EXHIBIT 1.1
GREENPOINT MORTGAGE SECURITIES LLC
Mortgage Pass-Through Certificates, Series [Deal Name]
Initial Principal Amount
Class
Initial Pass-Through Rate
$[____]
Class A-1 Certificates
[___]%
$[____]
Class A-2 Certificates
[___]%
$[____]
Class A-3 Certificates
[___]%
$[____]
Class R Certificates
[___]%
FORM OF UNDERWRITING AGREEMENT (CERTIFICATES/ITERATIVE)
[___________] [__], 20[__]
[Underwriter]
Ladies and Gentlemen:
GreenPoint
Mortgage
Securities LLC, a Delaware limited
liability
company (the “Company”),
proposes to
sell to you (also
referred
to herein as the
“Underwriter”)
Mortgage
Pass-Through
Certificates,
Series
[Deal
Name], Class A-1, Class A-2, Class A-3, and Class R Certificates
(collectively,
the “Certificates”),
other than a
de minimis portion of the Class R Certificates,
having the aggregate
principal amounts and Pass-Through Rates set
forth above.
The
Certificates,
together with the Class M-1, Class M-2, Class M-3, Class B-1, Class
B-2 and Class
B-3
Certificates of the same series,
will evidence the entire
beneficial
interest in the Trust Fund (as defined
in the
Pooling
and
Servicing
Agreement
referred
to below),
consisting
primarily
of a pool (the
“Pool”) of
conventional,
fixed-rate,
one- to four-family
residential
first lien mortgage
loans (the “Mortgage
Loans”) as
described in the Prospectus
Supplement (as
hereinafter
defined) to be sold by the Company.
A de minimis portion
of the Class R
Certificates
will not be sold
hereunder and will be held by
GreenPoint
Mortgage
Funding,
Inc.
(“GMFI”).
The
Certificates
will be issued
pursuant to a pooling and servicing
agreement,
dated as of [________]
[__],
200[__] (the “Pooling and
Servicing
Agreement”),
among the Company,
as seller,
GMFI,
as servicer,
and
[_________],
as trustee (the
“Trustee”).
The
Certificates
are described more fully in the Base
Prospectus and
the Prospectus Supplement (each as hereinafter defined), which the
Company has furnished to you.
1.
Representations, Warranties and Covenants.
1.1
The Company represents and warrants to, and agrees with you that:
(a)
The Company has filed with the
Securities
and Exchange
Commission
(the
“Commission”)
a
registration
statement
(No.
333-[_____])
on Form S-3 for the
registration
under
the
Securities
Act of 1933,
as
amended
(the
“Act”),
of
Mortgage
Pass-Through
Certificates
(issuable
in
series),
including
the
Certificates,
which registration
statement has become effective,
and a copy of which, as amended to the
date hereof,
has
heretofore
been
delivered to you.
The Company
proposes to file with the
Commission
pursuant to Rule 424(b) under the rules and
regulations
of the
Commission
under the Act (the “1933 Act
Regulations”) a prospectus
supplement (the “Prospectus
Supplement”),
to the prospectus dated [________]
[__],
200[__]
(the “Base
Prospectus”),
relating
to the
Certificates
and the method of
distribution
thereof.
Such
registration
statement
(No.
333-[________])
including
exhibits
thereto
and
any
information
incorporated
therein by reference,
as amended at the date hereof, is hereinafter called the
“Registration
Statement”;
and the Base
Prospectus
and the Prospectus
Supplement
and any
information
incorporated
therein by reference,
together with any amendment thereof or supplement
thereto authorized
by the
Company
on or prior to the
Closing
Date (as
defined
herein)
for use in
connection
with the
offering of the Certificates, are hereinafter called the
“Prospectus.”
