Exhibit 4.4
SPREAD ACCOUNT PLEDGE AGREEMENT
SUB-POOL C
This Sub-Pool C Spread Account Pledge Agreement is dated as of March
1, 1998, by and among Green Tree RECS II Guaranty Corporation (the "Pledgor"),
U.S. Bank National Association (fka First Trust National Association), as
Collateral Agent (together with its permitted successors hereunder, the
"Collateral Agent"), and U.S. Bank Trust National Association, as Trustee (the
"Trustee") of Green Tree Recreational, Equipment & Consumer Trust 1998-A (the
"Trust").
Green Tree Financial Corporation ("Green Tree") has sold a pool ("Sub-
Pool C") of retail installment sales contracts and promissory notes for the
purchase of a variety of consumer products and equipment (the "Consumer Product
Contracts") under a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of March 1, 1998 between Green Tree, as originator of the
Trust and servicer, and the Trustee, as trustee. On the establishment of the
Trust in accordance with the terms of the Pooling and Servicing Agreement, the
Trustee will issue to, or upon the order of, Green Tree certificates (the "Sub-
Pool C Certificates") representing undivided fractional interests in Sub-Pool C.
In order to facilitate the sale of the Sub-Pool C Certificates by Green Tree,
the Pledgor is entering into this Agreement.
Section 1. Definitions. All capitalized terms not otherwise defined
herein shall have the meanings assigned to them in the Pooling and Servicing
Agreement, as existing on the Closing Date. The following terms have the
following meanings:
"Letter of Credit" means any irrevocable letter of credit, or any
replacement Letter of Credit, obtained in accordance with Section 3(h).
"Qualified Bank" means any depository institution whose unsecured
long- term debt (or in the case of the principal bank in a bank holding company
system the unsecured long-term debt of such bank holding company) has been rated
in one of the two highest rating categories by each of Standard & Poor's and
Fitch (if rated by Fitch), and whose short-term debt (or in the case of the
principal bank in a bank holding company system the short-term debt of such bank
holding company) is rated in the highest rating category by each of Standard &
Poor's and Fitch (if rated by Fitch).
"Shortfall" means an insufficiency of funds on a Distribution Date as
specified in a Spread Account Deficiency Notice.
"Sub-Pool C Spread Account Eligible Investments" means Eligible
Investments held by the Collateral Agent in the Sub-Pool C Spread Account, which
(a) if such Eligible Investments are securities, are (i) certificated
securities (as such term is used in Minn. Stat. (S) 336.8-102(a)(4)), securities
deemed to be certificated securities under applicable regulations of the United
States government, or uncertificated securities issued by an issuer organized
under the laws of the State of New York or the State of Delaware, (ii) either
(A) in the possession of such Eligible Institution, (B) in the possession of a
clearing corporation (as such term is used in Minn. Stat. (S) 336.8-102(a)(5))
in the State of New York, registered in the name of such clearing corporation or
its nominee, not endorsed for collection or surrender or any other purpose not
involving transfer, not containing any evidence of a right or interest
inconsistent with the Trustee's security interest therein, and held by such
clearing corporation in an account of such Eligible Institution, (C) held in an
account of such Eligible Institution with the Federal Reserve Bank of New York
or the Federal Reserve Bank of Minneapolis, or (D) in the case of uncertificated
securities, issued in the name of such Eligible Institution, (iii) identified,
by book entry or otherwise, as held for the account of the Collateral Agent on
the records of such Eligible Institution, and such Eligible Institution shall
have sent the Collateral Agent a confirmation thereof, and (iv) identified, by
book entry or otherwise, as held for the account of, or pledged to, the Trustee
on the records of the Collateral Agent, and the Collateral Agent shall have sent
the Trustee a confirmation thereof, (b) if such Eligible Investments are
repurchase obligations, are: (i) held in an account with an Eligible Institution
in the name of the Collateral Agent, (ii) identified by such Eligible
Institution, by book entry or otherwise, as held for the account of the
Collateral Agent, (iii) identified by the Collateral Agent as held for the
account of, or pledged to, the Trustee on the records of the Collateral Agent,
and (iv) related to securities held in accordance with the requirements of
clause (a) above, and (c) with respect to Eligible Investments other than
securities and repurchase agreements, which are held in a manner acceptable to
the Collateral Agent. Subject to the other provisions hereof, the Collateral
Agent shall have sole control over each such investment and the income thereon,
and any certificate or other instrument evidencing any such investment, if any,
shall be delivered directly to the Collateral Agent or its agent, together with
each document of transfer, if any, necessary to transfer title to such
investment to the Collateral Agent in a manner which complies with this
definition.
