
September 30, 2000, 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.
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(v) Prior to the Closing Date, your counsel shall have been
furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Designated Notes as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of
the conditions, herein contained, and all proceedings taken by the
Company in connection with the issuance and sale of the Designated
Notes as herein contemplated shall be satisfactory in form and
substance to you and your counsel.
(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
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securities laws of the several jurisdictions as provided in Section 5(g) hereof
and of preparing, printing and distributing a Blue Sky Memorandum (including
related fees and expenses of your counsel); (f) any fees charged by securities
rating services for rating the Designated Notes; (g) any fees and expenses of
your counsel, the Trustee, the Trustee's counsel and the Sponsor's and the
Company's counsel incurred in connection with the transactions described herein;
(h) any fees and expenses associated with registering the Designated Notes with
The Depository Trust Company, Clearstream Banking, societe anonyme or the
Euroclear System; (i) any fees and expenses incurred in connection with your or
FGIC'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
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<PAGE>
incorporated therein by reference, and you shall not be obligated to
send or give any supplement or amendment to any document incorporated
therein by reference to any person other than a person to whom you had
delivered such incorporated document or documents in response to a
written request therefor. The foregoing indemnity agreement is in
addition to any liability which each of the Company and the Sponsor may
otherwise have to you or any person who controls you.
(b) You agree to indemnify and hold harmless each of the
Company and the Sponsor, each of its directors, each of its officers
who signed the Registration Statement, and each person, if any, who
controls the Company and the Sponsor within the meaning of Section 15
of the 1933 Act against any and all loss, claim, damage or liability,
or any action in respect thereof, to which the Company, the Sponsor or
any such director, officer or controlling person may become subject,
under the 1933 Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) any
untrue statement or alleged untrue statement of a material fact
contained in the Final Prospectus or (iv) the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each
case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with Underwriter Information, and shall reimburse the
Company and the Sponsor and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the
Company and the Sponsor or any director, officer or controlling person
in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition
to any liability which you may otherwise have to each of the Company
and the Sponsor or any such director, officer or controlling person.
(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
24
<PAGE>
notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by you, if the indemnified parties under
this Section 8 consist of you or any of your controlling persons, or by the
Company, if the indemnified parties under this Section 8 consist of the Company,
the Sponsor, or any of the Company's directors, officers or controlling persons.
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.
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<PAGE>
(d) You agree to deliver to the Company or the Sponsor no
later than the date on which the Prospectus Supplement is required to
be filed pursuant to Rule 424 with a copy of its Derived Information
(defined below) for filing with the Commission on Form 8-K.
(e) You agree, assuming all Company-Provided Information
(defined below) is accurate and complete in all material respects, to
indemnify and hold harmless the Company, the Sponsor, each of the
Company's and the Sponsor's officers and directors and each person who
controls the Company and the Sponsor within the meaning of Section 15
of the 1933 Act against any and all losses, claims, damages or
liabilities, joint or several, to which they may become subject under
the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement of a material fact contained in the Derived
Information provided by you, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by him, her or it in
connection with investigating or defending or preparing to defend any
such loss, claim, damage, liability or action as such expenses are
incurred. Your obligations under this Section 8(e) shall be in addition
to any liability which you may otherwise have.
(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
26
<PAGE>
Derived Information, which is set forth (i) in the next-to-last
sentence of the next-to-last paragraph on page S-1 of the Prospectus
Supplement, (ii) in the first two sentences of the paragraph
immediately preceding the Table of Contents on page S-2 of the
Prospectus Supplement and (iii) in the third paragraph under the
heading "Method of Distribution" of the Prospectus Supplement.
(h) For purposes of this Section 8, the term "Derived
Information" means such portion, if any, of the information delivered
to the Company or the Sponsor by the Underwriter pursuant to Section
8(e) for filing with the Commission on Form 8-K as:
(i) is not contained in the Final Prospectus without
taking into account information incorporated therein by
reference;
(ii) does not constitute Company-Provided Information;
and
(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, Steen & Hamilton 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 "Kidder letter" and together with the PSA Letter, the "No-Action
Letters") of Brown & Wood on behalf of Kidder, 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
27
<PAGE>
and you on the other from the offering of the Designated Notes or (ii)
if the allocation provided by clause (i) above is not permitted by
applicable law or if the indemnified party failed to give the notice
required under Section 8(c), in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and the Sponsor on the one
hand and you on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable
considerations.
The relative benefits to you and the Company and the Sponsor
shall be deemed to be in such proportion so that you are responsible for 0.25%
of the offering price and the Company and the Sponsor are responsible for 99.75%
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 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
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
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<PAGE>
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 600 Steamboat Road, Greenwich,
Connecticut 06830, attention: Legal Department; or, if sent to (i) the Sponsor,
will be mailed, delivered or transmitted by facsimile and confirmed to it at 700
Larkspur Landing Circle, Suite 240, Larkspur, California 94939, attention:
Finance Department or (ii) the Company, will be mailed, delivered or transmitted
by facsimile and confirmed to it at 700 Larkspur Landing Circle, Suite 250,
Larkspur, California 94939, 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.
29
<PAGE>
14. Definition of the Term "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW,
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
16. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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<PAGE>
EXECUTION COPY
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company, the Sponsor and you.
Very truly yours,
GREENPOINT MORTGAGE FUNDING, INC.
By: /s/ Peter Hill
---------------------------------------------
Name: Peter Hill
Title: Senior Vice President
GREENPOINT MORTGAGE SECURITIES INC.
By: /s/ Nathan Hieter
---------------------------------------------
Name: Nathan Hieter
Title: Vice President
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
GREENWICH CAPITAL MARKETS, INC.
By: /s/ Frank Skibo
---------------------------------------
Name: Frank Skibo
Title: Vice President
[Underwriting Agreement]
<PAGE>
EXECUTION COPY
SCHEDULE I
----------
Underwriting Agreement dated December 5, 2000.
As used in this Agreement, the term "Registration Statement" refers to the
Registration Statement on Form S-3 (File No. 333-95349) filed on January 24,
2000 and declared effective by the Commission on February 15, 2000.
Closing Date: December 18, 2000.
--------------------------------------------------------------------------------
Title and Description of Designated Notes:
GreenPoint Home Equity Loan Trust 2000-3, Home Equity Loan
Asset-Backed Securities, Series 2000-3,
o $102,736,000 Class A-1 Variable Rate Notes.
Purchase Price: 99.75%.
o $98,584,000 Class A-2 Variable Rate Notes.
Purchase Price: 99.75%.
o $97,966,000 Class A-3 Variable Rate Notes.
Purchase Price: 99.76%.
<TABLE>
<S> <C>
Pool I Principal Balance as of Cut-Off Date (Relating to Class A-1): $100,721,913
Pool II Principal Balance as of Cut-Off Date (Relating to Class A-2): $ 96,651,865
Pool III Principal Balance as of Cut-Off Date (Relating to Class A-3): $ 96,045,908
</TABLE>
Cut-off Date: November 30, 2000
