EXHIBIT 1.1
GREENPOINT CREDIT CORP. MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES, SERIES 199[]-[]
[FORM OF ]UNDERWRITING AGREEMENT
[Date]
[Underwriter]
(for itself and the other Underwriters
named in Schedule I hereto)
[___________]
[___________]
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;" provided, however, that if you are the
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only underwriter named in Schedule I, then the terms "Underwriter" and
"Underwriters" shall refer solely to you) certain of its GreenPoint Credit Corp.
Manufactured Housing Contract Senior/Subordinate Pass-Through Certificates,
Series 199[]-[] (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 [____], [__] by and among,
GreenPoint Credit Corp., as a Contract Seller and Servicer, and [__________], as
Trustee (the "Trustee"). The "Cut-Off Date" shall be the close of business on
[__________]. 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.
Section 1. Representations and Warranties. The Contract Seller represents
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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-[_____]) on
Form S-3, as amended by Pre-Effective Amendment No. 1 thereto, dated
[_________], for the registration under the Securities Act of 1933, as
amended (the "Act"), of the Offered Certificates, which registration
statement has become effective on [__________] (the "Effective Date") and
copies of which have heretofore been delivered to you, and pursuant to Rule
424 a preliminary prospectus supplement dated [__________], 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.
(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 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, 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
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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
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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.
(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) 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
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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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
Section 2. Purchase and Sale. Subject to the terms and conditions and in
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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
Schedule II from [__________] to but not including the Closing Date.
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Section 3. Delivery and Payment. Delivery of and payment for the Offered
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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.
Section 4. Offering by Underwriters. It is understood that the
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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
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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
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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.
(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,
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however, that it shall not be required to qualify to do business in any
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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
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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.
Section 6. Conditions to the Obligations of the Underwriters. The
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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 [ ], counsel for the
Contract Seller, a favorable opinion, dated the Closing Date and in form
and substance satisfactory to counsel for the Underwriters.
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In addition, [ ] shall state that they have participated in conferences
with your representatives and with representatives of the Contract Seller
concerning 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 in-house counsel for
the Contract Seller, a favorable opinion, dated the Closing Date and in
form and substance satisfactory to counsel for the Underwriters.
(e) The Underwriters shall have received from [__________], counsel
for the Underwriters, a favorable opinion, dated the Closing Date and in
form and substance satisfactory to the Underwriters.
(f) The Underwriters shall have received from [______] 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.
(g) The Underwriters shall have received from [______] 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 Prospectus Supplement under the headings "The Contract Pool," "The
Seller" and "Prepayment and Yield Considerations" agrees with such
computations.
(h) The Underwriters shall have received (i) from [Xxxxx'x Investors
Service, Inc., a rating letter assigning a rating of Aaa to the Class A-1
Certificates, a rating of at least Aa3 to the Class M Certificates, a
rating of at least Baa2 to the Class B-1 Certificates and a rating of at
least Ba2 to the Class B-2 Certificates; and (ii) from Fitch IBCA, Inc., a
rating letter assigning a rating of AAA to the Class A-1 Certificates, a
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rating of at least AA- to the Class M Certificates, a rating of at least
BBB to the Class B-1 Certificates and a rating of at least BB to the Class
B-2 Certificates, which ratings shall not have been withdrawn.]
(i) 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.
(j) 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
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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
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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.
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Section 8. Indemnification and Contribution.
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(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 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
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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.
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(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
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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 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
11
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 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) 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 Statement and to each
person, if any, who controls the Contract Seller within the meaning of the Act
or the Exchange Act.
12
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.
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
13
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 Xxxxxx X. Xxxxxx,
Esq., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Xxxx Xxxxxxx, Esq., 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 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.
14
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:_____________________________________
Name:
Title:
Accepted at [New York, New York]
as of the date first written
above.
[UNDERWRITER],
for itself and the other Underwriters
named on Schedule I hereto
By:_________________________________
Name:_______________________________
Title:______________________________
15
SCHEDULE I
Amount of Series 199[]-[],
Class [A-1] Certificates to
Underwriter be Purchased
----------- ------------
[UNDERWRITER] $ []
Amount of Series 199[]-[],
Class M Certificates to
Underwriter be Purchased
----------- ------------
[UNDERWRITER] $ []
Amount of Series 199[]-[],
Class B-1 Certificates to
Underwriter be Purchased
----------- ------------
[UNDERWRITER] $ []
I-1
SCHEDULE II
Registration Statement No. 333-[_____]
Base Prospectus dated [Date]
Prospectus Supplement dated [Date]
Title of Certificates Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificates,
Series 199[]-[]
Amount of Offered Certificates
(approximate; subject to
a variance of plus/minus 5%):
Class [A-1] Certificates $[]
Class M Certificates $[]
Class B-1 Certificates $[]
Pass-Through Rate:
Class [A-1] Certificates []%
Class M Certificates []%*
Class B-1 Certificates []%*
* Subject to a maximum rate as described in the Agreement.
Purchase Price Percentage:
Class [A-1] Certificates []% (plus accrued interest)
Class M Certificates []% (plus accrued interest)
Class B-1 Certificates []% (plus accrued interest)
Cut-Off Date: [Date]
Closing Date: [Date] at the offices of [ ]
Manner of payment for Certificates Immediately available funds
Office for delivery of Certificates []
Office of payment for Certificates [ ]
Office for checking Certificates []
Denominations: $1,000 and integral multiples of $1 in excess
thereof
Modification of representations and warranties contained in Section 1 of the
Underwriting Agreement: [indicate, if any, or state "None"]
None
II-1
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
II-2
