EXHIBIT 1.1
Execution Copy
ORIGEN RESIDENTIAL SECURITIES, INC..
$156,187,000 (Approximate)
Origen Manufactured Housing Contract
Trust Notes, Series 0000-X
XXXXXXXXXXXX XXXXXXXXX
Xxx Xxxx, Xxx Xxxx
December 8, 2005
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sir or Madam:
Origen Manufactured Housing Contract Trust 2005-B (the "Issuer"), a
Delaware statutory trust, proposes to issue Origen Manufactured Housing Contract
Trust Collateralized Notes, Series 2005-B (the "Notes"), under an Indenture (the
"Indenture") dated as of December 1, 2005 between the Issuer and JPMorgan Chase
Bank as indenture trustee (the "Indenture Trustee"). The Issuer was formed
pursuant to a Trust Agreement, dated as of December 1, 2005 (the "Trust
Agreement"), among Wilmington Trust Company, as owner trustee, JPMorgan Chase
Bank, as certificate paying agent and certificate registrar, and Origen
Residential Securities, Inc. (the "Company"), as depositor. The Company hereby
proposes to sell the Notes to you (the "Underwriter"). The Notes are designated
as (i) the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes (collectively, the "Class A Notes"), and (ii) the Class M-1
Notes, the Class M-2 Notes and the Class B Notes (collectively, the "Mezzanine
Notes").
Payments on the Notes will be secured by a trust estate consisting
primarily of a segregated pool (the "Contract Pool") of manufactured housing
installment sales contracts and installment loan agreements (the "Contracts").
Each Contract provides for an original term to maturity of not greater than 30
years. The Contracts will be acquired by the Company from Origen Securitization
Company, LLC (the "Seller") in exchange for immediately available funds
representing the purchase price. The Seller has acquired the Contracts from
Origen Financial L.L.C. (the "Originator" and, together with the Company and the
Seller, the "Origen Companies"; the Origen Companies also referred to herein
individually as an "Origen Company"). The Notes are described more fully in
Schedule I hereto. The Class A Notes and the Mezzanine Notes are more fully
discussed in a registration statement which the Company has furnished to you.
This is to confirm the arrangements with respect to your purchase of the Notes.
Capitalized terms used but not defined herein shall have the meanings
assigned thereto in Appendix A to the Indenture.
1. Representations and Warranties: The Origen Companies represent and
warrant to, and agree with, the Underwriter that:
(a) The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (the file number of
which is set forth on Schedule A hereto), for the registration of the Notes
under the Securities Act of 1933, as amended (the "1933 Act"), which
registration statement has become effective and copies of which have
heretofore been delivered to you. Such registration statement, as amended
as of the date hereof, meets the requirements set forth in Rule
415(a)(1)(vii) under the 1933 Act and complies in all other material
respects with the 1933 Act and the rules and regulations thereunder. The
Company proposes to file with the Commission pursuant to Rule 424 under the
1933 Act a supplement to the form of prospectus included in such
registration statement relating to the Notes and the plan of distribution
thereof, and has previously advised you of all further information
(financial and other) with respect to the Notes and the Contract Pool to be
set forth therein. Such registration statement, including the exhibits
thereto, as amended as of the date hereof, is hereinafter called the
"Registration Statement"; the prospectus included in the Registration
Statement after the Registration Statement, as amended, became effective,
or as subsequently filed with the Commission pursuant to Rule 424 under the
1933 Act, is hereinafter called the "Basic Prospectus"; the form of
prospectus supplemented by the supplement to the form of prospectus
relating to the Notes, in the form in which it shall be first filed with
the Commission pursuant to Rule 424 (including the Basic Prospectus as so
supplemented) is hereinafter called a "Final Prospectus." Any preliminary
form of any Final Prospectus that has heretofore been filed pursuant to
Rule 424 or, prior to the effective date of the Registration Statement,
pursuant to Rule 402(a) or 424(a), is hereinafter called a "Preliminary
Final Prospectus." Subject to the Underwriter's compliance with its
obligations pursuant to Section 4(b), the Company shall file any
Computational Materials and ABS Term Sheets (as each defined herein)
provided to it by the Underwriter under Section 4(c)(iii), except to the
extent of any information set forth therein that constitutes Collateral
Information (as defined below), with the Commission on Form 8-K
concurrently (to the extent practicable) with the filing of the Prospectus
Supplement under Rule 424(b) under the 1933 Act on the business day
immediately following the date that the Final Prospectus is dated (the
"Final Prospectus Date"). As used herein, "Collateral Information" means
information with respect to the characteristics of the Contracts and
administrative and servicing fees, as provided by or on behalf of the
Company to the Underwriter in final form and set forth in the Prospectus
Supplement. The Company will file with the Commission within fifteen days
of the issuance of the Notes a report on Form 8-K setting forth specific
information concerning the Notes and the Contract Pool to the extent that
such information is not set forth in the Final Prospectus.