(b)
The Registration
Statement has become effective,
and the Registration Statement as of the effective date
(the
“Effective
Date,”
as
defined
in this
paragraph),
and
the
Prospectus,
as of the
date of the
Prospectus Supplement,
complied in all material respects with the applicable
requirements of the Act and
the 1933 Act Regulations;
and the Registration
Statement,
as of the Effective Date, did not contain any
untrue
statement
of a material
fact and did not omit to state any material
fact
required to be stated
therein or
necessary
to make the
statements
therein
not
misleading;
and each
Issuer
Free
Writing
Prospectus
(as
defined
herein)
as of its
date
did
not and at all
times
prior
to the
date of the
Prospectus
Supplement will not, and the Prospectus,
as of the date of the Prospectus
Supplement did not
and as of the Closing Date will not,
contain an untrue
statement of a material fact and did not and will
not omit to state a material fact necessary in order to make the
statements
therein,
in the light of the
circumstances
under which they were made, not
misleading
(except in the case of any Issuer Free Writing
Prospectus,
any omission
with respect to
information
included in the
definition
of Senior
Structure
Information);
provided,
however,
that
neither
the
Company
nor GMFI
makes
any
representations
or
warranties
as to
the
information
contained
in or
omitted
from
the
Registration
Statement
or the
Prospectus or any amendment
thereof or supplement
thereto
relating to the
information
therein that is
Excluded Information (as defined herein); and provided,
further,
that neither the Company nor GMFI makes
any representations or warranties as to either (i) any information
contained in any Underwriter
Prepared
Issuer FWP (as defined
herein) or Underwriter
Free Writing
Prospectus (as defined
herein)
except,
in
each case, to the extent of (x) any information set forth therein
that
constitutes
Pool
Information (as
defined below) or (y) any
information
accurately
extracted from any Issuer Free Writing
Prospectus and
included in any
Underwriter
Prepared
Issuer FWP or
Underwriter
Free Writing
Prospectus,
or (ii) any
information
contained in or omitted from the portions of the
Prospectus
identified
by
underlining
or
other
highlighting as shown in Exhibit B (the “Underwriter
Information”).
The Effective Date shall mean
the
earlier
of the date on which
the
Prospectus
Supplement
is first
used and the time of the
first
Contract of Sale (as defined herein) to which such Prospectus
Supplement
relates.
The initial effective
date of the
Registration
Statement was within three years of the Closing Date. If the third
anniversary
of the initial
effective
date occurs within six months after the Closing Date, the Company
will use best
efforts to take such action as may be necessary or appropriate
to permit the public
offering and sale of
the Certificates as contemplated
hereunder.
The Company
acknowledges
that the Underwriter
Information
constitutes
the only
information
furnished
in writing by you or on your
behalf for use in
connection
with the preparation of the Registration
Statement or the Prospectus,
and the Underwriter
confirms that
the Underwriter Information is correct.
(c)
(i) “ABS
Informational and
Computational
Materials” shall have the meaning given such term in Item
1101
of Regulation AB.
(ii)
“Approved Offering
Materials” means with respect to any class of Certificates
anticipated to be rated in
the
highest
category
by any
Rating
Agency,
collectively
the
following
documents
as most
recently
provided by the Company and
designated in writing by the Company as Approved
Offering
Materials
prior to the time of any
Contract
of Sale:
(i) one or more term
sheets,
providing
factual
information
about the
Certificates
and the
structure
and basic
parameters
thereof
(excluding
information
about the
subdivision of the senior classes into
tranches),
the basic
terms of the subordination or other credit
enhancements if known,
factual information about the
Mortgage
Loans
(which
may
include
parameters
or “stips” or
tabular
data
prepared
by the
Company),
the identity of and basic
information
about key parties to the transaction
known to
the
Company,
and the tax,
ERISA and SMMEA
characteristics
of the
Certificates,
(ii) a term
sheet
supplement,
containing
risk factors and additional
information of the type to appear in
the
Prospectus
Supplement
to the extent
known,
and (iii) the Base
Prospectus,
which may be
provided by a weblink.
Each of the items
described
in (i) and (ii) in the
preceding
sentence
shall
constitute an Issuer Free Writing
Prospectus and any additional
information
provided by
the Underwriter shall constitute an Underwriter Free Writing
Prospectus or Underwriter
Prepared
Issuer FWP,
as the case may be.
With
respect to any class of
Certificates
anticipated
to be
rated in the
second
highest
or a lower
category
by any
Rating
Agency,
“Approved
Offering
Materials” means the Prospectus.
(iii)
“Contract
of Sale” has the same
meaning as in Rule 159 of the 1933 Act
Regulations
and all
Commission
guidance relating to Rule 159.
