$_______________
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1995-1, Class A
and
$_______________
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1995-1, Class B
GREEN TREE FLOORPLAN RECEIVABLES MASTER TRUST
UNDERWRITING AGREEMENT
----------------------
November __, 1995
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
World Financial Center
North Tower
New York, New York 10281
BEAR, XXXXXXX & CO. INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Green Tree Floorplan Funding Corp. ("Funding") is a Delaware corporation
with its principal place of business in Saint Xxxx, Minnesota. Funding has
filed a Registration Statement relating to the issuance and sale of $___________
(Floating Rate) Floorplan Receivable Trust Certificates, Series 1995-1, Class A
and $___________ (Floating Rate) Floorplan Receivable Trust Certificates, Series
1995-1, Class B (the "Certificates") evidencing interests in Green Tree
Floorplan Receivables Master Trust (the "Trust"). The Certificates will be
issued pursuant to a pooling and servicing agreement (the "Pooling and Servicing
Agreement") dated as of ____________ 1, 1995 among Funding, as transferor, Green
Tree Financial Corporation, as servicer (the "Company" or the "Servicer"), and
________________________, as Trustee. The assets of the Trust will consist of
(i) all wholesale receivables (the "Receivables") generated from time to
time in a portfolio of revolving financing arrangements between the Company and
certain manufactured housing dealers (the "Accounts") satisfying certain
criteria described in the Prospectus, (ii) all funds collected from Obligors in
respect of the Receivables, (iii) all right, title, and interest of Funding in,
to, and under a receivables purchase agreement between Funding, the Company and
the Trust, dated as of _____________, 1995 (the "Purchase Agreement"), (iv) the
benefit of funds on deposit in the Excess Funding Account, (v) Recoveries and
(vi) proceeds of the foregoing. The Receivables will be purchased from the
Company by Funding pursuant to the Purchase Agreement and thereafter transferred
to the Trust. The Company and Funding will be referred to collectively herein
as the "Green Tree Parties". The form of the Pooling and Servicing Agreement
has been filed as an exhibit to the Registration Statement (hereinafter
defined).
The Certificates are more fully described in a Registration Statement that
Funding has furnished to you. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement and
the Purchase Agreement (together, the "Designated Agreements"). The term "you"
as used herein, unless the context otherwise requires, shall mean you and such
persons as are named as co-managers in the Terms Agreement (defined below).
The offering of the Certificates pursuant to this Agreement will be made
through you or through an underwriting syndicate managed by you. The Green Tree
Parties will also enter into an agreement (the "Terms Agreement") providing for
the sale of such Certificates to, and the purchase and offering thereof by, you
and such other underwriters, if any, selected by you as have authorized you to
enter into such Terms Agreement on their behalf (the "Underwriters", which term
shall include you whether acting alone in the sale of Certificates or as a
member of an underwriting syndicate). The Terms Agreement shall specify, among
other things, the price or prices at which the Certificates are to be purchased
by the Underwriters from the Trust and the initial public offering price or
prices or the method by which the price or prices at which such Certificates are
to be sold will be determined. The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an exchange
of any standard form of written telecommunication between you and the Company.
The offering of the Certificates will be governed by this Agreement, as
supplemented by the Terms Agreement, and this Agreement and the Terms Agreement
shall inure to the benefit of and be binding upon the Underwriters participating
in the offering of such Certificates.
Funding has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 33-62433) and a related
preliminary prospectus for the
2
registration of the Certificates under the Securities Act of 1933 (the "1933
Act"), and has filed, and proposes to file, such amendments thereto as may have
been required to the date hereof pursuant to the 1933 Act and the rules of the
Commission thereunder (the "Regulations"). Such registration statement, as
amended at the time when it became effective under the 1933 Act, and the
prospectus relating to the sale of Certificates constituting a part thereof, as
from time to time each is amended or supplemented pursuant to the 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively.
The Green Tree Parties understand that you propose to make a public
offering of the Certificates as soon as you deem advisable after this Agreement
and the Terms Agreement have been executed and delivered.
SECTION 1. Representations and Warranties. Each of the Green Tree Parties
represents and warrants to you as of the date hereof, and as of the date of the
Terms Agreement (in each case, the "Representation Date") as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective did, and as of the Representation
Date will, comply in all material respects with the requirements of the
1933 Act and the Regulations. The Registration Statement, at the time it
became effective did not, and as of the Representation Date will not,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, as amended or
supplemented at the time the Registration Statement became effective did
not, and as amended or supplemented as of the Representation Date will not,
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in, or omissions from, the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to Funding in writing by you
expressly for use in the Registration Statement or Prospectus. There are
no contracts or documents of any Green Tree Party which are required to be
filed as exhibits to the Registration Statement pursuant to the 1933 Act or
the Regulations which have not been so filed or incorporated by reference.
