EXHIBIT 1
GREENPOINT CREDIT CORP. MANUFACTURED HOUSING CONTRACT
TRUST PASS-THROUGH CERTIFICATES, SERIES 1998-1
UNDERWRITING AGREEMENT
November 17, 1998
Credit Suisse First Boston Corporation
(for itself and the other Underwriters named
in Schedule I hereto)
Eleven Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
GreenPoint Credit Corp. ("GreenPoint" or the "Contract Seller"), proposes,
subject to the terms and conditions stated in this Underwriting Agreement (the
"Underwriting Agreement"), to sell to the underwriters named in Schedule I
hereto (the "Underwriters") certain of its GreenPoint Credit Corp. Manufactured
Housing Contract Trust Pass-Through Certificates, Series 1998-1 (the
"Certificates"), as specified in Schedule II hereto (the "Offered
Certificates"), to be issued pursuant to a Pooling and Servicing Agreement (the
"Agreement") to be dated as of November 1, 1998 by and among, GreenPoint Credit
Corp., as a Contract Seller and Servicer, and The First National Bank of
Chicago, as Trustee (the "Trustee"). The "Cut-Off Date" shall be the close of
business on October 31, 1998. The Certificates will be executed by the Trustee
and will evidence undivided interests in the Trust Fund (as defined in the
Agreement) consisting primarily of a pool (the "Pool") of manufactured housing
installment sales contracts and installment loan agreements (the "Contracts")
sold by the Contract Seller to the Trust Fund pursuant to the Agreement, and
listed in an exhibit to the Agreement. The Certificates are described more fully
in the Prospectus (which term is defined below), which the Contract Seller is
furnishing to you. The Offered Certificates will have the benefit of a
certificate insurance policy (the "Policy") issued by MBIA Insurance
Corporation, a monoline stock insurance corporation organized under the laws of
the State of New York (the "Certificate Insurer") pursuant to an insurance and
reimbursement agreement dated as of November 30, 1998 (the "Insurance
Agreement") among the Certificate Insurer, GreenPoint Bank, the Trustee and the
Seller.
Section 1. Representations and Warranties. The Contract Seller represents
------------------------------
and warrants to, and agrees with, each Underwriter that:
(a) It has caused to be filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-59731) on Form S-3, as
amended by Pre-Effective Amendment No. 1 thereto, dated July 23, 1998, by Pre-
Effective Amendment No. 2 thereto, dated November 12, 1998 and Pre-Effective
Amendment No. 3, dated November 16,
1998, for the registration under the Securities Act of 1933, as amended (the
"Act"), of the Offered Certificates, which registration statement has become
effective on November 17, 1998 (the "Effective Date") and copies of which have
heretofore been delivered to you, and pursuant to Rule 424 a preliminary
prospectus supplement dated November 16, 1998, a copy of which has been
delivered to you. It proposes to cause to be filed with the Commission pursuant
to Rule 424 under the Act a final prospectus supplement, dated the date
specified in Schedule II hereto, relating to the Offered Certificates and the
method of distribution thereof, and has previously advised you of all further
information (financial and other) with respect to the Offered Certificates set
forth therein. Such registration statement, including the exhibits thereto and
any documents incorporated by reference therein, as amended or incorporated by
reference as of the date hereof, and the information deemed to be part thereof
pursuant to Rule 430A(b) under the Act, is hereinafter called the "Registration
Statement;" the prospectus included therein (including all documents
incorporated by reference therein), in the form in which it will be filed with
the Commission pursuant to Rule 424 under the Act, is hereinafter called the
"Base Prospectus;" the supplement to the Base Prospectus, in the form in which
it will be filed with the Commission pursuant to Rule 424 of the Act, is
hereinafter called the "Prospectus Supplement;" and the Base Prospectus and the
Prospectus Supplement together are hereby called the "Prospectus." Any
preliminary form of the Prospectus Supplement which has heretofore been filed
pursuant to Rule 402(a) or Rule 424 is hereinafter called a "Preliminary
Prospectus Supplement." It will not, without your prior consent, file any other
amendment to the Registration Statement or make any change in the Base
Prospectus or the Prospectus Supplement until after the period in which a
prospectus is required to be delivered to purchasers of the Offered Certificates
under the Act. All references in this Underwriting Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include the filing of any document under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). The Contract Seller meets the
requirements for use of Form S-3 under the Act at all relevant times and the
conditions of Rule 415 under the Act have been satisfied with respect to the
Registration Statement.
To the extent that any Underwriter (i) has provided to the Contract Seller
Collateral term sheets (as hereinafter defined) that such Underwriter has
provided to a prospective investor, the Contract Seller 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 Contract Seller
Structural term sheets or Computational Materials (each as defined below) that
such Underwriter has provided to a prospective investor, the Contract Seller
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 Prospectus is filed with the Commission
pursuant to Rule 424 of the Rules and Regulations.