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The Company has prepared the following information (collectively, the
"Time of Sale Information"): the Preliminary Final Prospectus dated
November 30, 2005 and a Term Sheet dated November 30, 2005 (the "Term
Sheet") to be used by the Underwriter at or prior to the time when sales to
investors of the Notes are first made (the "Time of Sale"). If, subsequent
to the date of this Agreement, the Company and the Underwriter have
determined that such information included an untrue statement of material
fact or omitted 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 and have terminated their old purchase contracts and
entered into new purchase contracts with purchasers of the Offered
Certificates, then "Time of Sale Information" will refer to the information
available to purchasers at the time of entry into the first such new
purchase contract, including any information that corrects such material
misstatements or omissions ("Corrective Information").
(b) As of the date hereof, when the Preliminary Final Prospectus is first
filed pursuant to Rule 424 under the 1933 Act, when the Final Prospectus is
first filed pursuant to Rule 424 under the 1933 Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective, when any supplement to the Final Prospectus is
filed with the Commission, and at the Closing Date, (i) the Registration
Statement, as amended as of any such time, the Preliminary Final Prospectus
as amended or supplemented as of any such time and the Final Prospectus, as
amended or supplemented as of any such time, comply and will comply in all
material respects with the applicable requirements of the 1933 Act and the
rules and regulations thereunder, (ii) the Registration Statement, as
amended as of any such time, does not and will not contain any untrue
statement of material fact and does not and will not omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, (ii) the Preliminary Final
Prospectus, as amended or supplemented as of any such time, does not and
will not contain any untrue statement of a material fact and does not and
will not omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and (iii) the Final Prospectus, as amended or supplemented as
of any such time, does not and will not contain any untrue statement of a
material fact and does not and will not omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Origen Companies make no representations or warranties as to (i) the
information contained in or omitted from the Registration Statement, the
Preliminary Final Prospectus or Final Prospectus or any amendment thereof
or supplement thereto in reliance upon and in conformity with the
information furnished in writing to the Company by or on behalf of the
Underwriter specifically for use in connection with the preparation of the
Registration Statement, Preliminary Final Prospectus and the Final
Prospectus as set forth on Exhibit A hereto (the "Underwriter's
Information") or (ii) Derived Information in the Term Sheet.
The Time of Sale Information, at the Time of Sale did not, and at the
Closing Date will not, contain any untrue statement of a material fact or
omit to state a material fact
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necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to Derived
Information or any statements or omissions made in reliance upon and in
conformity with information relating to the Underwriter furnished to the
Company in writing by the Underwriter expressly for use in such Time of
Sale Information.
Other than the Time of Sale Information, the Final Prospectus and the
Basic Prospectus, the Company (including its agents and representatives
other than the Underwriters in their capacity as such) has not made, used,
prepared, authorized, approved or referred to and will not make, use,
prepare, authorize, approve or refer to any "written communication" (as
defined in Rule 405 under the Securities Act) that constitutes an offer to
sell or solicitation of an offer to buy the Notes.
(c) Each of the Origen Companies has been duly incorporated and is validly
existing as a corporation or limited liability company in good standing
under the laws of the State of Delaware with full power and authority
(corporate and other) to own its properties and conduct its business as now
conducted by it and to enter into and perform its obligations under each of
the following agreements to which it is a party: (i) this agreement, (ii)
the Asset Purchase Agreement, dated as of December 1, 2005 (the "Purchase
Agreement"), among the Company, the Originator and the Seller (iii) the
Indenture, (iv) the Servicing Agreement, dated as of December 1, 2005 (the
"Servicing Agreement"), among Origen Financial L.L.C., as servicer (the
"Servicer"), Origen Servicing, Inc. (the "Subservicer"), the Issuer and the
Indenture Trustee and (v) the Trust Agreement (this agreement, the Purchase
Agreement the Servicing Agreement, the Indenture and the Trust Agreement
individually, an "Agreement" and collectively, the "Agreements"); and none
of the Origen Companies has received any notice of proceedings relating to
the revocation or modification of any license, certificate, authority or
permit applicable to its owning such properties or conducting such business
which singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
conduct of the business, operations, financial condition or income of such
Origen Company.