(b) Each of the Green Tree Parties has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
state of incorporation, with corporate power and authority to own, lease
and operate
3
its properties and conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement, the
Designated Agreements and the Terms Agreement as such Green Tree Party may
be a party to; and each of the Green Tree Parties is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which the ownership or lease of its properties or the
conduct of its business under the Designated Agreements requires such
qualification.
(c) Each of the Green Tree Parties is not in violation of its
certificate of incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which it is a party or by which it or its properties
may be bound, which default might result in any material adverse change in
the financial condition, earnings, affairs or business of any of the Green
Tree Parties or which might materially and adversely affect the properties
or assets thereof.
(d) The execution and delivery by the Green Tree Parties of this
Agreement and the Terms Agreement and the execution and delivery of the
Designated Agreements by a Green Tree Party are within the corporate power
of the related Green Tree Party and have been duly authorized by all
necessary corporate action on the part of the related Green Tree Party; and
neither the issuance and sale of the Certificates to the Underwriters, nor
the execution and delivery by the Green Tree Parties of this Agreement and
the Terms Agreement, nor the execution and delivery of the Designated
Documents by a Green Tree Party, nor the consummation by each of the Green
Tree Parties of any of the transactions therein contemplated, nor
compliance by any of the Green Tree Parties with the provisions hereof or
thereof, will materially conflict with or result in a material breach of,
or constitute a material default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on each of
the Green Tree Parties or its properties or the certificate of
incorporation or by-laws of each of the Green Tree Parties, or any of the
provisions of any indenture, mortgage, contract or other instrument to
which any Green Tree Party is a party or by which it is bound or result in
the creation or imposition of any lien, charge or encumbrance upon any of
its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument.
(e) This Agreement has been, and the Terms Agreement when executed
and delivered as contemplated hereby and thereby will have been, duly
authorized, executed and
4
delivered by the Green Tree Parties, and each constitutes, or will
constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against the Green Tree Parties in accordance with
its terms, subject (i) to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors rights
generally, (ii) as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law) and (iii) as to enforceability with respect to rights of indemnity
thereunder, to limitations of public policy under securities laws.
(f) The Designated Agreements when executed and delivered as
contemplated hereby and thereby will have been duly authorized, executed
and delivered by each Green Tree Party which is a party thereto, and will
constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against any Green Tree Party which is a party
thereto in accordance with its terms, subject (i) to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally and (ii) as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(g) As of the Closing Time (as defined below), the Certificates will
have been duly and validly authorized, and, when executed and authenticated
as specified in the Pooling and Servicing Agreement, will be validly issued
and outstanding and will be entitled to the benefits of the Pooling and
Servicing Agreement, and will be binding obligations of the Trust to the
extent provided in the Pooling and Servicing Agreement.
(h) No filing or registration with, notice to or consent, approval,
authorization or order of any court or governmental authority or agency is
required for the consummation by any of the Green Tree Parties of the
transactions contemplated by this Agreement, any of the Designated
Agreements or the Terms Agreement, except such as may be required under the
1933 Act, the Regulations, or state securities or Blue Sky laws.
(i) Each of the Green Tree Parties possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
business now operated by it and as described in the Prospectus and has
received no notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
5
ruling or finding, would materially and adversely affect the conduct of the
business, operations, financial condition or income of any of the Green
Tree Parties.
(j) None of the Green Tree Parties nor the Trust created by the
Pooling and Servicing Agreement will be subject to registration as an
"investment company" under the Investment Company Act of 1940, as amended
(the "1940 Act").
(k) The Certificates and the Designated Agreements conform in all
material respects to the descriptions thereof contained in the Prospectus.
(l) At the Closing Time, the Certificates shall have received the
certificate ratings specified in the Terms Agreement.
(m) At the Closing Time, each of the representations and warranties
of the Green Tree Parties set forth in any of the Transaction Documents
will be true and correct.
(n) As of the Closing Time, the Pooling and Servicing Agreement will
have been duly authorized, executed and delivered by, and will constitute a
legal, valid and binding obligation of, the Servicer, enforceable against
the Servicer in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally and as to enforceability, to general
principles of equity (regardless whether enforcement is sought in a
proceeding in equity or at law).