(b) As of the date hereof, when the Registration Statement became
effective, when the Prospectus Supplement is first filed pursuant to Rule 424
under the Act, when, after the date hereof and prior to the Closing Date (as
defined in Schedule II hereto), any amendment to the Registration Statement
becomes effective, when any supplement to the Prospectus Supplement is
2
filed with the Commission, and at the Closing Date, (i) the Registration
Statement, as amended as of any such time, and the Prospectus, as amended or
supplemented as of any such time, complied or will comply in all material
respects with the applicable requirements of the Act and the rules thereunder
and (ii) the Registration Statement, as amended as of any such time, did not and
will not contain any untrue statement of a material fact and did not and will
not omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and the Prospectus (other than
the information under the heading "MBIA Insurance Corporation" and the heading
"Experts" in the Prospectus Supplement), as amended or supplemented as of any
such time, did not and 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; provided, however, it makes no 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 made
in reliance upon and in conformity with written information furnished to the
Contract Seller by you, or by any Underwriter through you, specifically for use
in the preparation thereof.
(c) It is a Delaware corporation, duly organized and validly existing under
the laws of the State of Delaware, with full power and authority to conduct its
business as currently operated, and to enter into and perform its obligations
under this Underwriting Agreement and the Agreement and it is conducting its
manufactured housing business so as to comply in all material respects with all
applicable statutes, ordinances, rules and regulations of the jurisdictions in
which it is conducting such business and where the failure to so comply would
have a material adverse effect on the transactions contemplated hereunder or its
ability to perform its obligations under the Agreement.
(d) It is not aware of (i) any request by the Commission for any further
amendment of the Registration Statement or the Prospectus or for any additional
information, (ii) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose or (iii) any notification with
respect to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(e) At or prior to the Closing Date, it will have entered into the
Agreement; it has duly authorized, executed and delivered this Underwriting
Agreement and the Agreement; when delivered by the Contract Seller, this
Underwriting Agreement and the Agreement will have been duly authorized,
executed and delivered by it and will constitute a valid and binding agreements
of the Contract Seller, enforceable against it in accordance with its terms,
except that the enforceability thereof may be subject to: (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally; (ii) general principles of
equity regardless of whether enforcement is sought in a proceeding of equity or
at law; and (iii) limitations of public policy under applicable securities laws
as such relate to the enforceability of rights to indemnity under the Agreement
or this Underwriting Agreement.
3
(f) The Certificates and the Agreement conform in all material respects to
the descriptions thereof contained in the Prospectus. As of the Closing Date,
the Offered Certificates will be duly and validly executed and delivered by it,
and will, when duly and validly authenticated by the Trustee and delivered to
you in accordance with this Underwriting Agreement and the Agreement, be
entitled to the benefits of the Agreement.
(g) As of the Closing Date, the representations and warranties of the
Contract Seller set forth in Section 3.01 of the Agreement will be true and
correct in all material respects.
(h) Neither the issuance and sale of the Offered Certificates, nor the
consummation by the Contract Seller of any other transactions contemplated in
this Underwriting Agreement, nor the fulfillment of the terms of the Agreement
or this Underwriting Agreement will result in the breach of any term or
provision of the articles of association or by-laws of the Contract Seller or
conflict with, result in a material breach, violation or acceleration of or
constitute a default under, the terms of any indenture or other agreement or
instrument to which it or any of its subsidiaries is a party or by which it is
bound, or any statute, order or regulation applicable to the Contract Seller or
any of its subsidiaries of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Contract Seller or any of its
subsidiaries. Neither the Contract Seller nor any of its subsidiaries is 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, which materially and adversely affects the ability of the
Contract Seller to perform its obligations under the Agreement.
(i) There are no actions or proceedings against, or investigations of, the
Contract Seller pending, or, to the knowledge of the Contract Seller,
threatened, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Underwriting Agreement, the Agreement or the
Certificates, (ii) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this Underwriting
Agreement or the Agreement, (iii) which are reasonably likely to be adversely
determined and which might materially and adversely affect the performance by
the Contract Seller of its obligations under, or the validity or enforceability
of, this Underwriting Agreement, the Agreement or the Certificates or (iv)
seeking to affect adversely the federal income tax attributes of the Offered
Certificates described in the Prospectus.
(j) There has not been any material adverse change in its business,
operations, financial condition, properties or assets since the date of its
latest quarterly financial statement which would have a material adverse effect
on its ability to perform its obligations under the Agreement.
(k) Any taxes, fees and other governmental charges in connection with the
execution and delivery of this Underwriting Agreement and the Agreement and the
execution, delivery and sale of the Offered Certificates have been or will be
paid at or prior to the Closing Date.