Section 2. Representations and Warranties of the Pledgor. The
---------------------------------------------
Pledgor represents and warrants that:
a. Organization and Good Standing. The Pledgor is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Minnesota and has the corporate power to own its assets and to transact
the business in which it is currently engaged. The Pledgor is duly qualified to
do business as a foreign corporation and is in good standing in each
jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material
-2-
adverse effect on the business, properties, assets, or condition (financial or
other) of the Pledgor.
b. Authorization; Binding Obligations. The Pledgor has the power
and authority to make, execute, deliver and perform this Agreement and all of
the transactions contemplated under the Agreement, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of the Pledgor enforceable in accordance
with its terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by the availability of equitable remedies.
c. No Consent Required. The Pledgor is not required to obtain the
consent of any other party or any consent, license, approval or authorization
from, or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except that no representation is made as to
the manner of offering of the Certificates (except that the Pledgor has not
offered for sale, or solicited offers to purchase, any Certificate).
d. No Violations. The execution, delivery and performance of this
Agreement by the Pledgor will not violate any provision of any existing law or
regulation or any order or decree of any court or the Articles of Incorporation
or Bylaws of the Pledgor, or constitute a material breach of any mortgage,
indenture, contract or other agreement to which the Pledgor is a party or by
which the Pledgor may be bound.
e. Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or to the
knowledge of the Pledgor threatened, against the Pledgor or any of its
properties or with respect to this Agreement or the Certificates which (i) if
adversely determined, would have a material adverse effect on the transactions
contemplated by this Agreement or (ii) is likely to have a material adverse
effect on the financial condition or business prospects of the Pledgor.
Section 3. Establishment and Pledge of Sub-Pool C Spread Account.
-----------------------------------------------------
a. Establishment of Spread Account. On or prior to the Closing
Date, the Pledgor shall establish with the Collateral Agent three segregated
trust accounts referred to collectively herein as the "Sub-Pool C Spread
Account." The three accounts comprising the Sub-Pool C Spread Account shall be
maintained in the name of the Collateral Agent and designated respectively as
follows: (1) "U.S. Bank National Association, as Collateral Agent on behalf of
U.S. Bank Trust
-3-
National Association, as Trustee for the benefit of the Class A-2C Certificates
issued by Green Tree Recreational Equipment & Consumer Trust 1998-A (Class A-2C
Spread Subaccount, Green Tree RECS II Guaranty Corporation, Pledgor);" (2) "U.S.
Bank National Association, as Collateral Agent on behalf of U.S. Bank Trust
National Association, as Trustee for the benefit of the Class A-3C Certificates
issued by Green Tree Recreational Equipment & Consumer Trust 1998-A (Class A-3C
Spread Subaccount, Green Tree RECS II Guaranty Corporation, Pledgor);" and (3)
"U.S. Bank National Association, as Collateral Agent on behalf of U.S. Bank
Trust National Association, as Trustee for the benefit of the Class A-4C
Certificates issued by Green Tree Recreational Equipment & Consumer Trust 1998-A
(Class A-4C Spread Subaccount, Green Tree RECS II Guaranty Corporation,
Pledgor)." The Sub-Pool C Spread Account is separate from the Trust and any
amount on deposit therein will not constitute a part of the property of the
Trust. For all tax purposes, the Sub-Pool C Spread Account and all amounts
deposited therein and investments thereof are owned by the Pledgor, and all
assets transferred to the Sub-Pool C Spread Account are taxable to the Pledgor.