(d) As of the date hereof, the time of sale, when the Final Prospectus is
first filed pursuant to Rule 424 under the 1933 Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective, when any supplement to the Final Prospectus is
filed with the Commission, and at the Closing Date, there has not and will
not have been (i) any request by the Commission for any further amendment
of the Registration Statement or the Final Prospectus or for any additional
information, (ii) any 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
Notes for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
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(e) Each of the Agreements when executed and delivered as contemplated
hereby and thereby will have been, duly authorized, executed and delivered
by each Origen Company that is a party to such Agreement and each
constitutes, or will constitute when so executed and delivered, a legal,
valid and binding agreement of that Origen Company, enforceable against
such Origen Company in accordance with its terms, except as enforceability
may be limited by (i) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the enforcement
of the rights of creditors, (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law and (iii) public
policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of the
provisions of such Agreement that purport to provide indemnification from
securities law liabilities.
(f) The Notes and each of the Agreements will conform in all material
respects to the description thereof contained in the Time of Sale
Information, the Final Prospectus, and the Notes, when duly and validly
authorized, executed, authenticated and delivered in accordance with the
Indenture and paid for by the Underwriter as provided herein, will be
entitled to the benefits of the Indenture. On the Closing Date, the Trust
Agreement will be effective to establish the Trust as a valid trust under
the laws of the State of Delaware.
(g) As of the Closing Date, the Contracts will meet the criteria for
selection described in the Preliminary Final Prospectus and the Final
Prospectus.
(h) Neither the issuance and sale of the Notes, nor the execution and
delivery by any of the Origen Companies of each Agreement to which it is a
party, nor the consummation by any Origen Company of any of the
transactions herein or therein contemplated, nor compliance by the Origen
Companies with the provisions hereof or thereof, will conflict with or
result in a breach of any term or provision of the certificate of
incorporation, by-laws or operating agreement of any Origen Company or
conflict with, result in a breach, violation or acceleration of or
constitute a default under, the terms of any indenture or other agreement
or instrument to which an Origen Company or any of its affiliates is a
party or by which it or any of them is bound, or any statute, order or
regulation applicable to such Origen Company or any of its affiliates of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over the Company or any of its affiliates. None of the
Origen Companies nor any of their affiliates is a party to, bound by or in
breach or violation of any indenture or other agreement or instrument, or
subject to or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects, or may in the
future materially and adversely affect, (i) validity or enforceability of,
or the ability of the Origen Companies to perform their obligations under,
this Agreement, the Purchase Agreement or the Trust Agreement or (ii) the
business, operations, financial conditions, properties or assets of the
Origen Companies.
(i) There are no actions or proceedings against, or investigations of, any
Origen Company pending, or, to the knowledge of an Origen Company,
threatened, before any
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court, administrative agency or other tribunal (i) asserting the invalidity
of any of the Agreements to which it is a party or the Notes, (ii) seeking
to prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by any of the Agreements to which it is a party,
(iii) that might materially and adversely affect the performance by an
Origen Company of its obligations under, or the validity or enforceability
of, any Agreement to which it is a party or the Notes, or (iv) seeking to
affect adversely the federal income tax attributes of the Notes as
described in the Time of Sale Information and the Final Prospectus.
(j) Since the date as of which information is given in the Registration
Statement, the Time of Sale Information or the Final Prospectus, there has
not been any material adverse change in the business, operations, financial
condition, properties or assets of any of the Origen Companies.
(k) Any taxes, fees and other governmental charges payable by the Origen
Companies in connection with the execution, delivery and issuance of this
Agreement, the Purchase Agreement and the Trust Agreement or the execution,
delivery and sale or transfer of the Notes have been or will be paid at or
prior to the Closing Date.
(l) None of the Issuer or the Origen Companies is, and the issuance and
sale of the Notes in the manner contemplated by the Preliminary Final
Prospectus and the Final Prospectus will not cause any of the Issuer or the
Origen Companies to be, subject to registration or regulation as an
investment company or affiliate of an investment company under the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(m) Any certificate signed by an officer of the Issuer or any of the Origen
Companies Company and delivered to an Underwriter or counsel for the
Underwriters in connection with an offering of the Notes shall be deemed,
and shall state that it is, a representation and warranty as to the matters
covered thereby to each person to whom the representations and warranties
in this Section 1 are made.
(n) Since the date as of which information is given in the Preliminary
Final Prospectus and the Final Prospectus, there has not been any material
adverse change in the general affairs, management, financial condition, or
results of operations of the Origen Companies, otherwise than as set forth
or contemplated in the Preliminary Final Prospectus and the Final
Prospectus, as supplemented or amended as of the Closing Date.