(iv)
“Excluded
Information”
shall
mean,
with
respect
to
each
of
the
Registration
Statement
and
the
Prospectus,
the information
identified by underlining or other highlighting as shown on Exhibit
A.
(v)
“Free
Writing
Prospectus”
shall have the
meaning
given such term in Rules 405 and 433 of the 1933 Act
Regulations.
(vi)
“Issuer Free Writing
Prospectus” shall mean any Free Writing
Prospectus
prepared by or on behalf of the
Company and
identified by the Company as an Issuer Free Writing
Prospectus
and relating to the
Certificates or the offering thereof.
(vii)
“Issuer
Information”
shall mean any
information
of the type specified in clauses (1) - (5) of footnote
271 of Commission
Release No.
33-8591
(Securities
Offering
Reform),
other than
Underwriter
Derived
Information.
Consistent with such definition,
“Issuer Information” shall not be deemed
to
include
any
information
in a Free
Writing
Prospectus
solely by reason of the
Company's
review of the
materials
pursuant
to
Section 4.4(e)
below
and,
consistent
with
Securities
Offering
Reform
Questions
and
Answers,
November
30,
2005
promulgated
by the staff of the
Commission,
“Issuer
Information”
shall not be
deemed to
include
any
information
in a Free
Writing
Prospectus
solely
by
reason
that the
Underwriter
has
agreed
not to use such Free
Writing Prospectus without consent of the Company.
(viii)
“Permitted
Additional
Materials” shall mean information that is not ABS
Informational and Computational
Materials
and
(x) that
are
referred
to in Section
4.4(c) so long as any Issuer
Information
provided
by the
Underwriter
pursuant
to Section
4.4(c) is limited
to
information
included
within the definition of ABS
Informational
and
Computational
Materials,
(y) that
constitute
Certificate price, yield,
weighted average life,
subscription or allocation
information,
or a
trade
confirmation,
or
(z) otherwise
with respect to which the Company has
provided
written
consent to the Underwriter to include in a Free Writing Prospectus.
(ix)
“Pool
Information”
means with respect to any Free Writing
Prospectus,
the information
with respect to
the
characteristics
of the Mortgage Loans and administrative and servicing fees, as
provided by
or on behalf of the
Company or GMFI to the
Underwriter
at the time most
recent to the date of
such Free Writing Prospectus.
(x)
"Senior Structure
Information"
shall mean, with respect to each class of Certificates
anticipated to be
rated in the highest
category by any Rating Agency
(collectively,
the "Senior
Certificates"),
(i) the
Pass-Through
Rate if a fixed
rate,
or the formula for
determining
the
Pass-Through
Rate,
(ii) the terms and the
provider of any yield
maintenance
agreement,
swap
agreement or
other agreement that provides
payments
payable on any class of the Senior
Certificates,
(iii)
the terms and the provider of any surety bond,
financial
guaranty
insurance
policy,
or other
insurance
policy
regarding any class of the Senior
Certificates
not known to the Company when
the Approved
Offering
Materials
were
prepared,
(iv) the
allocation
to each class of Senior
Certificates
of the
aggregate
amount of the
cashflow
payable
among the Senior
Certificates
collectively,
and (v) the
allocation
to each
class of Senior
Certificates
of the
aggregate
amount of any Realized Losses allocable to the Senior Certificates
collectively.
(xi)
“Underwriter
Derived
Information” shall refer to information of the type described
in clause (5) of such
footnote 271 of Commission
Release No.
33-8591
(Securities
Offering
Reform) when prepared by
the Underwriter,
including
traditional
computational and analytical
materials prepared by the
Underwriter.
(xii)
“Underwriter Free Writing
Prospectus” shall mean all Free Writing
Prospectuses
prepared by or on behalf
of the
Underwriter
other than any
Underwriter
Prepared
Issuer FWP,
including
any Permitted
Additional Materials.
(xiii)
“Underwriter
Prepared Issuer FWP” shall mean any Free Writing
Prospectus or portion thereof
prepared by
or on behalf of the
Underwriter
that
contains
only a
description
of the final
terms of the
Certificates or of the offering of the
Certificates
after the final terms have been established
for all classes of Senior Certificates.
(xiv)
“Written Communication” shall have the meaning given
such term in Rule 405 of the 1933 Act Regulations.