The Sub-Pool C Spread Account shall be maintained by the Collateral Agent at all
times separate and apart from any other account of the Pledgor or the Trust, at
an Eligible Institution (which may be the Collateral Agent or the Trustee) or in
an account otherwise acceptable to Fitch and Standard & Poor's. All amounts paid
to the Pledgor under Section 8.03(a)(8), (12), (16) and (20) and Section
8.03(d)(23) of the Pooling and Servicing Agreement shall be deposited into the
Sub-Pool C Spread Account as provided in the Pooling and Servicing Agreement.
Amounts shall be withdrawn from the Sub-Pool C Spread Account only in accordance
with the provisions of this Section 3 and Section 8.06 of the Pooling and
Servicing Agreement. No passbook, certificate of deposit or other similar
instrument evidencing the Sub-Pool C Spread Account shall be issued, and all
contracts, receipts and other papers governing or evidencing the Sub-Pool C
Spread Account or any of the Collateral shall be delivered to the Collateral
Agent. On termination of this Agreement, as provided in Section 3(f), any amount
remaining in the Sub-Pool C Spread Account shall be released to the Pledgor.
b. Pledge of Sub-Pool C Spread Account.
-----------------------------------
(i) The Pledgor hereby pledges, assigns, hypothecates, transfers and
delivers to the Collateral Agent (for the benefit of the Trustee and the Class
A-2C Certificateholders), and hereby grants the Collateral Agent (for the
benefit of the Trustee and the Class A-2C Certificateholders) a security
interest in, all of the Pledgor's right, title, interest and power, free and
clear of any other interest, in, to and with respect to, the Class A-2C Spread
Subaccount up to the Class A-2C Spread Subaccount Required Amount, the amounts
deposited therein, the investments thereof and all proceeds of the liquidation
of any investment thereof. Such grant is made to secure the payment, on each
Distribution Date, of any Shortfall with respect to the Class A-2C Certificates
on such Distribution Date, subject to the limit of the amount available in the
Class A-2C Spread Subaccount plus any subsequent deposits
-4-
into the Class A-2C Spread Subaccount. The Collateral Agent and the Trustee
acknowledge and accept the grant of the security interest in the Class A-2C
Spread Subaccount for the benefit of the Class A-2C Certificateholders under
this Section 3(b)(i) in accordance with the terms hereof.
(ii) The Pledgor hereby pledges, assigns, hypothecates, transfers and
delivers to the Collateral Agent (for the benefit of the Trustee and the Class
A-3C Certificateholders), and hereby grants the Collateral Agent (for the
benefit of the Trustee and the Class A-3C Certificateholders) a security
interest in, all of the Pledgor's right, title, interest and power, free and
clear of any other interest, in, to and with respect to, the Class A-3C Spread
Subaccount up to the Class A-3C Spread Subaccount Required Amount, the amounts
deposited therein, the investments thereof and all proceeds of the liquidation
of any investment thereof. Such grant is made to secure the payment, on each
Distribution Date, of any Shortfall with respect to the Class A-3C Certificates
on such Distribution Date, subject to the limit of the amount available in the
Class A-3C Spread Subaccount plus any subsequent deposits into the Class A-3C
Spread Subaccount. The Collateral Agent and the Trustee acknowledge and accept
the grant of the security interest in the Class A-3C Spread Subaccount for the
benefit of the Class A-3C Certificateholders under this Section 3(b)(ii) in
accordance with the terms hereof.
(iii) The Pledgor hereby pledges, assigns, hypothecates, transfers and
delivers to the Collateral Agent (for the benefit of the Trustee and the Class
A-4C Certificateholders), and hereby grants the Collateral Agent (for the
benefit of the Trustee and the Class A-4C Certificateholders) a security
interest in, all of the Pledgor's right, title, interest and power, free and
clear of any other interest, in, to and with respect to, the Class A-4C Spread
Subaccount up to the Class A-4C Spread Subaccount Required Amount, the amounts
deposited therein, the investments thereof and all proceeds of the liquidation
of any investment thereof. Such grant is made to secure the payment, on each
Distribution Date, of any Shortfall with respect to the Class A-4C Certificates
on such Distribution Date, subject to the limit of the amount available in the
Class A-4C Spread Subaccount plus any subsequent deposits into the Class A-4C
Spread Subaccount. The Collateral Agent and the Trustee acknowledge and accept
the grant of the security interest in the Class A-4C Spread Subaccount for the
benefit of the Class A-4C Certificateholders under this Section 3(b)(iii) in
accordance with the terms hereof.