(o) The Preliminary Final Prospectus was, and the Final Prospectus
delivered to the Underwriter for use in connection with this offering will
be, identical to the versions of the Preliminary Final Prospectus and Final
Prospectus created to be transmitted to the Commission for filing via the
Electronic Data Gathering Analysis and Retrieval System ("XXXXX"), except
to the extent permitted by Regulation S-T.
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(p) No Origen Company has taken, and will not take, directly or indirectly,
any action which is designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of an Origen Company to facilitate the sale or
resale of the Notes.
(q) Neither an Origen Company nor any of its affiliates (i) is required to
register as a "broker" or "dealer" in accordance with the provisions of the
Exchange Act, or the rules and regulations thereunder (the "Exchange Act
Regulations"), or (ii) directly, or indirectly through one or more
intermediaries, controls or has any other association with (within the
meaning of Article I of the Bylaws of the NASD) any member firm of the
NASD.
(r) No Origen Company has relied upon the Underwriter for any legal, tax or
accounting advice in connection with the offering and sale of the Notes.
(s) The Pool Information is accurate, true and correct.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties set forth herein, the Company agrees to
sell to the Underwriter, and the Underwriter agrees to purchase from the Company
on the Closing Date, at the purchase price to public less the underwriting
discounts and commission for each class set forth in Schedule II hereto, the
Notes set forth in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Notes shall be
made in the manner, on the date and at the time specified in Schedule I hereto
(or such later date not later than seven business days after such specified date
as the Underwriter shall designate), which date and time may be postponed by
agreement between the Underwriter and the Company or as provided in Section 9
hereof (such date and time of delivery and payment for the Notes being herein
called the "Closing Date"). Delivery of the Notes, as set forth on Schedule I
hereto, shall be made to the Underwriter against payment in same day Federal
funds by the Underwriter of the purchase price. The Notes shall be registered in
such names and in such authorized denominations as the Underwriter may request
not less than three full business days in advance of the Closing Date.
The Company agrees to have the Notes available for inspection,
checking and packaging by the Underwriter in New York, New York, not later than
1:00 p.m. New York time on the business day prior to the Closing Date.
4. Offering by Underwriter.
(a) It is understood that the Underwriter proposes to offer the Notes for
sale to the public as set forth in the Preliminary Final Prospectus and the
Final Prospectus.
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(b) It is understood that at or prior to the Time of Sale, the Underwriter
will have provided to prospective investors the Time of Sale Information in
connection with their offering of the Notes.
(c) The Underwriter shall not enter into a Contract of Sale with any
potential investor unless the Underwriter has conveyed the Preliminary
Final Prospectus to such potential investor prior to such Contract of Sale.
(d) The Underwriter agrees that:
(i) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Securities Act, the Underwriter
shall not convey or deliver any written communication to any person in
connection with the initial offering of the Notes, unless such written
communication (1) is made in reliance on Rule 134 under the Securities
Act, (2) constitutes a prospectus satisfying the requirements of Rule
430B under the Securities Act, or (3) is the Term Sheet.
(ii) The Underwriter shall provide to the Company (in such written or
electronic format as required by the Company) the Term Sheet that was
sent to any prospective investors .
The Underwriter may, or if requested by the Company shall, provide copies
of the foregoing in a consolidated or aggregated form including all
information described above.
5. Agreements. The Origen Companies agree with the Underwriter that:
(a) The Company will not file any amendment or supplement to the
Registration Statement, the Preliminary Final Prospectus Supplement or the
Final Prospectus, unless the Company has furnished to you a copy for your
review prior to filing, and will not file or distribute any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, the Company will cause the Preliminary Final Prospectus
and the Final Prospectus to be transmitted to the Commission for filing
within the time periods specified by Rule 424 under the 1933 Act and will
file the Term Sheet provided to the Company with the Commission on Form 8-K
no later than with the filing of each respective Final Prospectus under
Rule 424(b) under the 1933 Act. The Company will promptly advise the
Underwriter (i) when the Preliminary Final Prospectus and the Final
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 of the Registration Statement or the Final
Prospectus or for any additional information, (iv) 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 and (v) of
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the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such stop
order or suspension and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is required to
be delivered under the 1933 Act, any event occurs as a result of which any
Preliminary Final Prospectus or Final 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 the
light of the circumstances under which they were made not misleading, or if
it shall be necessary to amend or supplement the Preliminary Final
Prospectus or Final Prospectus to comply with the 1933 Act or the rules and
regulations thereunder, the Company 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 of the Registration
Statement, will use its best efforts to cause such amendment of the
Registration Statement to be made effective as soon as possible.
