Exhibit 1.2
GreenPoint Credit, LLC
Manufactured Housing Contract Notes, Series 200[__]
[FORM OF NOTE]UNDERWRITING AGREEMENT
[Date]
[Underwriter]
(for itself and the other Underwriters
named in Schedule I hereto)
[___________]
[___________]
Ladies and Gentlemen:
GreenPoint Credit, LLC (the "Contract Seller") is party to this
Underwriting Agreement (the "Underwriting Agreement") pursuant to which
[GreenPoint Asset LLC] [__________, as owner trustee of the GreenPoint
Manufactured Housing Contract Trust 2000-_, (the "Trust")], ("Issuer") proposes,
subject to the terms and conditions stated herein, to sell to the underwriters
named in Schedule I hereto (the "Underwriters;" provided, however, that if you
are the only underwriter named in Schedule I, then the terms "Underwriter" and
"Underwriters" shall refer solely to you) certain of its GreenPoint Credit LLC
Manufactured Housing Contract Notes, Series 200[]-[] (the "Notes"), as specified
in Schedule II hereto (the "Offered Notes"), to be issued pursuant to an
Indenture (the "Indenture"), to be dated as of [______] [__], by and among
Issuer and [_________], as indenture trustee ("Indenture Trustee"). [Contract
Seller has entered into a Trust Agreement, to be dated as of [____], [__], by
and among, Contract Seller, and the Owner Trustee creating the Trust, a
statutory business trust established under the laws of the state of Delaware.
Under the terms of the Trust Agreement, Issuer shall cause the Notes to be
transferred to the Indenture Trustee.] The "Cut-Off Date" shall be the close of
business on [__________]. The Notes will be executed by the Trustee and will
evidence indebtedness of the Issuer. The Issuer will pledge the pool (the
"Pool") of manufactured housing installment sales contracts and installment loan
agreements (the "Contracts") sold by the Contract Seller to the Issuer pursuant
to a Sale and Servicing Agreement, to be dated as of [______], [____], by and
among the Contract Seller and the Issuer, as purchaser, to secure the Notes. The
Notes 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 of Contract Seller. The Contract
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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-[_____]) 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 Notes, 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 Notes and the
method of distribution thereof, and has previously advised you of all
further information (financial and other) with respect to the Offered Notes
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 Notes 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.
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(c) It is a Delaware limited liability company, 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
Contract Sale and Servicing 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 Contract Sale
and Servicing 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 Notes 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
Contract Sale and Servicing Agreement; it has duly authorized, executed and
delivered this Underwriting Agreement and the Contract Sale and Servicing
Agreement; when delivered by the Contract Seller, this Underwriting
Agreement and the Contract Sale and Servicing 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 Contract Sale
and Servicing Agreement or this Underwriting Agreement.
(f) Neither the issuance and sale of the Offered Notes, nor the
consummation by the Contract Seller of any other transactions contemplated
in this Underwriting Agreement, nor the fulfillment of the terms of the
Contract Sale and Servicing Agreement or this Underwriting Agreement will
result in the breach of any term or provision of the certificate of
formation or the limited liability company agreement 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
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materially and adversely affects the ability of the Contract Seller to
perform its obligations under the Contract Sale and Servicing Agreement.
(g) 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 Contract Sale
and Servicing Agreement or the Notes, (ii) seeking to prevent the issuance
of the Notes or the consummation of any of the transactions contemplated by
this Underwriting Agreement or the Contract Sale and Servicing 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 Contract Sale and Servicing Agreement or the
Notes or (iv) seeking to affect adversely the federal income tax attributes
of the Offered Notes described in the Prospectus.
(h) 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 Indenture.
(i) Any taxes, fees and other governmental charges in connection with
the execution and delivery of this Underwriting Agreement and the Contract
Sale and Servicing Agreement and the execution, delivery and sale of the
Offered Notes have been or will be paid at or prior to the Closing Date.