(iv) The Pledgor and the Collateral Agent shall maintain, at all times
during the term of this Agreement, the lien on, or security interest in, the
Sub-Pool C Spread Account as a valid and perfected security interest of first
priority under the Uniform Commercial Code (or other applicable law) as in
effect from time to time in the state where the Sub-Pool C Spread Account is
located in order to secure the full and timely performance of the obligations of
the Pledgor pursuant to this Agreement. Amounts properly withdrawn by the
Collateral Agent and paid into
-5-
the Sub-Pool C Collection Account pursuant to
Section 3(d) or properly withdrawn by the Collateral Agent and paid to the
Pledgor pursuant to Section 3(e) shall be deemed released from the provisions of
this Section 3(b) and the security interest established by this Section 3(b),
and the Pledgor shall in no event be required to refund any such distributed
amount.
c. Investment of Sub-Pool C Spread Account. The Collateral Agent
shall at the written direction of the Pledgor invest the funds in the Sub-Pool C
Spread Account in Sub-Pool C Spread Account Eligible Investments. Funds in the
Sub-Pool C Spread Account shall be invested in investments that mature on or
before the Business Day prior to each Distribution Date. Upon any such
investment, the Collateral Agent shall (i) make an appropriate notation of the
Trustee's security interest in such Sub-Pool C Spread Account Eligible
Investment by book entry or otherwise and (ii) send the Trustee a written
confirmation of its security interest in such Sub-Pool C Spread Account Eligible
Investment. All income and gain realized from any such investments as well as
any interest earned on deposits in the Sub-Pool C Spread Account shall be
deposited and retained in the Sub-Pool C Spread Account. Losses, if any,
realized on amounts in the Sub-Pool C Spread Account invested pursuant to this
paragraph shall first be credited against undistributed investment earnings on
amounts in the Sub-Pool C Spread Account invested pursuant to this paragraph,
and shall thereafter be deemed to reduce the amount on deposit in the Sub-Pool C
Spread Account. The Pledgor and the Collateral Agent shall not be liable for
the amount of any loss incurred in respect of any investment, or lack of
investment, of funds held in the Sub-Pool C Spread Account. All income or loss
on funds held in the Sub-Pool C Spread Account shall be taxable to the Pledgor.
d. Payment of Shortfall. Upon the Collateral Agent's receipt of a
Sub-Pool C Spread Account Deficiency Notice, the Collateral Agent shall
transfer, and the Pledgor hereby directs the Collateral Agent to transfer,
subject to the limit of the amount available in the Sub-Pool C Spread Account,
the amount of the Shortfall from the Sub-Pool C Spread Account to the Sub-Pool C
Collection Account.
e. Release of Sub-Pool C Spread Account Excess. If on any
Distribution Date, the amount in the Class A-2 C Spread Subaccount exceeds the
Class A-2 C Spread Subaccount Required Amount immediately following the payment
to Certificateholders on such Distribution Date, or the amount in the Class A-3
C Spread Subaccount exceeds the Class A-3 C Spread Subaccount Required Amount
immediately following the payment to Class A-3C Certificateholders on such
Distribution Date, or the amount in the Class A-4 C Spread Subaccount exceeds
the Class A-4 C Spread Subaccount Required Amount immediately following the
payment to Class A-4 Certificateholders on such Distribution Date, the
Collateral Agent shall withdraw the amount of such excess from the applicable
Sub-Pool C Spread Account and distribute such amount to the Pledgor.