(c) The Company will (i) furnish to the Underwriter and counsel for the
Underwriter, without charge, upon reasonable request, signed copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto that shall become effective on or prior to the Closing Date and, so
long as delivery of a prospectus by an Underwriter or dealer in connection
with the Notes may be required by the 1933 Act, as many copies of the
Preliminary Final Prospectus, the Final Prospectus and any amendments
thereof and supplements thereto as the Underwriter may reasonably request,
and (ii) file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act"), subsequent to the date of the Final
Prospectus and for so long as the delivery of a prospectus by an
Underwriter or dealer in connection with the Notes may be required under
the 1933 Act.
(d) The Company agrees that, so long as the Notes shall be outstanding, it
will deliver to the Underwriter the annual statement as to compliance
delivered to the Indenture Trustee pursuant to Section 3.15 of the
Servicing Agreement and the annual statement of a firm of independent
public accountants furnished to the Indenture Trustee pursuant to Section
3.16 of the Servicing Agreement, as soon as such statements are furnished
to the Company. The Company will request that the Servicer and the
Indenture Trustee furnish to the Underwriter any monthly reports furnished
to Noteholders pursuant to the Servicing Agreement and the Indenture.
(e) The Company will furnish such information, execute such instruments and
take such action, if any, as may be required to qualify the Notes for sale
under the laws of such
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jurisdictions as the Underwriter may designate and will maintain such
qualifications in effect so long as required for the distribution of the
Notes; provided, however, that the Company shall not be required to qualify
to do business in any jurisdiction where it is not now so qualified.
(f) The Origen Companies will pay all costs and expenses in connection with
the transactions herein contemplated, 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, the Trust
Agreement, the Servicing Agreement and the Notes; accounting fees and
disbursements; the costs and expenses in connection with the qualification
or exemption of the Notes under state securities or blue sky laws,
including filing fees and reasonable fees and disbursements of counsel in
connection with the preparation of any blue sky survey and in connection
with any determination of the eligibility of the Notes for investment by
institutional investors and the preparation of any legal investment survey;
the expenses of printing any such blue sky survey and legal investment
survey; the costs and expenses in connection with the preparation, printing
and filing of the Registration Statement (including exhibits thereto), the
Basic Prospectus, the Preliminary Final Prospectus and the Final
Prospectus, the preparation and printing of this Agreement and the
furnishing to the Underwriter of such copies of each Preliminary Final
Prospectus and the Final Prospectus as the Underwriter may reasonably
request, the fees of each nationally recognized statistical rating
organization identified in the Final Prospectus (individually and
collectively, the "Rating Agency") as having rated the Notes and the fees
of counsel to the Underwriter. Except as provided in Section 7 hereof, the
Underwriter shall be responsible for paying all costs and expenses incurred
by them in connection with the offering of the Notes.
6. Conditions to the Obligations of the Underwriter. The obligations of the
Underwriter to purchase the Notes shall be subject to the accuracy of the
representations and warranties on the part of the Origen Companies contained
herein as of the date hereof, as of the date of the effectiveness of any
amendment to the Registration Statement filed prior to the Closing Date and as
of the Closing Date, to the accuracy of the statements of the Origen Companies
made in any certificates pursuant to the provisions hereof, to the performance
by the Origen Companies of their obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or
threatened; and the Final Prospectus shall have been filed or transmitted
for filing with the Commission in accordance with Rule 424 under the 1933
Act; the Prospectus and the Term Sheet shall have been timely filed with
the Commission under the Securities Act and in accordance with Section 5(a)
hereof; and all requests by the Commission for additional information shall
have been complied with to the reasonable satisfaction of the Underwriter.
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(b) The Company shall have delivered to you a certificate of the Company,
signed by the President or a vice president or an assistant vice president
of the Company and dated the Closing Date, to the effect that the signer of
such certificate has carefully examined the Registration Statement, Time of
Sale Information, Final Prospectus and this Agreement and that (i) the
representations and warranties of the Company in this 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) the Company has, in all
material respects, complied with all the agreements and satisfied all the
conditions on its part that are required by this Agreement 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
Company's knowledge, threatened, (iv) nothing has come to the attention of
such officer that would lead such officer to believe that the Time of Sale
Information or Final 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 and (v) subsequent to the respective dates as of which
information is given in the Final Prospectus, there has not been any
material adverse change in the general affairs, capitalization, financial
condition or results of operations of the Company.