4
(l) Immediately prior to the assignment of the Contracts sold by it to the
Trustee, as contemplated by the Agreement, it will have the power and authority
to sell such Contracts to the Trustee, and upon the execution and delivery of
the Agreement by the Trustee, the Trustee will have acquired all of its right,
title and interest in and to the Contracts.
(m) Neither it nor the Trust Fund is, and neither the issuance and sale of
the Certificates nor the activities of the Trust Fund pursuant to the Agreement
will cause the Contract Seller or the Trust Fund to be an "investment company"
or under the control of an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(n) All approvals, authorizations, consents, orders or other actions of any
person, corporation or other organization, or of any court, governmental agency
or body or official (except with respect to the state securities or Blue Sky
laws of various jurisdictions), which would have a material effect on the
transaction contemplated by this Agreement or the Agreement required in
connection with the valid and proper authorization, issuance and sale of the
Offered Certificates pursuant to this Agreement has been or will be taken or
obtained on or prior to the applicable Closing Date.
Section 2. Purchase and Sale. Subject to the terms and conditions and in
-----------------
reliance upon the representations and warranties herein set forth, the Contract
Seller agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Contract Seller, the amount of
the Offered Certificates set forth opposite each such Underwriter's name in
Schedule I hereto. The purchase price for the Offered Certificates as a
percentage of the principal balance of the Contracts as of the Cut-Off Date is
set forth in Schedule II hereto. There will be added to the purchase price of
the Offered Certificates interest in respect of the Offered Certificates at the
pass-through rate applicable to the Offered Certificates as specified in, and
during the period stated on, Schedule II.
Section 3. Delivery and Payment. Delivery of and payment for the Offered
--------------------
Certificates shall be made at the date, location and time of delivery set forth
in Schedule II hereto, or such later date as the Underwriters shall designate,
which date and time may be postponed by agreement between the Underwriters and
the Contract Seller or as provided in Section 9 hereof (such date, location and
time of delivery and payment for the Offered Certificates being herein called
the "Closing Date"). Delivery of the Offered Certificates shall be made to the
Underwriters against payment by the Underwriters of the purchase price thereof
to or upon the order of the Contract Seller in immediately available funds as
specified in Schedule II hereto. The Offered Certificates to be so delivered
shall be in definitive, fully registered form, unless otherwise agreed, in such
denominations and registered in the name of Cede & Co., as nominee of The
Depository Trust Company, unless otherwise specified by the Contract Seller in
writing not less than three full business days in advance of the Closing Date.
The Contract Seller agrees to have the Offered Certificates available for
inspection and checking by the Underwriters in New York, New York, not later
than 1:00 p.m. on the business day prior to the Closing Date.
5
Section 4. Offering by Underwriters. It is understood that the Underwriters
------------------------
propose to offer the Offered Certificates for sale to the public as set forth in
the Prospectus.
Section 5. Agreements. The Contract Seller agrees with the Underwriters
----------
that:
(a) It will prepare a supplement to the Base Prospectus setting forth the
amount of Offered Certificates covered thereby and the terms thereof not
otherwise specified in the Base Prospectus, the expected proceeds to the
Contract Seller from the sale of such Offered Certificates, and such other
information as the Underwriters and the Contract Seller may deem appropriate in
connection with the offering of such Offered Certificates. It will promptly
advise the Underwriters (i) when the 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, (iii) of
any request by the Commission for any amendment to the Registration Statement or
the Prospectus or 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 the institution or threatening of any proceeding for that purpose,
(vi) of the receipt by the Contract Seller of any notification with respect to
the suspension of the qualification of the Offered Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
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 to make the statements therein not misleading. The Contract Seller
will not file any amendment to the Registration Statement or supplement to the
Prospectus unless it has furnished you with a copy for your review prior to
filing and will not file any such proposed amendment or supplement to which you
reasonably object until after the period in which a prospectus is required to be
delivered to purchasers of the Offered Certificates under the Act. Subject to
the foregoing sentence, it will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424 under the Act by
any means reasonably contemplated to result in compliance with said Rule. It
will use its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If at any time when a prospectus relating to the Offered Certificates
is required to be delivered under the Act, any event occurs, as a result of
which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact 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
Prospectus to comply with the Act or the rules under the Act, it will promptly
prepare and file with the Commission, 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, it will use its best efforts to cause such amendment of the
Registration Statement to be made effective as soon as possible.
6
(c) It will furnish to the Underwriters and counsel for the Underwriters,
without charge, a signed copy of the Registration Statement and each amendment
thereto (including exhibits thereto) and as many copies of the Registration
Statement and each amendment thereto (without exhibits thereto) as the
Underwriters may reasonably request and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Act, as many copies of the Base
Prospectus, the Preliminary Prospectus Supplement, if any, and the Prospectus
Supplement and any amendments and supplements thereto as the Underwriters may
reasonably request.