-6-
f. Termination. This Agreement shall terminate (after distribution
of any funds remaining in the Sub-Pool C Spread Account pursuant to the
following sentence) on the termination of the Pooling and Servicing Agreement in
accordance with Section 12.03 thereof. On the Final Distribution Date, any
amount remaining in the Sub-Pool C Spread Account, after payment of any amounts
into the Sub-Pool C Collection Account pursuant to Section 3(d), shall be
distributed to the Pledgor.
g. Nature of Obligations. The obligations of the Pledgor under the
Agreement to transfer the amount of any Shortfall to the Sub-Pool C Collection
Account shall be unconditional and irrevocable and shall not terminate upon, or
otherwise be affected by, a Service Transfer pursuant to Article VII of the
Pooling and Servicing Agreement.
h. Letter of Credit and Other Credit Enhancement.
---------------------------------------------
(i) At any time, the Pledgor may obtain the release of all or a
portion of the cash on deposit in the Sub-Pool C Spread Account, by delivering
to the Collateral Agent (A) a Letter of Credit that satisfies the conditions set
forth in Section 3(h)(iii) or (B) any other form of credit enhancement that
satisfies the conditions set forth in Section 3(h)(iv). Section 3(h)(ii) shall
be operative only after a Letter of Credit that satisfies the conditions of
Section 3(h)(iii) has been delivered to the Collateral Agent.
(ii) If the expiration date of a Letter of Credit is anticipated to
occur before the termination of the Trust pursuant to Section 12.03 of the
Pooling and Servicing Agreement, the Pledgor shall use its best efforts to
obtain a replacement Letter of Credit that satisfies the conditions of Section
3(h)(iii). If on or before the tenth Business Day prior to the expiration date
of such Letter of Credit, the Pledgor shall not have delivered to the Collateral
Agent a replacement Letter of Credit that satisfies the conditions set forth in
Section 3(h)(iii), the Collateral Agent shall, prior to 11:00 A.M. Minneapolis,
Minnesota time on the fifth Business Day prior to such expiration date, draw
under such Letter of Credit the amount (the "Final Draw Amount") available
thereunder, and deposit the Final Draw Amount in the Sub-Pool C Spread Account.
If, on or before such fifth Business Day, the Pledgor shall obtain on behalf of
and deliver to the Collateral Agent a replacement Letter of Credit that
satisfies the conditions of Section 3(h)(iii), then the Collateral Agent shall
replace the related Letter of Credit with such replacement Letter of Credit.
The Collateral Agent shall, when required pursuant to the terms of a
Letter of Credit, deliver the existing Letter of Credit to the related issuing
bank upon extension of the expiration date thereof in accordance with its terms
in exchange for the extended or amended Letter of Credit.
-7-
(iii) Any initial or replacement Letter of Credit delivered to the
Collateral Agent shall satisfy the following conditions:
(A) it shall be issued by a Qualified Bank or confirmed by a
Qualified Bank;
(B) it and the related agreement that provides for the issuance
of such Letter of Credit shall be in such form and substance as is
acceptable to the Collateral Agent, and shall require the Qualified Bank to
give the Collateral Agent prompt notice if at any time it shall fail to be
a Qualified Bank;
(C) it shall be accompanied by an Opinion of Counsel or Opinions
of Counsel in form and substance satisfactory to the Collateral Agent as to
enforceability of the Letter of Credit; and
(D) Standard & Poor's and Fitch shall each have advised the
Trustee and the Collateral Agent in writing that it will not downgrade,
withdraw or qualify its then-current ratings of the Class A-2C, A-3C and X-
0X Certificates as a result of the delivery and acceptance of such Letter
of Credit.
The cost of obtaining and maintaining any initial or replacement
Letter of Credit shall be borne solely by the Pledgor and Green Tree. If
the Collateral Agent receives notice that the institution issuing such
Letter of Credit is no longer a Qualified Bank, the Collateral Agent shall
immediately notify the Pledgor. On the day of receipt of such notice (or
the next Business Day thereafter, if such day is not a Business Day), the
Collateral Agent shall draw under the Letter of Credit the full amount
available under such Letter of Credit and deposit the proceeds thereof in
immediately available funds in the Sub-Pool C Spread Account.
(iv) Any other form of credit enhancement delivered to the Collateral
Agent shall be satisfactory if and only if Standard & Poor's and Fitch shall
each have advised the Trustee and the Collateral Agent in writing that it will
not downgrade, withdraw or qualify its then-current ratings of the Class A-2C,
A-3C and A-4C Certificates as a result of the delivery and acceptance of such
alternate form of credit enhancement.