SECTION 2. Purchase and Sale. The commitment of the Underwriters to
purchase the Certificates pursuant to the Terms Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Certificates to be
purchased by you shall be made at the office of Brown & Wood, Xxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, New York 10048, or at such other place as shall be agreed upon
by you and the Green Tree Parties, at such time or date as shall be agreed upon
by you and the Green Tree Parties in the Terms Agreement (such time and date
being referred to as the "Closing Time"). Payment shall be made to the Trust,
in immediately available Federal funds wired to such bank as may be designated
by the Trust. The Certificates shall be in such denominations and registered in
such names as the Underwriters may request in writing at least two business days
prior to the Closing Time. The Certificates, which may be in temporary form,
will be made
6
available for examination and packaging by you no later than 12:00 noon on the
first business day prior to the Closing Time.
SECTION 3. Covenants of the Green Tree Parties. The Green Tree Parties
covenant with you as follows:
(a) Immediately following the execution of this Agreement and the
Terms Agreement, the Green Tree Parties will prepare the Prospectus setting
forth the principal amount of the Certificates, the price at which the
Certificates are to be purchased by you, either the initial public offering
price or the method by which the price by which the Certificates are to be
sold will be determined, the selling concession(s) and reallowance(s), if
any, and such other information as you and the Green Tree Parties deem
appropriate in connection with the offering of the Certificates. Funding
will promptly transmit copies of the Prospectus to the Commission for
filing pursuant to Rule 424 under the 1933 Act and will furnish to you as
many copies of the Prospectus as you shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Certificates by you or the
Underwriters, any event shall occur or condition exist as a result of which
it is necessary, in the opinion of your counsel, counsel for the Green Tree
Parties, or otherwise, to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of circumstances existing at the time it
is delivered to a purchaser, not misleading or if it shall be necessary, in
the opinion of any such counsel or otherwise, at any such time to amend or
supplement the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the Regulations thereunder, the
Green Tree Parties will promptly prepare, and Funding will (1) file with
the Commission such amendment or supplement as may be necessary to correct
such untrue statement or omission or to make the Registration Statement
comply with such requirements, and (2) within two business days will
furnish to you as many copies of the Prospectus, as so amended or
supplemented, as you shall reasonably request.
(c) The Green Tree Parties will give you reasonable notice of any
intention to file any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether pursuant to the 1933 Act
or otherwise (other than reports to be filed pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act")), and Funding will
furnish you with copies of any such amendment
7
or supplement or other documents proposed to be filed a reasonable time in
advance of filing, and will not file any such amendment or supplement or
other documents in a form to which you or your counsel shall object.
(d) The Green Tree Parties will notify you immediately, and confirm
the notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any document,
other than reports to be filed pursuant to the 1934 Act, (iii) of the
receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus, (iv) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or suspension of the
qualification of the Certificates or the initiation of any proceedings for
that purpose. The Green Tree Parties will make every reasonable effort to
prevent the issuance of any such stop order and, if any such stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(e) Funding will deliver to you as many signed and as many conformed
copies of the Registration Statement (as ordinarily filed) and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the
Prospectus) as you may reasonably request.
(f) The Green Tree Parties will endeavor, in cooperation with you, to
qualify the Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States
as you may designate, and will maintain or cause to be maintained such
qualifications in effect for as long as may be required for the
distribution of the Certificates. Funding will file or cause the filing of
such statements and reports as may be required by the laws of each
jurisdiction in which the Certificates have been qualified as above
provided.
SECTION 4. Conditions of Underwriter's Obligations. The obligations of
the Underwriters to purchase Certificates pursuant to the Terms Agreement are
subject to the accuracy of the representations and warranties on the part of the
Green Tree Parties herein contained, to the accuracy of the statements of the
Green Tree Parties' officers made pursuant hereto, to the performance by each of
the Green Tree Parties of all of its obligations hereunder and to the following
further conditions:
8
(a) At the Closing Time (i) no stop order suspending the effectiveness of
the Registration Statement shall have been issued or proceedings therefor
initiated or threatened by the Commission, (ii) the Certificates shall have
received the ratings specified in the Terms Agreement, and (iii) there shall not
have come to your attention any facts that would cause you to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of the
Certificates, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at such time, not misleading.
(b) At or prior to the Closing Time you shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxxx &
Xxxxxxx, special counsel and general counsel for the Green Tree Parties in form
and substance satisfactory to you and your counsel, to the effect that: (the
"Underwriter Opinion").