(c) The Underwriter shall have received from Hunton & Xxxxxxxx LLP, counsel
for the Origen Companies, a favorable opinion or opinions, dated the
Closing Date and satisfactory in form and substance to the Underwriter
including without limitation a statement that nothing has come to such
counsel's attention that would lead such counsel to believe that the
Preliminary Final Prospectus and Final Prospectus, each as of its date, and
on the Closing Date, contained or contain an untrue statement of a material
fact or omitted or 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; it being understood that such counsel need
express no view as to financial and statistical information contained
therein.
(d) The Underwriter shall have received from Deloitte & Touche, certified
public accountants, a letter, dated the date hereof and satisfactory in
form and substance to the Underwriter and counsel for the Underwriter, to
the effect that they have performed certain specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature set forth in each respective Preliminary
Final Prospectus and Final Prospectus under the captions "Summary of
Prospectus Supplement--The Contracts," "Risk Factors" (to the extent of
information regarding the Contracts therein) "The Contract Pool" "Yield on
the Notes" and "Description of the Notes" agrees with the records of the
Seller.
(e) The Notes shall have been given the ratings set forth in Schedule I
hereto by each Rating Agency.
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(f) The Underwriter shall have received, from counsel for the Indenture
Trustee, a favorable opinion, dated the Closing Date, and in form and
substance satisfactory to the Underwriter and its counsel, to the effect
that the Indenture has been duly authorized, executed and delivered by the
Indenture Trustee and constitutes the legal, valid and binding agreement of
the Indenture Trustee, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors rights in general
and by general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law, and as to such other
matters as may be agreed upon by the Indenture Trustee and the Underwriter.
(g) The Underwriter shall have received from the Seller, in form and
substance satisfactory to counsel for the Underwriter:
(i) An officer's certificate stating that on the Closing Date the
representations and warranties of the Seller under the Purchase
Agreement will be true and correct and no event has occurred that
would constitute a default thereunder; and
(ii) An officer's certificate relating to the Purchase Agreement and
the obligations of the Seller thereunder, as Seller or otherwise,
together with copies of the certificate of incorporation and by-laws
of the Seller and a certificate of good standing of the Seller under
the laws of the State of New York;
(h) The Underwriter shall have received from the Originator in form and
substance satisfactory to counsel for the Underwriter:
(i) An officer's certificate stating that on the date each Contract is
sold to the Seller (i) the representations and warranties of the
Originator under the Purchase Agreement will be true and correct and
no event has occurred that would constitute a default thereunder, (ii)
nothing has come to the attention of such officer that would lead such
officer to believe that the information set forth with respect to the
Originator in the Prospectus Supplement and with respect to any
private placement memorandum, any information of a comparable nature,
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 and (iii) subsequent to the respective dates as of which
information is given in the Prospectus Supplement and any private
placement memorandum, there has not been any material adverse change
in the general affairs, capitalization, financial condition or results
of operations of the Originator; and
(ii) An officer's certificate relating to the Purchase Agreement and
the obligations of the Originator thereunder, as Originator or
otherwise, together with
12
copies of the operating agreement of the Originator and a certificate
of good standing of the Originator under the laws of the State of
Delaware.
13
(i) The Underwriter shall have received from the Servicer, in form and
substance satisfactory to counsel for the Underwriter.
(i) An officer's certificate stating that on the Closing Date the
representations and warranties of the Servicer contained in the
Servicing Agreement will be true and correct and no event has occurred
with respect to the Servicer that would constitute an Event of Default
thereunder;
(ii) An officer's certificate relating to the Servicing Agreement and
the obligations of the Servicer thereunder, as Servicer or otherwise,
and attached thereto the applicable resolutions of the board of
directors of the Servicer, together with copies of the certificate of
limited partnership and by-laws of the Servicer and a certificate of
good standing of the Servicer issued by the State of Delaware; and
(iii) The Underwriter shall have received from counsel to the
Originator and the Servicer, a favorable opinion, dated the Closing
Date and satisfactory in form and substance to counsel for the
Underwriter.
(j) The Underwriter shall have received copies of any opinions of counsel
to the Company, the Seller, the Originator and the Servicer supplied to the
Rating Agency or the Indenture Trustee relating to certain matters with
respect to the Notes. Any such opinions shall be dated the Closing Date and
addressed to the Underwriter or accompanied by the reliance letters to the
Underwriter or shall state that the Underwriter may rely upon them.
(k) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be satisfactory in
form and substance to the Underwriter and counsel for the Underwriter, and
the Underwriter and counsel for the Underwriter shall have received such
other information, certificates and documents as they may reasonably
request.