(d)
The
Company
has been duly
organized
and is validly
existing
as a limited
liability
company in good
standing
under the laws of the State of Delaware and has the requisite
power to own its
properties
and
to conduct its business as presently conducted by it.
(e)
The
Company was not,
as of any date on or after
which a bona fide offer (as used in Rule
164(h)(2)
of
the 1933 Act
Regulations)
of the
Certificate is made an Ineligible
Issuer,
as such term is defined in
Rule 405 of the 1933 Act
Regulations.
The Company shall comply with all applicable
laws and regulations
in connection
with the use of Free Writing
Prospectuses,
including but not limited to Rules 164 and 433
of the 1933 Act Regulations and all Commission guidance relating to
Free Writing
Prospectuses,
including
but not limited to Commission Release No. 33-8591.
(f)
This Agreement has been duly authorized, executed and delivered by
the Company.
(g)
As of the Closing Date (as defined herein) the Certificates
will conform in all material
respects to the
description
thereof contained in the Prospectus and the
representations and warranties of the Company in
the Pooling and Servicing Agreement will be true and correct in all
material respects.
1.2
GMFI represents and warrants to, and agrees with you that as of the
Closing Date the
representations
and
warranties of GMFI in the Pooling and Servicing Agreement will be
true and correct in all material respects.
1.3
The Underwriter represents and warrants to and agrees with the
Company and GMFI that:
(a)
No purpose of the
Underwriter
relating to the purchase of the Class R Certificates by the
Underwriter is
or will be to enable the Company to impede the assessment or
collection of any tax.
(b)
The
Underwriter has no present
knowledge or expectation
that it will be unable to pay any United States
taxes owed by it so long as any of the Certificates remain
outstanding.
(c)
The
Underwriter
has no present
knowledge or expectation
that it will become
insolvent or subject to a
bankruptcy proceeding for so long as any of the Certificates remain
outstanding.
(d)
No purpose of the
Underwriter
relating to any sale of any of the Class R Certificates by the
Underwriter
will be to enable it to impede the
assessment
or
collection
of tax. In this
regard,
the
Underwriter
hereby
represents
to and for the
benefit of the Company
and GMFI that the
Underwriter
intends to pay
taxes
associated
with holding the Class R
Certificates
(other than with respect to the portion of each
of the Class R Certificates
retained by GMFI), as they become due, fully
understanding that it may incur
tax liabilities in excess of any cash flows generated by the Class
R Certificates.
(e)
The Underwriter
will, in connection
with any transfer it makes of the Class R Certificates,
obtain from
its
transferee
the
affidavit
required
by
Section
5.02(f)(i)(B)(I)
of
the
Pooling
and
Servicing
Agreement,
will
not
consummate
any such
transfer
if it knows
or
believes
that any
representation
contained
in such
affidavit
is false and will
provide the
Trustee
with the
Certificate
required by
Section 5.02(f)(i)(B)(II) of the Pooling and Servicing Agreement.
(f)
The
Underwriter
hereby
certifies
that (i) with
respect
to any
classes
of
Certificates
issued
in
authorized
denominations
or
Percentage
Interests
of less than a notional
amount of
$2,000,000
or a
Percentage
Interest of 20% the fair market value of each such
Certificate sold to any person on the date
of initial sale thereof by the
Underwriter
will not be less than
$100,000 and (ii) with respect to each
class of
Certificates
to be
maintained
on the
book-entry
records
of The
Depository
Trust
Company
(“DTC”),
the interest in each such class of
Certificates
sold to any person on the date of initial sale
thereof by the
Underwriter
will not be less than the minimum
denomination
indicated
for such class of
Certificates in the Prospectus Supplement.
(g)
The Underwriter
will have funds available at [_________],
in the
Underwriter's
account at such bank at
the time all documents are executed and the closing of the sale of
the
Certificates is completed,
except
for the
transfer
of funds and the
delivery
of the
Certificates.
Such
funds
will be
available
for
immediate transfer into the account of GMFI maintained at such
bank.