(i) Each of the Green Tree Parties has been duly organized
and is validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) The execution and delivery by each of the Green Tree
Parties of this Agreement, the applicable Terms Agreement and the
Pooling and Servicing Agreement and the signing of the Registration
Statement by Funding are within the corporate power of the related
Green Tree Party and each has been duly authorized by all necessary
corporate action on the part of each of the Green Tree Parties.
(iii) This Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by each of the Green
Tree Parties, and each is a valid and binding obligation of each of
the Green Tree Parties enforceable against the related Green Tree
Party in accordance with its terms, except that (A) such enforcement
may be subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' or secured parties' rights generally, (B) such
enforcement may be limited by general principles of equity, including
(without limitation) concepts of materiality, reasonableness, good
faith and fair dealing, and other similar doctrines affecting the
enforceability of agreements generally (regardless of whether
enforcement is sought in a proceeding in equity or at law), and (C)
the enforceability as to rights to indemnity thereunder is subject to
the effect of
9
federal and state securities laws and public policy relating thereto.
(iv) The Designated Agreements and the Registration
Statement have been duly authorized, executed and delivered by the
Green Tree Parties, and are the valid and binding obligations of the
Green Tree Parties enforceable against the related Green Tree Party in
accordance with its terms, except that (A) such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (B) such enforcement may be limited by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(v) None of the transfer of the Receivables to the Trust,
the issue and sale of the Certificates or the consummation of the
transactions contemplated herein nor the fulfillment of the terms
hereof will, to the best of such counsel's knowledge, conflict with or
constitute a breach of, or default under, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which any
of the Green Tree Parties is a party or by which it may be bound or to
which the property or assets of any of the Green Tree Parties are
subject (which contracts, indentures, mortgages, loan agreements,
notes, leases and other such instruments have been identified by any
of the Green Tree Parties to such counsel), nor will such action
result in any violation of the provisions of the certificate of
incorporation or by-laws of any of the Green Tree Parties or, to the
best of such counsel's knowledge, any order or regulation known to us
to be applicable to any of the Green Tree Parties of any state or
federal court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over any of the Green Tree
Parties.
(vi) The Certificates have been duly authorized and, when
executed and authenticated as specified in the Pooling and Servicing
Agreement and delivered and paid for pursuant to this Agreement and
the Terms Agreement, will be duly issued and entitled to the benefits
of the Pooling and Servicing Agreement.
(vii) The Pooling and Servicing Agreement creates a valid
security interest in favor of the Trustee in the Receivables and other
property included in the Trust on the date hereof, which security
interest of the Trustee in the Receivables and the Trust will be
10
perfected and will constitute a first perfected security interest upon
the filing of Uniform Commercial Code ("UCC") financing statements in
the offices of the Secretary of State of Minnesota; provided, however,
that such counsel may take customary exceptions acceptable to you.
Such counsel need express no opinion (a) as to the continuation of a
security interest in the Receivables if the Trustee does not file
continuation statements as required by the Pooling and Servicing
Agreement or (b) as to the priority of any security interest in the
Receivables against any liens, claims or other interests that arise by
operation of law and do not require any filing or similar action in
order to take priority over perfected security interests.
(viii) To the best of such counsel's knowledge, no filing or
registration with or notice to or consent, approval, authorization or
order of any Minnesota or federal court or governmental authority or
agency is required to be obtained by either of the Green Tree Parties
for the consummation by either of the Green Tree Parties of the
transactions contemplated by the Designated Agreements, except such as
may be required under the 1933 Act or the Regulations, or state
securities or Blue Sky laws.
(ix) The Registration Statement is effective under the 1933
Act and, to the best of such counsel's knowledge and information, no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission.
(x) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended.
(xi) The conditions to the use by Funding of a registration
statement on Form S-1 under the 1933 Act have been satisfied with
respect to the Registration Statement and the Prospectus. To the best
of such counsel's knowledge, there are no contracts or documents of
Funding which are required to be filed as exhibits to the Registration
Statement pursuant to the 1933 Act or the Regulations thereunder which
have not been so filed or incorporated by reference.
(xii) The statements in the Prospectus under the heading
"Certain Federal Income Tax Consequences," to the extent that they
constitute statements of law or legal conclusions as to the likely
outcome of material
11
issues under the federal income tax laws, have been prepared or
reviewed by such counsel and are correct in all material respects.
