EXHIBIT 1.3
GREENPOINT MORTGAGE SECURITIES LLC
Asset-Backed Notes, Series [Deal Name]
Initial Principal Amount
Class
Initial Pass-Through Rate
$[____]
Class A-1 Notes
[___]%
$[____]
Class A-2 Notes
[___]%
$[____]
Class A-3 Notes
[___]%
FORM OF UNDERWRITING AGREEMENT (NOTES/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”)
Asset-Backed
Notes,
Series [Deal Name],
Class A-1,
Class A-2,
Class A-3 Notes
(collectively,
the
“Notes”).
The
Collateral
referred in the Indenture (as defined
below),
consists
primarily of a pool (the “Pool”) of conventional,
fixed-rate,
one- to four-family
residential
first lien and second lien mortgage
loans (the
“Mortgage
Loans”) as described in the
Prospectus
Supplement (as
hereinafter defined) to be sold by the Company.
The Notes will be issued pursuant to indenture
dated as of [________]
[__],
200[__] (the
“Indenture”),
among the Company,
as seller,
GreenPoint
Mortgage
Funding,
Inc.
(“GMFI”),
as servicer,
and [_________],
as
trustee (the
“Trustee”).
The Notes 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 Asset-Backed
Notes (issuable in series),
including the Notes, 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 Notes 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 Notes,
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 any 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
Notes
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 Notes 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 Notes 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 Notes, (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 Notes 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
Notes or the offering hereof.
(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
Note 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 Notes anticipated to be rated
in the highest category by any Rating Agency (collectively, the
"Senior Notes"),
(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
Notes, (iii) the terms and
the provider of any surety bond, financial guaranty insurance
policy, or other insurance policy
regarding any class of the Senior Notes no known to the Company
when the Approved Offering
Materials were prepared, (iv) the allocation to each class of
Senior Notes of the aggregate
amount of the cashflow payable among the Senior Notes collectively,
and (v) the allocation to
each class of the aggregate amount of Senior Notes of any Realized
Losses allocable to the
Senior Notes collectively.
(xi)
“Underwriter Derived Information” shall refer to
information of the type described in clause (5) of such
footnote 271 of the 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
Notes or of the offering of the Notes and the final terms have been
established for all classes
of Senior Notes.
(xiv)
“Written Communication” shall have the meaning given
such term in Rule 405 of the 1933 Act Regulations.
(d)
The Company has been duly
incorporated
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 Note 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 Notes will
conform in all
material
respects
to the
description
thereof contained in the Prospectus and the
representations and warranties of the Company in
the Indenture 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 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)
[reserved].
(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 Notes 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 Notes remain
outstanding.
(d)
[reserved].
(e)
[reserved].
(f)
The
Underwriter
hereby
certifies
that (i) with
respect to any classes of Notes
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 Note 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 Notes
to be maintained on the book-entry
records of The Depository Trust Company (“DTC”),
the interest in each
such class of Notes 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
Notes 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 Notes is
completed,
except for
the
transfer
of funds and the
delivery
of the
Notes.
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.
1.4
[Reserved].
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
Notes at a price equal to [_____]% of the aggregate
certificate
principal
balance of the Notes as of the Closing
Date (as
defined
herein).
There will be added to the
purchase
price of the Notes an amount
equal to
interest
accrued thereon from the Cut-off Date up to but not including the
Closing Date.
3.
Delivery
and
Payment.
Delivery
of and
payment
for the Notes
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 Notes being herein
called the “Closing
Date”).
Delivery of the [Deal Name],
Class A-1,
Class A-2 and Class A-3 Notes shall be made to you through the
Depository
Trust Company
(“DTC”) (such
Notes, the “DTC Registered Notes”).
4.
Offering by Underwriter.
4.1
It is
understood
that you
propose
to
offer
the
Notes
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 Note,
Mortgage
Loans or any
interest in any Note.