(h)
As of the
date
hereof
and as of
the
Closing
Date,
the
Underwriter
has
complied
with
all of its
obligations
hereunder and all
information
contained in any Underwriter
Free Writing
Prospectus and in
any
Underwriter
Prepared
Issuer FWP as used in connection with any Contract of Sale and all
Underwriter
Information
are accurate in all material
respects
(taking into account the
assumptions
explicitly set
forth in such
Underwriter
Prepared
Issuer FWP or Underwriter
Free Writing
Prospectus),
except to the
extent of (x) any errors
therein that are caused by errors or omissions
in the Pool
Information
or (y)
information
accurately
extracted from any Issuer Free Writing Prospectus and included in
any Underwriter
Prepared Issuer FWP or Underwriter Free Writing Prospectus.
(i)
Prior to the Closing
Date,
the
Underwriter
shall notify the Company and GMFI of the earlier of (x) the
date on which the
Prospectus
Supplement is first used and (y) the time of the first
Contract of Sale to
which
such
Prospectus
Supplement
relates.
(y) the time of the first
Contract
of Sale to which
such
Prospectus Supplement relates.
1.4
The
Underwriter
covenants and agrees to pay
directly,
or reimburse the Company or GMFI upon demand for
(i) any and all taxes
(including
penalties and interest)
owed or asserted to be owed by the Company or GMFI as a
result
of a
claim
by the
Internal
Revenue
Service
that
the
transfer
of the
Class R
Certificates
to the
Underwriter
hereunder or any transfer
thereof by the
Underwriter may be disregarded for federal tax purposes and
(ii) any and all losses,
claims, damages and liabilities,
including attorney's fees and expenses,
arising out of
any failure of the Underwriter to make payment or
reimbursement
in connection with any such assertion as required
in (i)
above.
In
addition,
the
Underwriter
acknowledges
that
on the
Closing
Date
immediately
after
the
transactions
described
herein it will be the owner of the Class R Certificates
(other than a de minimis
portion
of the Class R Certificates
to be held by GMFI) for federal tax purposes,
and the
Underwriter
covenants that it
will not
assert
in any
proceeding
that the
transfer
of the
Class R
Certificates
from
the
Company
to the
Underwriter should be disregarded for any purpose.
2.
Purchase
and Sale.
Subject to the terms and
conditions
and in reliance
upon the
representations
and
warranties
herein set forth,
the Company
agrees to sell to you, and you agree to purchase from the Company,
the
Certificates
(other
than a de minimis
portion of the Class R
Certificates,
which shall be
transferred
by the
Company to GMFI) at a price equal to [_____]% of the aggregate
certificate
principal
balance of the Certificates
as of the Closing
Date (as defined
herein).
There will be added to the
purchase
price of the
Certificates
an
amount equal to interest
accrued
thereon
from the Cut-off Date up to but not
including
the Closing
Date.
The
purchase
price for the
Certificates
was agreed to by the Company in reliance
upon the transfer from the Company
to the Underwriter of the tax liabilities associated with the
ownership of the Class R Certificates.
3.
Delivery
and
Payment.
Delivery
of and
payment
for the
Certificates
shall be made at the
office of
Orrick,
Herrington & Sutcliffe LLP at 10:00 a.m.,
New York City time, on [________]
[__],
200[__] or such later
date as you shall
designate,
which date and time may be postponed by agreement
between you and the Company (such
date and time of delivery and payment for the
Certificates
being herein called the “Closing
Date”).
Delivery of
the [Deal
Name],
Class A-1,
Class A-2 and Class A-3
Certificates
shall be made to you through
the
Depository
Trust
Company
(“DTC”)
(such
Certificates,
the “DTC
Registered
Certificates”),
and
delivery
of the Class R
Certificates (the “Definitive
Certificates”) shall be made in registered,
certificated form, in each case against
payment by you of the purchase
price thereof to or upon the order of the Company by wire
transfer in
immediately
available funds.
The Definitive
Certificates
shall be registered in such names and in such
denominations as you
may
request
not less than two
business
days in advance of the
Closing
Date.
The
Company
agrees to have the
Definitive
Certificates
available for
inspection,
checking and packaging by you in New York, New York not later
than 9:00 a.m. on the Closing Date.
4.
Offering by Underwriter.
4.1
It is
understood
that you propose to offer the
Certificates
for sale to the public as set forth in the
Prospectus
and you agree that all such
offers and sales by you shall be made in
compliance
with all
applicable
laws and
regulations.