(xiii) The Trust created by the Pooling and Servicing Agreement
is not, and will not as a result of the offer and sale of the
Certificates as contemplated in the Prospectus and in this Agreement
become, an "investment company" or "under the control of an investment
company" as such terms are defined in the 1940 Act.
(xiv) The statements in the Prospectus under the caption
"Description of the Certificates," insofar as such statements purport
to summarize certain terms of the Certificates and the Pooling and
Servicing Agreement, constitute a fair and accurate summary of such
documents.
(xv) The Registration Statement and the Prospectus (other
than the financial statements and other financial, statistical and
numerical information included therein, as to which no opinion need be
rendered) as of their respective effective or issue dates, complied as
to form in all material respects with the requirements of the 1933 Act
and the Regulations thereunder.
(xvi) The execution, delivery and performance by the Green Tree
Parties of the Designated Agreements do not require the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of any federal, state or other
governmental agency or authority which has not previously been
effected.
(xvii) To such counsel's knowledge, there are no pending or
overtly threatened lawsuits or claims against either of the Green Tree
Parties or relating to the transactions contemplated by the
Underwriting Agreement and the Designated Agreements which, if
adversely determined, would have a material adverse effect on the
transactions contemplated by the Underwriting Agreement and the
Designated Agreements.
Such counsel shall deliver to you such additional opinions addressing the
transfer by the Company to Funding and the transfer by Funding to the Trust of
each of its right, title and interest in and to the Receivables and other
property included in the Trust on the Closing Time as may be required by each
Rating Agency rating the Certificates.
12
Such counsel shall state that it has participated in conferences with
officers and other representatives of the Green Tree Parties, your counsel,
representatives of the independent accountants for the Green Tree Parties and
you at which the contents of the Registration Statement and the Prospectus were
discussed and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (__) and (__) above) and has made no independent check or
verification thereof for the purpose of rendering this opinion, on the basis of
the foregoing (relying as to materiality to a large extent upon the certificates
of officers and other representatives of the Green Tree Parties), nothing has
come to their attention that leads such counsel to believe that the Registration
Statement, when it became effective, contained any 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 or that the
Registration Statement and the Prospectus on the date of this Agreement and the
Terms Agreement contained, and the Prospectus on the date hereof contains, any
untrue statement of a material fact or omitted or omits 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, except that such
counsel need express no view with respect to the financial statements, schedules
and other financial, statistical and numerical data included in or incorporated
by reference into the Registration Statement or the Prospectus.
Said counsel may state that they are admitted to practice only in the State
of Minnesota, that they are not admitted to the Bar in any other State and are
not experts in the law of any other State and to the extent that the foregoing
opinions concern the laws of any other State such counsel may rely upon the
opinion of counsel satisfactory to you and admitted to practice in such
jurisdiction. Any opinions relied upon by such counsel as aforesaid shall be
addressed to you and shall be delivered together with the opinion of such
counsel, which shall state that such counsel believes that their reliance
thereon is justified.
(2) The favorable opinion, dated as of the applicable Closing Time,
of Xxxx X. Xxxxxxxxx, Senior Vice President and General Counsel to the
Company, as Servicer of the Receivables, in form and substance satisfactory
to you and your counsel, to the effect that:
(i) There are no pending or threatened litigation or
administrative proceeding of or before any court, tribunal or
governmental agency, authority or body or any arbitrator which, if
adversely
13
determined, would have a material adverse effect on the financial
condition of the Company.
(ii) The Company is qualified to do business, and is in good
standing, as a foreign corporation in each U.S. jurisdiction in which
the character of the business owned or leased by it makes such
qualification necessary, except where the failure to be so qualified
would not have a material adverse effect on the financial condition of
the Company.
(3) The favorable opinion of counsel to the Trustee, dated as of the
Closing Time, addressed to you and in form and scope satisfactory to your
counsel, to the effect that:
(i) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee and is enforceable
against the Trustee in accordance with its terms, subject to customary
and usual exceptions.
(ii) The Trustee has full power and authority to execute and
deliver the Pooling and Servicing Agreement and to perform its
obligations thereunder.
(iii) To the best of such counsel's knowledge, there are
no actions, proceedings or investigations pending or threatened
against or affecting the Trustee before or by any court, arbitrator,
administrative agency or other governmental authority which, if
adversely decided, would materially and adversely affect the ability
of the Trustee to carry out the transactions contemplated in the
Pooling and Servicing Agreement.
(iv) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body
of the jurisdiction of incorporation of the Trustee is required for
the execution, delivery or performance by the Trustee of the Pooling
and Servicing Agreement.