(j) Immediately prior to the assignment of the Contracts sold by it to
the Trustee, as contemplated by the Contract Sale and Servicing Agreement,
it will have the power and authority to sell such Contracts to the Trustee,
and upon the execution and delivery of the Contract Sale and Servicing
Agreement by the Trustee, the Trustee will have acquired all of its right,
title and interest in and to the Contracts.
Section 2. Representations and Warranties of Issuer. The Issuer represents and
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warrants to, and agrees with, each Underwriter that:
(a) It is a Delaware [limited liability company] [business trust],
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 Indenture 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
Indenture.
(b) At or prior to the Closing Date, it will have entered into the
Indenture; it has duly authorized, executed and delivered this Underwriting
Agreement and the Indenture; when delivered by the Issuer, this
Underwriting Agreement and the Indenture will have
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been duly authorized, executed and delivered by it and will constitute a
valid and binding agreements of the Issuer, 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 Indenture or
this Underwriting Agreement.
(c) The Notes and the Indenture conform in all material respects to
the descriptions thereof contained in the Prospectus. As of the Closing
Date, the Offered Notes will be duly and validly executed and delivered by
it, and will, when duly and validly authenticated by the Indenture Trustee
and delivered to you in accordance with this Underwriting Agreement and the
Indenture, be entitled to the benefits of the Indenture.
(d) 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, each with regard to those
sections under the captions pertaining to the Issuer, 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,
with regard to those sections under the captions pertaining to the Issuer,
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 Issuer by you, or by any Underwriter through
you, specifically for use in the preparation thereof.
(e) Neither it nor the Trust Fund is, and neither the issuance and
sale of the Notes nor the activities of the Trust Fund pursuant to the
Indenture will cause the Issuer 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.
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Section 3. 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 Issuer
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Issuer, the amount of the Offered Notes set
forth opposite each such Underwriter's name in Schedule I hereto. The purchase
price for the Offered Notes 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 Notes interest in respect of the
Offered Notes at the pass-through rate applicable to the Offered Notes as
specified in Schedule II from [__________] to but not including the Closing
Date.
Section 4. Delivery and Payment. Delivery of and payment for the Offered Notes
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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 Issuer
or as provided in Section 10 hereof (such date, location and time of delivery
and payment for the Offered Notes being herein called the "Closing Date").
Delivery of the Offered Notes shall be made to the Underwriters against payment
by the Underwriters of the purchase price thereof to or upon the order of the
Issuer in immediately available funds as specified in Schedule II hereto. The
Offered Notes 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 Issuer in writing not less than three full business days in
advance of the Closing Date.
The Issuer agrees to have the Offered Notes 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 5. Offering by Underwriters. It is understood that the Underwriters
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propose to offer the Offered Notes for sale to the public as set forth in the
Prospectus.
Section 6. Agreements. The Contract Seller agrees with the Underwriters that:
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(a) It will cause to be prepared a supplement to the Base Prospectus
setting forth the amount of Offered Notes covered thereby and the terms
thereof not otherwise specified in the Base Prospectus, the expected
proceeds to the Issuer from the sale of such Offered Notes, and such other
information as the Underwriters, the Issuer and the Contract Seller may
deem appropriate in connection with the offering of such Offered Notes. 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 or the Issuer of any notification with
respect to the suspension of the qualification of the Offered Notes for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose,
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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
Notes 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 Notes 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 6, 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 Notes 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 Indenture Trustee by the Servicer pursuant to
Sections 4.20 and 4.21 of the Contract Sale and Servicing Agreement, as
soon as such statements are furnished to the Indenture Trustee.
(e) It will furnish such information, execute such instruments and
take such action, if any, as may be required to qualify the Offered Notes
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 Notes; provided, however, that
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it shall not be required to qualify to do business in any jurisdiction
where it is not
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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 Indenture and the Offered Notes;
accounting fees and disbursements; the costs and expenses in connection
with the qualification or exemption of the Offered Notes 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 Notes 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 6
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 Notes, including the fees of counsel to any Underwriter.