Prior
to the date of the
first
Contract
of Sale
made
based on the
Approved
Offering
Materials,
you have not pledged,
sold,
disposed of or otherwise
transferred any Certificate,
Mortgage Loans or
any interest in any Certificate.
4.2
It is understood that you will solicit offers to purchase the
Certificates as follows:
(a)
Prior to the time you have
received the
Approved
Offering
Materials
you may, in
compliance
with the
provisions of this
Agreement,
solicit offers to purchase
Certificates;
provided,
that you shall not accept any
such offer to purchase a Certificate or any interest in any
Certificate
or Mortgage Loan or otherwise
enter into
any Contract of Sale for any
Certificate,
any
interest in any
Certificate
or any
Mortgage
Loan prior to your
conveyance of Approved Offering Materials to the investor.
(b)
any Written
Communication
relating to the
Certificates
made by an Underwriter
in compliance
with the
terms of this Agreement
prior to the time such
Underwriter
has entered into a Contract of Sale for
Certificates
with the recipient shall
prominently set forth the following
statements (or a
substantially
similar
statements
approved by the Company):
The information in this free writing prospectus,
if conveyed prior to the time
of your contractual commitment to purchase any of the Certificates,
supersedes
any
information
contained
in any prior
similar
materials
relating
to the
Certificates.
The information in this free writing
prospectus is preliminary,
and is subject to completion or change.
This free writing
prospectus is being
delivered to you solely to provide you with
information
about the offering of
the Certificates
referred to in this free writing prospectus and to solicit an
offer to purchase the Certificates,
when, as and if issued.
Any such offer to
purchase
made
by
you
will
not
be
accepted
and
will
not
constitute
a
contractual
commitment
by you to purchase any of the
Certificates,
until we
have accepted your offer to purchase Certificates.
The Certificates
referred to in these materials are being sold when, as and if
issued.
The issuer is not obligated to issue such
Certificates or any similar
security
and the
underwriter's
obligation
to deliver such
Certificates
is
subject to the terms and
conditions
of the
underwriting
agreement
with the
issuer and the availability of such Certificates
when, as and if issued by the
issuer.
You
are
advised
that
the
terms
of
the
Certificates,
and
the
characteristics
of the mortgage loan pool backing them, may change (due, among
other things,
to the
possibility
that mortgage
loans that comprise the pool
may become
delinquent
or
defaulted
or may be removed or
replaced
and that
similar or different
mortgage
loans may be added to the pool, and that one or
more classes of
Certificates
may be split,
combined or
eliminated),
at any
time prior to issuance or availability of a final
prospectus.
You are advised
that Certificates may not be issued that have the characteristics
described in
these
materials.
The
underwriter's
obligation to sell such
Certificates to
you
is
conditioned
on
the
mortgage
loans
and
Certificates
having
the
characteristics
described
in these
materials.
If for any
reason the issuer
does not deliver
such
Certificates,
the
underwriter
will
notify you,
and
neither
the
issuer nor any
underwriter
will have any
obligation
to you to
deliver
all or any portion of the
Certificates
which you have
committed
to
purchase,
and none of the
issuer nor any
underwriter
will be liable for any
costs or damages whatsoever arising from or related to such
non-delivery.
4.3
It is
understood
that you will not enter into a Contract of Sale with any
investor
until the
Approved
Offering
Materials
have been conveyed to the investor with respect to the
Certificates
which are the subject of
such Contract of Sale.
4.4
It is
understood
that you may
prepare
and
provide
to
prospective
investors
certain
Free
Writing
Prospectuses, subject to the following conditions:
(a)
Unless
preceded or accompanied by a prospectus
satisfying the
requirements of Section 10(a) of the Act,
the
Underwriter
shall not convey or deliver any Written
Communication
to any person in connection with
the initial offering of the
Certificates,
unless such Written
Communication
(i) is made in reliance on
Rule 134 under the Act, (ii)
constitutes a prospectus
satisfying the requirements of Rule 430B under the
Act or (iii)
constitutes
a Free
Writing
Prospectus
(as defined in Section
1.1(c)
above)
consisting
solely
of
(x) information
of
a
type
included
within
the
definition
of
ABS
Informational
and
Computational
Materials
(as
defined
below),
(y) Permitted
Additional
Materials
or (z)
information
accurately
extracted
from any Issuer Free Writing
Prospectus and incl