In rendering such opinion, such counsel may rely, as to
matters of fact, to the extent deemed proper and stated therein, on certificates
of responsible officers of the Trustee or public officials.
(4) The favorable opinion or opinions, dated as of the Closing Time,
of counsel for the Underwriters with respect to the issue and sale of the
Certificates, the Registration Statement, this Agreement, the Prospectus
and other related matters as you may require.
14
(c) At the Closing Time you shall have received a certificate of the
President or a Vice President of each of the Green Tree Parties, dated as of
such Closing Time, to the effect that the representations and warranties of each
of the Green Tree Parties contained in Section 1 are true and correct with the
same force and effect as though such Closing Time were the Representation Date.
(d) You shall have received from ________________, or other independent
certified public accountants acceptable to you, a letter, dated as of this
Agreement and the Terms Agreement, or as soon thereafter as is practicable, and
as of the Closing Time, delivered at such times, in the form heretofore agreed
to.
(e) At the Closing Time you shall have received, addressed to you, any
additional opinions delivered by counsel pursuant to the request of the Rating
Agencies rating the Certificates.
(f) At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they reasonably may require for
the purpose of enabling them to pass upon the issuance and sale of the
Certificates as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Green Tree Parties in connection with the issuance
and sale of the Certificates as herein contemplated shall be satisfactory in
form and substance to you and counsel for the Underwriters.
(g) As of the Closing Time, each of the Designated Agreements will have
been duly authorized, executed and delivered by, and will constitute a legal,
valid and binding obligation of, and will be enforceable against each of the
Green Tree Parties which is a party thereto, in accordance with its terms,
subject to applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally and as to
enforceability, to general principles of equity (regardless whether enforcement
is sought in a proceeding in equity or at law).
(h) At the Closing Time, [Standard & Poor's Rating Services, a Division of
the XxXxxx-Xxxx Companies, Inc. will have delivered a letter to Funding stating
that the Certificates are rated "____" and Xxxxx'x Investor Service, Inc. will
have delivered a letter to Funding stating that the Certificates are rated
"____".]
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement and the Terms Agreement may
be terminated by you by notice to the Green Tree Parties at any time at or prior
to the
15
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
without limitation those related to (i) the filing of the Registration Statement
and all amendments thereto, (ii) the printing and delivery to the Underwriters,
in such quantities as you may reasonably request, of copies of this Agreement,
the Terms Agreement, any agreements among underwriters and selling agreements
and the Underwriters' questionnaires and powers of attorney, (iii) the
preparation, issuance and delivery of the Certificates to the Underwriters, (iv)
the fees and disbursements of the Green Tree Parties' counsel and accountants,
(v) the qualification of the Certificates under securities and Blue Sky laws and
the determination of the eligibility of the Certificates for investment in
accordance with the provisions of Section 3(g), including filing fees, and the
fees and disbursements of your counsel in connection therewith and in connection
with the preparation of any Blue Sky Survey and Legal Investment Survey, (vi)
the printing and delivery to the Underwriters, in such quantities as you may
reasonably request, hereinafter stated, of copies of the Registration Statement
and Prospectus and all amendments and supplements thereto, and of any Blue Sky
Survey and Legal Investment Survey, (vii) the printing and delivery to the
Underwriters, in such quantities as you may reasonably request, of copies of the
Pooling and Servicing Agreement, (viii) the fees charged by investment rating
agencies for rating the Certificates, (ix) the fees and expenses incurred in
connection with the listing of the Certificates on any national securities
exchange, (x) the fees and expenses, if any, incurred with respect to the
National Association of Securities Dealers, Inc., including the fees and
disbursements of counsel for you in connection therewith and (xi) the fees and
expenses of the Trustee and its counsel.
If this Agreement and the Terms Agreement is terminated by you in
accordance with the provisions of Section 4 or Section 9(i) hereof, the Company
shall reimburse you for all reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriter.
SECTION 6. Indemnification. (a) Each of the Green Tree Parties agrees to
indemnify and hold harmless you and each person, if any, who controls you within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a
16
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless such untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information furnished to Funding by
the Underwriters expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, (A) if such settlement is effected with
the written consent of the Green Tree Parties or (B) if such settlement is
effected without the written consent of the Green Tree Parties more than 30 days
after receipt by the Green Tree Parties of a notice from the Underwriters,
substantially reflecting the proposed terms of such settlement, to which the
Green Tree Parties have not responded prior to the date such settlement is
effected; and
(iii) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by you), reasonably incurred in investigating,
preparing to defend or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above, which expenses shall
be reimbursed as they are incurred.