4.2
It is understood that you will solicit offers to purchase the Notes
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
Notes;
provided,
that you shall not accept any such
offer to purchase a Note or any
interest
in any Note or Mortgage
Loan or
otherwise
enter into any
Contract of
Sale for any Note,
any interest in any Note or any Mortgage
Loan prior to your
conveyance
of Approved
Offering
Materials to the investor.
(b)
any Written
Communication
relating to the Notes 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
Notes
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 Notes,
supersedes
any
information
contained in any prior
similar
materials
relating to the Notes.
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 Notes
referred
to in this
free
writing
prospectus
and to
solicit
an
offer
to
purchase the Notes,
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
Notes,
until we have
accepted
your offer to
purchase Notes.
The Notes
referred
to in these
materials
are
being
sold
when,
as and if
issued.
The
issuer
is not
obligated
to issue
such
Notes
or any
similar
security and the
underwriter's
obligation to deliver such Notes is subject to
the terms and conditions of the underwriting
agreement with the issuer and the
availability
of such
Notes
when,
as and if
issued by the
issuer.
You are
advised that the terms of the Notes,
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
Notes
may be
split,
combined
or
eliminated),
at any time
prior to
issuance
or
availability
of a final
prospectus.
You are
advised
that
Notes may not be
issued
that
have
the
characteristics
described
in
these
materials.
The
underwriter's
obligation
to sell
such
Notes
to you is
conditioned
on the
mortgage
loans
and
Notes
having
the
characteristics
described
in
these
materials.
If for any reason the
issuer
does not
deliver
such
Notes,
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 Notes 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 Notes 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 Notes,
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 included in any Underwriter
Prepared
Issuer FWP or Underwriter
Free
Writing Prospectus.
(b)
The
Underwriter
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.
(c)
It is understood and agreed that all information
provided by the
Underwriter to or through
Bloomberg or
Intex or similar
entities
for use by
prospective
investors,
or imbedded
in any CDI file
provided to
prospective
investors,
to the
extent
constituting
a Free
Writing
Prospectus,
shall
be
deemed
an
Underwriter Free Writing Prospectus.
(d)
All
Free
Writing
Prospectuses
provided
to
prospective
investors,
whether
or not
filed
with
the
Commission,
shall bear a legend including the following
statement (or a substantially
similar statement
approved by the Company):
“THE
DEPOSITOR
HAS
FILED
A
REGISTRATION
STATEMENT
(INCLUDING
A
PROSPECTUS) WITH THE SECURITIES AND EXCHANGE
COMMISSION (THE SEC) FOR
THE OFFERING TO WHICH THIS COMMUNICATION
RELATES.
BEFORE YOU INVEST,
YOU SHOULD READ THE
PROSPECTUS
IN THAT
REGISTRATION
STATEMENT
AND
OTHER DOCUMENTS THE
DEPOSITOR
HAS
FILED
WITH THE SEC FOR MORE
COMPLETE
INFORMATION
ABOUT THE DEPOSITOR
AND THE OFFERING.
YOU MAY
GET THESE
DOCUMENTS
AT NO CHARGE
BY
VISITING
EDGAR ON THE SEC WEB
SITE AT WWW.SEC.GOV.
ALTERNATIVELY, THE DEPOSITOR, ANY UNDERWRITER OR
ANY DEALER
PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE
PROSPECTUS
AT NO
CHARGE
IF
YOU
REQUEST
IT BY
CALLING
TOLL-FREE
1-8[XX-XXX-XXXX] OR VIA EMAIL AT ______________.
Each of the Underwriter
and the Company shall have the right to request
additional
specific
legends or
notations to appear on any Free Writing
Prospectus and shall have the right to require changes
regarding
the use of
terminology
and the right to determine the types of
information
appearing
therein with the
approval of the other (which shall not be unreasonably withheld).
(e)
The Underwriter shall deliver to the Company and its counsel (in
such format as reasonably required by
the Company), no later than the business day prior to the date of
the required filing under Section
5.10, an Underwriter Prepared Issuer FWP.
To facilitate filing to the extent required by Section 5.10
or 5.11, as applicable, all Underwriter Derived Info