(l) All documents required under the Purchase Agreement have been provided
to the appropriate parties.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriter and counsel for the Underwriter, this Agreement
and all obligations of the Underwriter hereunder may be cancelled at, or at any
time prior to, the Closing Date by the Underwriter. Notice of such cancellation
shall be given to the Company in writing, or by telephone or telegraph confirmed
in writing.
14
7. Reimbursement of Underwriter's Expenses. If the sale to the Underwriter
of the Notes as provided for herein is not consummated because any condition to
the obligations of the Underwriter set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Origen Companies to perform any agreement herein or comply with any provisions
hereof, other than by reason of default by the Underwriter, the Origen Companies
will reimburse the Underwriter upon demand for all out-of-pocket expenses,
including reasonable fees and disbursements of counsel, that shall have been
incurred by the Underwriter in connection with the proposed purchase and sale of
the Notes.
8. Indemnification and Contribution. The Company agrees with the
Underwriter that:
(a) The Origen Companies will, jointly and severally, indemnify and hold
harmless the Underwriter, the directors, officers, employees and agents of
the Underwriter, and each person who controls the Underwriter within the
meaning of either the 1933 Act or the 1934 Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the 1933 Act, the 1934 Act or other federal
or state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in (i) the Registration
Statement, or in the Basic Prospectus, any Preliminary Final Prospectus or
Final Prospectus, or in any amendment thereof 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, or (ii) any Time of Sale Information
or the omission or alleged omission to state a material fact required to
make the statements therein, in light of the circumstances under which they
were made, not misleading, which in each case was not corrected by
Corrective Information subsequently supplied by the Depositor to the
Underwriter resonably prior to the Time of Sale, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that
the Origen Companies will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission made (i) therein in reliance upon and in conformity with
any Underwriter's Information or (ii) in any Derived Information in the
Term Sheet or required to be provided by the Underwriter to the Company
pursuant to Section 4(b). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) The Underwriter will indemnify and hold harmless the Company, its
directors, each of the Company's officers who signs the Registration
Statement, and each person, if any, who controls the Company within the
meaning of either
15
the 1933 Act or the 1934 Act, to the same extent as the foregoing indemnity
from the Origen Companies to the Underwriter, but only with reference to
(i) Derived Information or (ii) the Underwriter's Information. This
indemnity agreement will be in addition to any liability that the
Underwriter may otherwise have.
(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 failure to so notify the indemnifying party
(i) will not relieve it from liability under paragraph 8(a) or 8(b) above
unless such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph 8(a) or 8(b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, 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 that are different from or additional to
those available to the indemnifying party, (iii) 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
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent (i) does not include
a statement as to or admission of, fault, culpability or a failure to act
by or on behalf of any such indemnified party, and (ii)includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
16
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 8 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Origen Companies on grounds of
policy or otherwise, the Origen Companies and the Underwriter shall
contribute to the aggregate losses, claims, damages and liabilities
(including legal and other expenses reasonably incurred in connection with
investigating or defending same) (collectively, "Losses") to which the
Origen Companies and the Underwriter may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Origen
Companies and the Underwriter from the offering of the Notes. If the
allocation provided by the immediately preceding sentence is unavailable
for any reason, the Origen Companies and the Underwriter shall contribute
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Origen Companies and the
Underwriter in connection with the statements or omissions that resulted in
such Losses as well as any other relevant equitable consideration. Benefits
received by the Origen Companies shall be deemed to be equal to the total
net proceeds from the offering (before deducting expenses) and benefits
received by an Underwriter shall be deemed to total discounts and
commissions received by the Underwriter. Relative fault shall be determined
by reference to whether any alleged untrue statement or omission relates to
the information provided by the Origen Companies or the Underwriter. The
Origen Companies and the Underwriter agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any
other method of allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the foregoing, in no
event shall the Underwriter be required to contribute any amount in excess
of the total discounts or commissions received by the Underwriter.
Notwithstanding the provisions of this paragraph 8(d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section
8, each person, if any, who controls the Underwriter within the meaning of
the 1933 Act or the 1934 Act and each director, officer, employee and agent
of the Underwriter shall have the same rights to contribution as the
Underwriter, and each person, if any, who controls the Origen Companies
within the meaning of either the 1933 Act or the 1934 Act, each officer of
an Origen Company who shall have signed the Registration Statement and each
director of such Origen Company shall have the same rights to contribution
as such Origen Company, subject in each case to the applicable terms and
conditions of this paragraph 8(d).