This indemnity agreement will be in addition to any liability which either
of the Green Tree Parties may otherwise have. Insofar as this indemnity may
permit indemnification for liabilities under the 1933 Act of any person who is a
partner of the Underwriters entitled to indemnity hereby or who controls the
Underwriters within the meaning of Section 15 of the 1933 Act and who, at the
date of this Agreement is a director, officer or controlling person of either of
the Green Tree Parties, such indemnity agreement is subject to the undertaking
of either of the Green Tree Parties in the Registration Statement.
(b) Each Underwriter severally agrees to indemnify and hold harmless each
of the Green Tree Parties, each of the Green Tree Parties' directors, each of
Funding's officers who signed the
17
Registration Statement, and each person, if any, who controls either of the
Green Tree Parties within the meaning of Section 15 of the 1933 Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, but only with respect to untrue
statements or omissions or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to either of the Green Tree Parties by you expressly for
use in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto). This indemnity agreement will be in
addition to any liability that such Underwriter may otherwise have.
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it with respect to which indemnity may be
sought hereunder but failure to so notify an indemnifying party shall not
relieve it from any liability that it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of such action. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in addition to local
counsel) for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Green Tree Parties
on the one hand, and the Underwriters, on the other, shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by either of the Green Tree
Parties and one or more of the Underwriters (i) in such proportion as shall be
appropriate to reflect the relative benefit received by the Underwriters, as
represented by the percentage that the Underwriting discount or discounts on the
cover of such Prospectus bears to the initial public offering price or prices as
set forth thereon, and the related Green Tree Party shall be responsible for the
balance; 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
benefit referred to in clause (i) above but also the relative fault of the Green
Tree Parties on the one hand and the Underwriters on the other with respect to
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations; provided, however, that no person guilty of fraudulent
18
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation and, provided further, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price of the
Certificates purchased by such Underwriter pursuant to the Terms Agreement
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. For purposes of this Section, each person, if
any, who controls the Underwriters within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Underwriters and each
director of the Green Tree Parties, each officer of Funding who signed the
Registration Statement, and each person, if any, who controls either of the
Green Tree Parties within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as each of the Green Tree Parties.
SECTION 8. Representations, Warranties and Agreements to survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of Officers of any of the Green Tree Parties submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or any investigation made by or on behalf
of the Underwriters or controlling person thereof, or by or on behalf of any of
the Green Tree Parties and shall survive delivery of any Certificates to the
Underwriters.
SECTION 9. Termination of Agreement. This Agreement may be terminated for
any reason at any time by either the Green Tree Parties or you upon the giving
of thirty days' written notice of such termination to the other party hereto.
You, as Representative of the Underwriters named in the Terms Agreement, may
also terminate the Terms Agreement, immediately upon notice to the Green Tree
Parties, at any time at or prior to the Closing Time (i) if there has been,
since the date of such Terms Agreement or since the respective dates as of which
information is given in the Registration Statement or Prospectus any change, or
any development involving a prospective change in, or affecting, the condition,
financial or otherwise, earnings, affairs or business of the Green Tree Parties
whether or not arising in the ordinary course of business, which in your
judgment would materially impair the market for, or the investment quality of,
the Certificates, or (ii) if there has occurred any outbreak of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in your judgment, impracticable to market
the Certificates or enforce contracts for the sale of the Certificates, or (iii)
if trading generally on either the New York Stock Exchange or the American Stock
Exchange has been
19
suspended, or minimum or maximum prices for securities have been required, by
either of said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal,
Minnesota or New York authorities. In the event of any such termination, (A)
the covenants set forth in Section 3 with respect to any offering of
Certificates shall remain in effect so long as the Underwriters own any such
Certificates purchased pursuant to the Terms Agreement and (B) the covenant set
forth in Section 3(c), the provisions of Section 5, the indemnity agreement set
forth in Section 6, and the contribution provisions set forth in Section 7, and
the provisions of Sections 8 and 13 shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters participating in an offering of Certificates shall fail at the
Closing Time to purchase the Certificates which it or they are obligated to
purchase hereunder and under the Terms Agreement (the "Defaulted Certificates"),
then such of you as are named therein shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Certificates in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, you have not completed such arrangements
within such 24-hour period, then:
(1) if the aggregate principal amount of Defaulted Certificates does
not exceed 10% of the aggregate principal amount of the Certificates to be
purchased pursuant to such Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all such non-
defaulting Underwriters, or
(2) if the aggregate principal amount of Defaulted Certificates
exceeds 10% of the aggregate principal amount of the Certificates to be
purchased pursuant to such Terms Agreement, the Terms Agreement shall
terminate, without any liability on the part of any non-defaulting
Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriters from liability with respect to any default of such Underwriters
under this Agreement and the Terms Agreement.