Section 7. Conditions to the Obligations of the Underwriters. The obligations of
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the Underwriters to purchase the Offered Notes as provided in this Underwriting
Agreement shall be subject to the accuracy of the representations and warranties
on the part of the Contract Seller and the Issuer contained herein as of the
date hereof and the Closing Date, the accuracy of the statements of the Contract
Seller and the Issuer made in any officer's certificate pursuant to the
provisions hereof, the performance by the Contract Seller and the Issuer of
their respective obligations hereunder, and the following additional conditions
with respect to the Offered Notes:
(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) Each of the Contract Seller and the Issuer 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 each of this Underwriting
Agreement, the Contract Sale and Servicing Agreement, [the Trust
Agreement,] the Indenture, the Registration Statement and the Prospectus to
which it is a party 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
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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.
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.
(f) The Underwriters shall have received from [______] certified
public accountants, a letter dated the Closing Date and satisfactory in
form and substance to the
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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 [____________] a
rating letter assigning a rating of [_______________] to the Notes, which
ratings shall not have been withdrawn.]
(i) The Underwriters shall have received from counsel to the
Indenture 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
business, operations, financial condition, properties or assets of the
Contract Seller or the Issuer since the date of its latest quarterly
financial statement, which change would have a material adverse effect on
their ability to perform their obligations under the Contract Sale and
Servicing Agreement and the Indenture respectively.
Section 8. Reimbursement of Underwriters' Expenses. If the sale of any Offered
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Notes provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied,
provided, however, that the Contract Seller and the Issuer shall have no
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obligation to reimburse the Underwriters pursuant to this Section 8 if such
condition was not satisfied as a result of the actions of the Underwriters,
their agents or their counsel, the Contract Seller and the Issuer will reimburse
the Underwriters jointly and 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 Notes.
Section 9. Indemnification and Contribution.
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(a) The Contract Seller and the Issuer, jointly and severally, 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)
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that the Contract Seller and the Issuer shall not be liable in any such case to
the
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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 and the Issuer 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 Notes 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 Notes
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, the Issuer and their respective directors,
officers, agents and employees against any losses, claims, damages, or
liabilities to which the Contract Seller, the Issuer or any 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 or the Issuer by you, or by such Underwriter through you,
specifically for use therein, and will reimburse the Contract Seller, the Issuer
and their respective directors, officers, agents and employees for any
reasonable and documented legal or other expense incurred by the Contract
Seller, the Issuer or any director, officer, agent or employee thereof, as
incurred, in connection with investigating or defending against any such loss,
claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under this Section 9 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 9, 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 9 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
11
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 9 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 9, 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 9 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 9 is unavailable
or insufficient to hold harmless an indemnified party under Subsection (a) or
(b) above, then the Contract Seller, the Issuer 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 and the Issuer on the one
hand and the Underwriters on the other from the offering of the Offered Notes,
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 and the Issuer 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 and the
Issuer 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
Notes (before deducting expenses) received by the Contract Seller and/or the
Issuer 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 Notes. 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 and/or the Issuer, 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 and the Issuer, on the one
hand, and the
12
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 Notes 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 and the Issuer under this
Section 9 shall be in addition to any liability which the Contract Seller and
the Issuer 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 9 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 and the Issuer (including
any person who, with his consent, is named in the Registration Statement as
about to become a director of the Contract Seller or the Issuer), to each
officer of the Contract Seller who has signed the Registration Statement and to
each person, if any, who controls the Contract Seller or the Issuer within the
meaning of the Act or the Exchange Act.