(d) So long as the Offered Certificates shall be outstanding, it will cause
the Servicer to deliver to the Underwriters the annual statement as to
compliance and the annual statement of a firm of independent public accountants,
furnished to the Trustee by the Servicer pursuant to Sections 4.20 and 4.21 of
the Agreement, as soon as such statements are furnished to the Trustee.
(e) It will furnish such information, execute such instruments and take
such action, if any, as may be required to qualify the Offered Certificates for
sale under the laws of such jurisdictions as the Underwriters may designate, and
will maintain such qualification in effect so long as required for the
distribution of the Offered Certificates; provided, however, that it shall not
be required to qualify to do business in any jurisdiction where it is not now so
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 so subject.
(f) It will pay all costs and expenses in connection with the transactions
contemplated hereby, including, but not limited to, the fees and disbursements
of its counsel; the costs and expenses of printing (or otherwise reproducing)
and delivering the Agreement and the Offered Certificates; accounting fees and
disbursements; the costs and expenses in connection with the qualification or
exemption of the Offered Certificates under state securities or blue sky laws
(including filing fees but not fees and disbursements of counsel in connection
therewith) in connection with the preparation of any blue sky survey and in
connection with any determination of the eligibility of the Offered Certificates
for investment by institutional investors; the expenses of printing any such
blue sky survey; the cost and expenses in connection with the preparation,
printing and filing of the Registration Statement (including exhibits thereto),
the Base Prospectus, any Preliminary Prospectus Supplement and the Prospectus
Supplement, the preparation and printing of this Underwriting Agreement and the
furnishing to the Underwriters of such copies of each Preliminary Prospectus
Supplement and Prospectus Supplement as the Underwriters may reasonably request
and the fees of rating agencies. Except as provided in Section 7 hereof, the
Underwriters shall be responsible for paying all costs and expenses incurred by
them in connection with their purchase and sale of the Offered Certificates,
including the fees of counsel to any Underwriter.
(g) The Contract Seller will, while the Offered Certificates are
outstanding and you or any other Underwriter is making a secondary market in
such Certificates, furnish to you, and upon request of any other Underwriter,
such other information with respect to the related Trust or its financial
condition or results of operations, as such Underwriter may reasonably request,
7
including but not limited to information necessary or appropriate to the
maintenance by you or such other Underwriter of a secondary market in such
Certificates.
(h) During the period when a prospectus is required by law to be delivered
in connection with the sale of the Offered Certificates, the Contract Seller
will file, or cause the Trustee to file on behalf of the related Trust, on a
timely and complete basis, all documents that are required by the related Trust
with the Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
Section 6. Conditions to the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the Underwriters to purchase the Offered Certificates as provided
in this Underwriting Agreement shall be subject to the accuracy of the
representations and warranties on the part of the Contract Seller contained
herein as of the date hereof and the Closing Date, the accuracy of the
statements of the Contract Seller made in any officer's certificate pursuant to
the provisions hereof, the performance by the Contract Seller of its obligations
hereunder, and the following additional conditions with respect to the Offered
Certificates:
(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; no proceedings for
that purpose shall have been instituted or, to the best knowledge of the
Contract Seller, threatened; and the Prospectus Supplement shall have been filed
or transmitted for filing with the Commission in accordance with Rule 424 under
the Act.
(b) The Contract Seller shall have delivered to you a certificate, dated
the Closing Date, of any Vice President, Assistant Treasurer or any Assistant
Secretary thereof to the effect that the signer of such certificate has
carefully examined this Underwriting Agreement, the Registration Statement and
the Prospectus and that: (i) the representations and warranties made by it in
this Underwriting Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date, (ii)
it has complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing Date, (iii) no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or, to the knowledge of
such signer, threatened, and (iv) nothing has come to such signer's attention
that would lead such signer to believe that the Prospectus contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) The Underwriters shall have received from Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, counsel for the Contract Seller, a favorable opinion, dated the
Closing Date and in form and substance satisfactory to counsel for the
Underwriters and substantially in the form of Exhibit A hereto.
In addition, Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP shall state that they have
participated in conferences with your representatives and with representatives
of the Contract Seller concerning
8
the Registration Statement and the Prospectus and have considered the matters
required to be stated therein and the statements contained therein, although
such counsel need not independently verified the accuracy, completeness or
fairness of such statements. Based upon and subject to the foregoing, such
counsel shall state that nothing has come to its attention to cause it to
believe that the Registration Statement (excluding any exhibits filed
therewith), as of the Effective Date, 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, that the Prospectus,
as of the date of the Prospectus Supplement and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or omits
to state a 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 (it being understood that such counsel have not been requested to
and such counsel does not make any comment in this paragraph with respect to the
financial statements, schedules and other financial and statistical information
contained in the Registration Statement or the Prospectus).