The cost of obtaining and maintaining any such alternate form of
credit enhancement shall be borne solely by the Pledgor and Green Tree.
(v) At any time when the Collateral Agent holds any Letter of Credit
or other form of credit enhancement, (x) the amount available to be drawn under
such Letter of Credit or other form of credit enhancement shall be deemed to be
in
-8-
the Sub-Pool C Spread Account for purposes of determining whether the balance
thereof equals or exceeds the Required Sub-Pool C Spread Account Amount, and (y)
if a Shortfall is determined to exist with respect to any Distribution Date, the
Collateral Agent shall draw the lesser of (1) the amount available to be drawn
under the Letter of Credit or other form of credit enhancement, or (2) the
amount, if any, by which the Shortfall exceeds the amount in the Sub-Pool C
Spread Account in a form other than a Letter of Credit or other form of credit
enhancement, and deposit such amount to the Sub-Pool C Spread Account, for
transfer to the Sub-Pool C Collection Account, on the Business Day prior to such
Distribution Date.
Section 4. Appointment of Collateral Agent.
-------------------------------
a. Subject to the terms and conditions herein, the Trustee hereby
appoints the Collateral Agent and the Collateral Agent hereby accepts such
appointment, as its agent to maintain, and to act on the Trustee's behalf with
respect to the Sub-Pool C Spread Account.
b. The Collateral Agent shall maintain records that accurately
reflect the funds on deposit in the Sub-Pool C Spread Account. On each
Determination Date, the Collateral Agent shall advise the Servicer as to the
amount of funds on deposit in the Sub-Pool C Spread Account.
Section 5. Covenants of Pledgor. The Pledgor covenants and agrees as
--------------------
follows:
a. Maintenance of Pledgor Assets. The Pledgor shall not issue any
dividends, redeem any outstanding capital stock, grant any liens on its assets
(other than pursuant to this Agreement or similar agreements) or in any way
deplete corporate assets if, as a result of such issuance, redemption or
depletion, the total net assets of the Pledgor are less than the sum of the
Required Sub-Pool C Spread Account Amount and the Pledgor's obligations under
other agreements similar to this Agreement, plus any income taxes then payable
by the Pledgor and the Pledgor's foreseeable administrative and operating
expenses for the next year.
b. Limitation of Certain Actions. The Pledgor will not, without the
unanimous agreement of the Board of Directors and the written consent of the
Collateral Agent and the Trustee, take any of the following actions:
(i) engage in any business other than that of providing partial
guarantees on, or pledging assets to secure, pools of contracts serviced by
Green Tree, pledge assets for the benefit of any other Person (except to
secure pools of contracts serviced by Green Tree), make any loans or
advances to any Person, guarantee or become obligated for the debts of any
other Person (except for providing partial guaranties of pools of contracts
serviced by Green
-9-
Tree), or hold out its credit as being available to satisfy the obligations
of others;
(ii) voluntarily dissolve or liquidate;
(iii) commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent to
the entry of any order for relief in an involuntary case under any such
law, or consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian or sequestrator (or other similar
official) of the Pledgor or for any substantial part of its property, or
make any general assignment for the benefit of its creditors, or admit in
writing its inability to pay its debts as they become due, or take any
corporate action in furtherance of the foregoing;
(iv) consolidate or merge with or into any other Person;
(v) delete or amend Articles 3, 5, 6 or 8 of its Articles of
Incorporation;
(vi) commingle assets with those of any other Person; or
(vii) acquire obligations or securities of Green Tree or any other
shareholder of Pledgor.
c. Required Actions. The Pledgor shall (unless excused by unanimous
agreement of the Board of Directors and the written consent of the Collateral
Agent and the Trustee) take the following actions:
(i) maintain books, records, accounts and financial statements
separate from any other Person;
(ii) conduct its own business in its own name, pay its own liabilities
out of its own funds (including paying the salaries of its own employees)
and maintain adequate capital in light of its contemplated business
operations;
(iii) observe all corporate formalities and maintain an arm's-length
relationship with its Affiliates (including allocating fairly and
reasonably any overhead for shared office space, using separate stationery,
invoices and checks and maintaining a sufficient number of employees in
light of its contemplated business operations); and
(iv) hold itself out as a separate entity and correct any known
misunderstanding regarding its separate identity.