Section 10. Substitution of Underwriters. If any Underwriter shall fail to take
----------------------------
up and pay for the amount of the Offered Notes agreed by such Underwriter to be
purchased under this Underwriting Agreement upon tender of such Offered Notes in
accordance with the terms hereof, and the amount of the Offered Notes not
purchased does not aggregate more than 10% of the total amount of the Offered
Notes set forth in Schedule I hereto, the remaining Underwriters shall be
obligated to take up and pay for the Offered Notes 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 Notes agreed by such
Underwriter to be purchased under this Underwriting Agreement (such Underwriter
being a "Defaulting Underwriter") upon tender of such Offered Notes in
accordance with the terms hereof, (ii) the amount of the Offered Notes not
purchased aggregates more than 10% of the total amount of the Offered Notes set
forth in
13
Schedule I hereto, and (iii) arrangements satisfactory to the remaining
Underwriters, the Contract Seller and the Issuer for the purchase of such
Offered Notes by other persons are not made within 36 hours thereafter. In the
event of any such termination, neither the Contract Seller nor the Issuer shall
be under any liability to any Underwriter (except to the extent provided in
Section 6(f) and Section 9 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 Notes
which such Underwriter agreed to purchase hereunder) be under any liability to
the Contract Seller or the Issuer (except to the extent provided in Section 9
hereof). Nothing herein shall be deemed to relieve any Defaulting Underwriter
from any liability it may have to the Contract Seller, the Issuer or any other
Underwriter by reason of its failure to take up and pay for Offered Notes as
agreed to by such Defaulting Underwriter.
14
Section 11. 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 and the Issuer, if
after the execution of this Underwriting Agreement and prior to the delivery and
payment for all Offered Notes (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 Notes; (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 Notes on the terms specified in this Underwriting
Agreement and the Prospectus Supplement.
Section 12. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Contract Seller, the Issuer or their respective 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, the Issuer or any of the officers, directors
or controlling persons referred to in Section 9 hereof, and will survive
delivery of and payment for the Offered Notes. The provisions of Section 8 and 9
hereof shall survive the termination or cancellation of this Underwriting
Agreement.
Section 13. 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., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Manager, Investor Servicing, with copies ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇, Esq., ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and if sent to the Issuer, will be mailed,
delivered, telegraphed or telecopied and confirmed to it at the following
address: [___________________________________].
Section 14. 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 9 hereof,
and their successors and assigns, and no other person will have any right or
obligation hereunder.
Section 15. Applicable Law; Counterparts. This Underwriting Agreement will be
----------------------------
governed by and construed in accordance with the laws of the State of [______]
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.
15
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,
the Issuer and the Underwriters.
Very truly yours,
GREENPOINT CREDIT LLC
By:_____________________________________
Name:
Title:
[________________________],
as Issuer
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:______________________________
16
SCHEDULE I
Amount of Series 200[]-[],
Class [__] Notes to
Underwriter be Purchased
----------- ------------
[UNDERWRITER] $[]
Amount of Series 200[]-[],
Class [__] Notes to
Underwriter be Purchased
----------- ------------
[UNDERWRITER] $[]
Amount of Series 200[]-[],
Class [__] Notes to
Underwriter be Purchased
----------- ------------
[UNDERWRITER] $[]
I-1
SCHEDULE II
Registration Statement No. 333-[_____]
Base Prospectus dated [Date]
Prospectus Supplement dated [Date]
Title of Notes Manufactured Housing Contract
Senior/Subordinate Pass-Through Notes, Series
200[]-[]
Amount of Offered Notes
(approximate; subject to
a variance of +/- 5%):
Class [___] Notes $[]
Class [___] Notes $[]
Class [___] Notes $[]
Interest Rate:
Class [___] Notes []%
Class [___] Notes []%*
Class [___] Notes []%*
* Subject to a maximum rate as described in the Indenture.
Purchase Price Percentage:
Class [___] Notes []% (plus accrued interest)
Class [___] Notes []% (plus accrued interest)
Class [___] Notes []% (plus accrued interest)
Cut-Off Date: [Date]
Closing Date: [Date] at the offices of [ ]
Manner of payment for Notes Immediately available funds
Office for delivery of Notes []
Office of payment for Notes [ ]
Office for checking Notes []
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 7(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 7(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 7(j) of the Underwriting Agreement: [indicate, if
any, or state "None"]
None
II-2