(d) The Underwriters shall have received from internal counsel for the
Contract Seller, a favorable opinion, dated the Closing Date and in form and
substance satisfactory to counsel for the Underwriters and substantially in the
form of Exhibit B hereto.
(e) The Underwriters shall have received the favorable opinion, dated the
Closing Date, of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx, special counsel to the Contract
Seller, addressed to the Seller, the Certificate Insurer and the Underwriters
and satisfactory to the Rating Agencies, with respect to certain matters
relating to the transfer of the Mortgage Loans to the Trustee, and such counsel
shall have consented to reliance on such opinion by the Rating Agencies as
though such opinion had been addressed to them.
(f) The Underwriters shall have received from Xxxxx & Wood LLP, counsel for
the Underwriters, a favorable opinion, dated the Closing Date and in form and
substance satisfactory to the Underwriters.
(g) The Underwriters shall have received from PricewaterhouseCoopers LLP
certified public accountants, a letter dated the Closing Date and satisfactory
in form and substance to the Underwriters and counsel for the Underwriters, to
the effect that they have performed certain specified procedures, as a result of
which they determined that the information of an accounting, financial or
statistical nature set forth in the Base Prospectus under the headings "The
Seller" and "Prepayment and Yield Considerations" and in the Prospectus
Supplement under the headings "The Seller" and "Prepayment and Yield
Considerations" agrees with the records of the Contract Seller or the Servicer,
as the case may be.
(h) The Underwriters shall have received from PricewaterhouseCoopers, LLP
certified public accountants, a letter dated the Closing Date and satisfactory
in form and substance to the Underwriters and counsel for the Underwriters, to
the effect that they have performed certain specified procedures and
computations, as a result of which they have determined that the information of
an accounting, financial or statistical nature set forth in the
9
Prospectus Supplement under the headings "The Contract Pool," "The Seller" and
"Prepayment and Yield Considerations" agrees with such computations.
(i) The Underwriters shall have received (i) from Xxxxx'x Investors
Service, Inc., a rating letter assigning a rating of Aaa to the Class I A and
Class II A Certificates; and (ii) from Standard & Poor's Ratings Services a
rating letter assigning a rating of AAA to the Class I A and Class II A
Certificates, which ratings shall not have been withdrawn.
(j) The Underwriters shall have received from counsel to the Trustee, a
favorable opinion dated the Closing Date and in form and substance satisfactory
to counsel for the Underwriters.
(k) The Underwriters shall have received from counsel to MBIA Insurance
Corporation, a favorable opinion dated the Closing Date and in form and
substance satisfactory to counsel for the Underwriters.
(l) There shall not have been any material adverse change in the Contract
Seller's business, operations, financial condition, properties or assets since
the date of its latest quarterly financial statement, which change would have a
material adverse effect on its ability to perform its obligations under the
Agreement.
Section 7. Reimbursement of Underwriters' Expenses. If the sale of any
---------------------------------------
Offered Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 hereof
is not satisfied, provided, however, that the Contract Seller shall have no
obligation to reimburse the Underwriters pursuant to this Section 7 if such
condition was not satisfied as a result of the actions of the Underwriters,
their agents or their counsel, or because of any refusal, inability or failure
on the part of the Contract Seller to perform any agreement herein or therein or
comply with any provision hereof or thereof, other than by reason of a default
by any of the Underwriters, the Contract Seller will reimburse the Underwriters
severally upon demand for all reasonable and documented out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of such
Offered Certificates.
Section 8. Indemnification and Contribution.
--------------------------------
(a) The Contract Seller will indemnify and hold harmless each Underwriter
and its respective directors, officers, agents and employees against claims,
damages, or liabilities, joint or several, to which each such Underwriter or
director, officer, agent or employee thereof may become subject, under the Act
or otherwise, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any part of the
Registration Statement when such part became effective, or in the Registration
Statement, any Preliminary Prospectus Supplement, the Prospectus, or any
amendment or supplement thereto 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 not misleading, and will
reimburse each Underwriter
10
and their respective directors, officers, agents and employees for any
reasonable and documented legal or other expenses incurred by such Underwriter
or director, officer, agent or employee thereof, as incurred, in connection with
investigating or defending against such loss, claim, damage, liability or
action; provided, however, (i) that the Contract Seller shall not be liable in
any such case to the extent that any such loss, claim, damage, or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Contract Seller by you, or by any
Underwriter through you, specifically for use therein, and (ii) such indemnity
with respect to any Preliminary Prospectus or Preliminary Prospectus Supplement
shall not inure to the benefit of any Underwriter (or any person controlling any
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Offered Certificates which are the subject thereof if
such person did not receive a copy of the Prospectus (or the Prospectus as
amended or supplemented) at or prior to the confirmation of the sale of such
Offered Certificates to such person in any case where such delivery is required
by the Act and the untrue statement or omission of a material fact contained in
such Preliminary Prospectus or Preliminary Prospectus Supplement was corrected
in the Prospectus (or the Prospectus as amended or supplemented).