(e) For purposes hereof, as to the Underwriter, the term "Derived
Information" means such information, if any, in the Term Sheet that is not
contained in either (i) the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or Final Prospectus or amendments or
supplements thereto, taking into account information incorporated therein
by reference (other than information incorporated by reference from the
Term Sheet) or (ii) any Pool
17
Information. "Derived Information" also excludes any omission or alleged
omission or misstatement or alleged misstatement resulting from an error in
any Issuer Information or the Pool Information. "Pool Information" means
the information furnished to the Underwriter with respect to the
characteristics of the Contracts. "Issuer Information" means such
information as defined in Rule 433(h) under the Securities Act.
9. [Reserved].
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriter, by notice given to the Origen Companies
prior to delivery of and payment for all Notes if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited, or minimum prices shall have been established in such Exchange, (ii)
a banking moratorium shall have been declared by either federal or New York
State authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis, or there shall have occurred such
a material adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets of the
United States shall be such) which is material and adverse, and in the case of
any of the events specified in this clause (iii) such event makes it in the
judgment of the Underwriter, impractical or inadvisable to proceed with the
public offering or the delivery of the Notes on the terms and in the manner
contemplated in the Prospectus Supplement.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and the Underwriter set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or
on behalf of the Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Notes. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriter, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Managing Director, the Financial Institutions
Department; or, if sent to the Origen Companies, will be mailed, delivered or
telegraphed and confirmed to it at Origen Residential Securities, Inc. 00000
Xxxxx Xxxxxxxx Xxxx Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxxxx,
Xxxx Xxxxxxxxxx and Xxxx Xxxxxx.
13. Successors. This 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.
18
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York. This 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.
19
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 Origen
Companies and the Underwriter.
Very truly yours,
ORIGEN RESIDENTIAL SECURITIES, INC.
By: /s/ X. Xxxxx
------------------------------------
Name: X. Xxxxx
Title: CEO
ORIGEN SECURITIZATION COMPANY, LLC
By: /s/ X. Xxxxx
------------------------------------
Name: X. Xxxxx
Title: CEO
ORIGEN FINANCIAL L.L.C.
By: /s/ X. Xxxxx
------------------------------------
Name: X. Xxxxx
Title: CEO
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
20
SCHEDULE I
Underwriting Agreement, dated December 08, 2005
As used in this Agreement, the term "Registration Statement" refers to
registration statement No. 333-117573 filed by the Company on Form S-3 and
declared effective on August 16, 2004, as amended to date. The term "Basic
Prospectus" refers to the form of Prospectus filed with the Commission pursuant
to Rule 424 under the 1933 Act after the Registration Statement became
effective.
Title and Description of Notes: Origen Manufactured Housing Contract Trust
Collateralized Notes, Series 2005-B.
Initial aggregate principal balance of the Notes: $156,187,000 (Approximate)
Class Designation Initial Note Principal Balance (1) Note Rate S&P Xxxxx'x
----------------- ---------------------------------- --------- ----- -------
Class A-1 $40,692,000 5.250% Aaa AAA
Class A-2 $39,295,000 5.247% Aaa AAA
Class A-3 $13,428,000 5.605% Aaa AAA
Class A-4 $19,897,000 5.910% Aaa AAA
Class M-1 $15,750,000 5.990% Aa2 AA
Class M-2 $11,375,000 6.480% A2 A
Class B-1 $12,250,000 7.200% Baa2 BBB
Class B-2 $ 3,500,000 7.200% Baa3 N/R
(1) Approximate.
(2) Subject to a rate cap as described in the Indenture.
Closing Time, Date and Location: 10:00 AM. on December 15, 2005 at the offices
of Hunton & Xxxxxxxx LLP, Riverfront Plaza- East Tower, 000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx, 00000-0000 and denominations as the Underwriter may direct
in accordance with the Underwriting Agreement.
21
SCHEDULE II
Underwriting Discount
Class Principal Amount (1) Price to Public (2) and Commission Proceeds to Depositor
----- -------------------- ------------------- --------------------- ---------------------
Class A-1 $40,692,000 5.250% 99.993% 0.350%
Class A-2 $39,295,000 5.247% 99.998% 0.350%
Class A-3 $13,428,000 5.605% 99.990% 0.350%
Class A-4 $19,897,000 5.910% 99.980% 0.350%
Class M-1 $15,750,000 5.990% 99.953% 0.350%
Class M-2 $11,375,000 6.480% 99.948% 0.350%
Class B-1 $12,250,000 7.200% 95.814% 0.350%
Class B-2 $ 3,500,000 7.200% 89.758% 0.350%
(1) Approximate.
(2) Plus accrued interest from December 1, 2005
22