-10-
d. Other Transactions. If the Pledgor provides any partial guaranty
or other form of credit enhancement with respect to any pool of contracts other
than pursuant to this Agreement, the Pledgor must obtain written confirmation,
from each of Standard & Poor's and Fitch that is not providing a rating with
respect to the securities related to such other pool of contracts, that
providing such other credit enhancement will not cause a reduction or withdrawal
of such Person's ratings of any Class of Certificates.
e. Notices to Rating Agencies. The Pledgor shall provide prompt
written notice to each of Fitch and Standard & Poor's of any amendment to the
Pledgor's Articles of Incorporation or this Agreement.
Section 6. Miscellaneous.
-------------
a. Merger or Consolidation of the Pledgor. The Pledgor shall keep
in full effect its existence, rights and franchises as a corporation and shall
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement.
Any person into which the Pledgor may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Pledgor shall be a party, or any Person succeeding to all or substantially
all of the business of the Pledgor, shall be the successor of the Pledgor
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
b. Amendment. This Agreement may be amended from time to time by
the Pledgor, the Collateral Agent and the Trustee, with notice to Fitch and
Standard & Poor's, without the consent of any of the Certificateholders, to
correct manifest error, to cure any ambiguity, to correct or supplement any
provisions herein, as the case may be, or to add any other provisions with
respect to matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement; provided, however, that such
action shall not, as evidenced by an Opinion of Counsel for the Pledgor,
adversely affect in any material respect the interests of any Certificateholder.
This Agreement may also be amended from time to time by the Pledgor,
the Collateral Agent and the Trustee, with notice to Fitch and Standard & Poor's
and with the consent of Holders of Certificates evidencing Certificate
Percentage Interests aggregating 51% or more, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall (a) reduce
in any manner the
-11-
amount of, or delay the timing of, payments required to be made by the Pledgor
under this Agreement, or (b) reduce the aforesaid percentage required to consent
to any such amendment, without the consent of the Holders of all Certificates
then outstanding.
c. Notices. All communications and notices pursuant hereto to the
Pledgor, the Collateral Agent and the Trustee shall be in writing and delivered
or mailed to it at the appropriate following address:
If to the Pledgor:
Green Tree RECS II Guaranty Corporation
1700 Landmark Towers
000 Xx. Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Chief Financial Officer
If to the Collateral Agent:
U.S. Bank National Association
c/o U.S. Bank Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Administration, Structured Finance
If to the Trustee:
U.S. Bank Trust National Association
Corporate Trust Department
000 Xxxx 0xx Xxxxxx
Xxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Administration,
Structured Finance
or at such other address as the party may designate by notice to the other
parties hereto, which notice shall be effective when received.
All communications and notices pursuant hereto to a Certificateholder
shall be in writing and delivered or mailed at the address shown in the
Certificate Register.
-12-
d. Merger and Integration. Except as specifically stated otherwise
herein, this Agreement, together with the Pooling and Servicing Agreement, sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement together with the Pooling and Servicing Agreement. This Agreement may
not be modified, amended, waived or supplemented except as provided herein.
e. Benefit of the Agreement. The Agreement shall be binding upon
the parties hereto and their permitted successors and shall be for the direct
benefit of each present and future Certificateholder without any further action
on the part of any such Certificateholder.
f. Headings. The headings herein are for purposes of reference only
and shall not otherwise affect the meaning or interpretation of any provision
hereof.
g. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Minnesota.
h. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
-13-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized this 31st day
of March, 1998.
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxxx Xxxxxxx-Xxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx-Xxxx
Title: Trust Officer
GREEN TREE RECS II GUARANTY CORPORATION,
as Pledgor
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President and Secretary
U.S. BANK NATIONAL
ASSOCIATION, as Collateral Agent
By: /s/ Xxxxxx Xxxxxxx-Xxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx-Xxxx
Title: Trust Officer
-14-