(b) Each Underwriter, severally but not jointly, will indemnify and hold
harmless the Contract Seller and its respective directors, officers, agents and
employees against any losses, claims, damages, or liabilities to which the
Contract Seller or director, officer, agent or employee thereof may become
subject, under the Act or otherwise, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
part of the Registration Statement when such part became effective, or in any
Preliminary Prospectus Supplement, the Prospectus, or any amendment or
supplement thereto 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 not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made therein in reliance upon and
in conformity with written information furnished to the Contract Seller by you,
or by such Underwriter through you, specifically for use therein, and will
reimburse the Contract Seller and its respective directors, officers, agents and
employees for any reasonable and documented legal or other expense incurred by
the Contract Seller or director, officer, agent or employee thereof, as
incurred, in connection with investigating or defending against any such loss,
claim, damage, liability or action.
Each Underwriter, severally but not jointly, shall indemnify and hold
harmless the Contract Sellers and their respective directors, officers, agents
and employees against any and all losses, claims, damages or liabilities, joint
or several, to the extent that such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
of a material fact contained in any Collateral Term Sheet, Structural Term Sheet
or Computational Materials (or based on an omission to state any material fact
necessary to make any statement contained therein not misleading), when read
together with the Prospectus (assuming for this purpose that the Prospectus does
not omit to state any material fact necessary
11
to make any statement contained in the Prospectus not misleading), furnished by
such Underwriter to the Contract Seller specifically for inclusion in a current
report on Form 8-K to be filed by or on behalf of the Contract Seller on or
about November __, 1998 and such Underwriter shall in each case reimburse the
Contract Seller and its respective directors, officers, agents and employees for
any reasonable and documented legal or other expenses incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that such Underwriter shall not be
-------- -------
liable in any such case to the extent that any such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished by the Contract Sellers to such
Underwriter in respect of the Contracts. Such Underwriter's liability under this
Section 8(b) shall be in addition to any liability that such Underwriter may
otherwise have (arising from such statement or omission). Such Underwriter
confirms that the Collateral Term Sheets, Structural Term Sheets and
Computational Materials so furnished to the Contract Sellers constitute all the
Collateral Term Sheets, Structural Term Sheets and Computational Materials
furnished by such Underwriter to prospective purchasers of the Offered
Certificates. Computational Materials are computer-generated tables and/or
charts displaying, with respect to any class or classes of Certificates, any of
the following: yield; average life; duration; expected maturity; interest rate
sensitivity; loss sensitivity; cash flow characteristics; background information
regarding the Contracts; the proposed structure; decrement tables; or similar
information (tabular or otherwise) of a statistical, mathematical, tabular or
computational nature. The terms "Collateral Term Sheet" and "Structural Term
Sheet" shall have the respective meanings assigned to them in the February 13,
1995 letter of Cleary, Gottlieb, Xxxxx & Xxxxxxxx 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, shall also include any subsequent collateral term sheet that reflects a
substantive change in the information presented.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8 except to the extent that the failure of the indemnified party to
notify the indemnifying party prejudices the rights of the indemnifying party.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party (which may
be counsel representing the indemnifying party); provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal
12
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to local counsel), approved by the
Underwriters in the case of Subsection (a) of this Section 8, representing the
indemnified parties under such Subsection (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). In the event a party settles any claim or action for which
it would otherwise be indemnified against pursuant to Section 8 without the
consent of the indemnifying party, such indemnified party shall waive any rights
to indemnification hereunder in connection with such claim or action; provided,
however, the indemnified party may settle such claim or action without the
consent of the indemnifying party and without waiving its rights to
indemnification if the indemnified party acts in accordance with the advice of
separate counsel engaged in accordance with this Subsection (c).
(d) If the indemnification provided for in this Section 8 is unavailable or
insufficient to hold harmless an indemnified party under Subsection (a) or (b)
above, then the Contract Seller and each indemnifying Underwriter shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages, or liabilities referred to in Subsection (a) or
(b) above, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Contract Seller on the one hand and the Underwriters on
the other from the offering of the Offered Certificates, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, 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 Contract
Seller on the one hand and the Underwriters on the other in connection with the
statement or omissions that resulted in such losses, claims, damages, or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Contract Seller on the one hand, and the
Underwriters, on the other shall be deemed to be in the same proportion as the
total proceeds from the offering of the Offered Certificates (before deducting
expenses) received by the Contract Seller bear to the total compensation and
profit (before deducting expenses) received or realized by the Underwriters from
the purchase and resale, or underwriting, of the Offered Certificates. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Contract Seller, on the one hand, or the Underwriters, on the other, and the
parties' relative intent, knowledge, access to information, and opportunity to
correct or prevent such untrue statement or omission. The Contract Seller, on
the
13
one hand, and the Underwriters, on the other, agree that it would not be just
and equitable if contributions pursuant to this Subsection (d) were to be
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account the equitable considerations referred to in the first sentence of this
Subsection (d). The amount paid by an indemnified party as a result of the
losses, claims, damages, or liabilities referred to in the first sentence of
this Subsection (d) shall be deemed to include any reasonable and documented
legal or other expense incurred by such indemnified party in connection with
investigating or defending against any action or claim which is the subject of
this Subsection (d). Notwithstanding the provisions of this Subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which (x) the total price at which the Offered Certificates underwritten by
it and distributed to the public were offered to the public exceeds (y) the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this Subsection (d) to contribute shall be several in proportion
to their respective underwriting obligations and not joint; provided that in the
case of the indemnification provided in the second paragraph of Subsection (b),
only the Underwriter furnishing the Collateral Term Sheets, Structural Term
Sheets or Computational Materials, as the case may be, that are the subject of
such indemnification shall contribute in respect thereof pursuant to this
Subsection (d).
(e) With respect to any Computational Materials, the Underwriters shall
provide to the Contract Seller a letter, in form and substance acceptable to the
Contract Seller, of independent certified public accountants acceptable to the
Contract Seller, stating in effect that such independent certified public
accountants have performed certain specified procedures, all of which have been
agreed to by the Contract Seller, and that they have verified or confirmed, as
appropriate, the financial, numerical or statistical information to be filed by
the Contract Seller as part of the Computational Materials and have found such
information to be accurate without exception. Such letter will be obtained at
the sole expense of the Underwriters. Notwithstanding any other provision
herein, no Underwriter shall be required to be responsible for any amount in
excess of the amount by which the total re-offering price at which the
Certificates underwritten by it and distributed and offered to the public
exceeds the amount paid hereunder by such Underwriter for the Certificates
pursuant to Subsection (b) or (d) hereof.
(f) The obligations of the Contract Seller under this Section 8 shall be in
addition to any liability which the Contract Seller may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act or the Exchange Act; and the
obligations of the Underwriters under this Section 8 shall be in addition to any
liability that the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Contract Seller
(including any person who, with his consent, is named in the Registration
Statement as about to become a director of the Contract Seller), to each officer
of the Contract Seller who has signed the Registration
14
Statement and to each person, if any, who controls the Contract Seller within
the meaning of the Act or the Exchange Act.
Section 9. Substitution of Underwriters. If any Underwriter shall fail to
----------------------------
take up and pay for the amount of the Offered Certificates agreed by such
Underwriter to be purchased under this Underwriting Agreement upon tender of
such Offered Certificates in accordance with the terms hereof, and the amount of
the Offered Certificates not purchased does not aggregate more than 10% of the
total amount of the Offered Certificates set forth in Schedule I hereto, the
remaining Underwriters shall be obligated to take up and pay for the Offered
Certificates that the withdrawing or defaulting Underwriter agreed but failed to
purchase.
This Underwriting Agreement shall terminate if (i) any Underwriter shall
fail to take up and pay for the amount of the Offered Certificates agreed by
such Underwriter to be purchased under this Underwriting Agreement (such
Underwriter being a "Defaulting Underwriter") upon tender of such Offered
Certificates in accordance with the terms hereof, (ii) the amount of the Offered
Certificates not purchased aggregates more than 10% of the total amount of the
Offered Certificates set forth in Schedule I hereto, and (iii) arrangements
satisfactory to the remaining Underwriters and the Contract Seller for the
purchase of such Offered Certificates by other persons are not made within 36
hours thereafter. In the event of any such termination, the Contract Seller
shall not be under any liability to any Underwriter (except to the extent
provided in Section 5(f) and Section 8 hereof) nor shall any Underwriter (other
than an Underwriter who shall have failed, otherwise than for some reason
permitted under this Underwriting Agreement, to purchase the amount of the
Offered Certificates which such Underwriter agreed to purchase hereunder) be
under any liability to the Contract Seller (except to the extent provided in
Section 8 hereof). Nothing herein shall be deemed to relieve any Defaulting
Underwriter from any liability it may have to the Contract Seller or any other
Underwriter by reason of its failure to take up and pay for Offered Certificates
as agreed to by such Defaulting Underwriter.
Section 10. Termination. Notwithstanding anything herein contained, this
-----------
Underwriting Agreement may be terminated in the absolute discretion of the
Underwriters, by written notice given to the Contract Seller, if after the
execution of this Underwriting Agreement and prior to the delivery and payment
for all Offered Certificates (i) there has occurred any material adverse change
in the condition (financial or otherwise), earnings, business or properties of
the Contract Seller and its respective subsidiaries, taken as a whole, the
effect of which in the reasonable judgment of the Underwriters materially
impairs the investment quality of the Offered Certificates; (ii) trading
generally shall have been suspended or materially limited on or by the New York
Stock Exchange; (iii) a general moratorium on commercial banking activities in
New York shall have been declared by either Federal or New York State
authorities; or (iv) there shall have occurred any outbreak or material
escalation of hostilities in which the United States is involved, and
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the reasonable judgment of the
Underwriters, the effect of any such outbreak, escalation, declaration, calamity
or emergency makes it impracticable to proceed with completion of the sale and
payment for the Offered Certificates on the terms specified in this Underwriting
Agreement and the Prospectus Supplement.
15
Section 11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Contract Seller or its officers and the Underwriters set forth in or made
pursuant to this Underwriting Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter, the
Contract Seller or any of the officers, directors or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment for
the Offered Certificates. The provisions of Section 7 and 8 hereof shall survive
the termination or cancellation of this Underwriting Agreement.
Section 12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered, telegraphed or telecopied and confirmed to them at the addresses set
forth at the beginning of this Underwriting Agreement, Attention: General
Counsel; if sent to the Contract Seller or the Servicer, will be mailed,
delivered, telegraphed or telecopied and confirmed to it at the following
address: GreenPoint Credit Corp., 00000 Xxxxxx Xxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx
00000, Attention: Manager, Investor Servicing, with copies to Xxxxxx X. Xxxxxx,
Esq., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Xxxx Xxxxxxxx, Esq., 00000
Xxxxxx Xxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000.
Section 13. Successors. This Underwriting Agreement will inure to the
----------
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 8 hereof, and their successors and assigns, and no other person will
have any right or obligation hereunder.
Section 14. Applicable Law; Counterparts. This Underwriting Agreement will
----------------------------
be governed by and construed in accordance with the laws of the State of New
York without giving effect to the provisions thereof concerning conflict of
laws. This Underwriting 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.
16
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 among the Contract Seller
and the Underwriters.
Very truly yours,
GREENPOINT CREDIT CORP.
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
Accepted at New York, New York
as of the date first written
above.
CREDIT SUISSE FIRST BOSTON CORPORATION
(for itself and for the other Underwriters set forth in Schedule I hereto)
By: /s/ Xxxxxxx X'Xxxxxxxx
--------------------------
Name: Xxxxxxx X'Xxxxxxxx
Title: Director
17
SCHEDULE I
Amount of Series 1998-1,Class I A
Underwriter Certificates to be Purchased
----------- ----------------------------
Credit Suisse First Boston Corporation $159,326,066
Bear, Xxxxxxx & Co. Inc. 159,324,000
NationsBanc Xxxxxxxxxx Securities LLC 159,324,000
Amount of Series 1998-1,Class II A
Underwriter Certificates to be Purchased
----------- ----------------------------
Credit Suisse First Boston Corporation $ 83,250,815
Bear, Xxxxxxx & Co. Inc. 83,249,000
NationsBanc Xxxxxxxxxx Securities LLC 83,249,000
18
SCHEDULE II
Registration Statement No. 333-59731
Base Prospectus dated November 17, 1998
Prospectus Supplement dated November 17, 1998
Title of Certificates...................... Manufactured Housing Contract Trust
Pass-Through Certificates, Series 1998-1
Amount of Offered Certificates
(approximate; subject to a variance
of plus/minus 5%):
Class I A Certificates................... $477,974,066
Class II A Certificates.................. $249,748,815
Pass-Through Rate:
Class I A Certificates................... 6.635%
Class II A Certificates.................. Variable
Purchase Price Percentage
Class I A Certificates................... 99.720876% (plus accrued interest)
Class II A Certificates.................. 99.925000%
Cut-Off Date:.............................. October 31, 1998
Closing Date:.............................. November 30, 1998 at the offices of Xxxxxx,
Xxxxxxxxxx & Sutcliffe LLP
Manner of payment for Certificates......... Immediately available funds
Office for delivery of Certificates........ First Chicago Trust Company of New York
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10005
Attn: Xxxxxxx Xxxxxxxxx
Office of payment for Certificates......... Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Office for checking Certificates........... First Chicago Trust Company of New York
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
19
Denominations:............................. $50,000 and integral multiples of $1,000 in
excess thereof
Modification of representations and warranties contained in Section 1 of
the Underwriting Agreement: [indicate, if any, or state "None"]
None
Modification of opinion of counsel delivered pursuant to Section 6(c) of
the Underwriting Agreement: [indicate, if any, or state "None"]
None
Modification of items to be covered by the letter from [Independent
Accountants] delivered pursuant to Section 6(i) of the Underwriting Agreement:
[indicate, if any, or state "None"]
None
Modification of items to be covered by the letter from [Independent
Accountants] delivered pursuant to Section 6(j) of the Underwriting Agreement:
[indicate, if any, or state "None"]
None
20