In the event of a default by any Underwriters as set forth in this Section,
either you, Funding or the Company shall have the right to postpone the Closing
Time for a period of time not exceeding seven days in order that any required
changes in the
20
Registration Statement or Prospectus or in any other documents or arrangements
may be effected.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to you at the address set forth on the first page
hereof, attention of the Syndicate Department. Notices to Funding shall be
directed to Green Tree Floorplan Funding Corp., 0000 Xxxxxxxx Xxxxxx, 000 Xx.
Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxx, 00000-1639, Attention of the Secretary,
with a copy to the Treasurer. Notices to the Company shall be directed to Green
Tree Financial Corporation, 0000 Xxxxxxxx Xxxxxx, 000 Xx. Xxxxx Xxxxxx, Xxxxx
Xxxx, Xxxxxxxxx 00000-0000, attention of the Secretary, with a copy to the
Treasurer.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon you and each of the Green Tree Parties and the Terms Agreement
shall inure to the benefit of and be binding upon each of the Green Tree Parties
and any Underwriter who becomes a party to the Terms Agreement, and their
respective successors. Nothing expressed or mentioned in this Agreement or the
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives any legal or
equitable right, remedy or claim under or with respect to this Agreement or the
Terms Agreement or any provision herein or therein contained. This Agreement
and the Terms Agreement and all conditions and provisions hereof or thereof are
intended to be for the sole and exclusive benefit of the parties and their
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives (to the extent of their rights as
specified herein and therein) and for the benefit of no other person, firm or
corporation. No purchaser of Certificates from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement and the Terms
Agreement shall be governed by the laws of the State of New York. Specified
times of day refer to New York City time.
SECTION 14. Counterparts. This Agreement and the Terms Agreement may be
executed in counterparts, each of which shall constitute an original of any
party whose signature appears on it, and all of which shall together constitute
a single instrument.
21
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you and the
Company in accordance with its terms.
Very truly yours,
GREEN TREE FINANCIAL CORPORATION
By______________________________
Name:
Title:
GREEN TREE FLOORPLAN FUNDING CORP.
By______________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By___________________________
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By___________________________
Name:
Title:
22
$_______________
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1995-1, Class A
and
$_______________
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1995-1, Class B
EXHIBIT A
GREEN TREE FLOORPLAN RECEIVABLES MASTER TRUST
FORM OF TERMS AGREEMENT
-----------------------
Dated: November __, 1995
To: Green Tree Financial Corporation, (the "Company"),
Green Tree Floorplan Funding Corp. ("Floorplan")
Re: Underwriting Agreement dated November ___, 1995
Series Designation:
------------------
Co-managers:
-----------
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx")
Bear, Xxxxxxx & Co. Inc. ("Bear, Xxxxxxx")
Terms of the Certificates:
-------------------------
Original
Principal Certificate Interest
Amount Rate
--------- --------------------
A-1
Certificate Ratings:
Servicer:
--------
Green Tree Financial Corporation (in such capacity, the "Servicer")
Trust:
-----
The Trust shall include (i) all wholesale receivables (the "Receivables")
generated from time to time in a portfolio of revolving financing arrangements
(the "Accounts") satisfying certain criteria described in the prospectus, (ii)
all funds collected from Obligors in respect of the Receivables, (iii) all
right, title and interest of Funding in, to, and under a purchase agreement
between Funding and the Trust, dated as of ________, 1995 (the "Purchase
Agreement"), (iv) the benefit of funds on deposit in the Excess Funding Account,
(v) Recoveries and (vi) proceeds of the foregoing.
Credit Enhancement:
------------------
Subordination of Class B, Class C and Class D Certificates.
Payment Dates:
-------------
The 15th day (or if such day is not a business day, the next succeeding
business day) of each month commencing on _______ 15, 1995.
Purchase Price:
--------------
Subject to the terms of the following paragraph, the purchase price
payable by the Underwriters for the Certificates is _________% of the principal
amount of the Certificates plus accrued interest, if any, at the Certificate
Interest Rate (____%) from _______ __, 1995.
Any allocation of the Certificates among Xxxxxxx Xxxxx and Bear, Xxxxxxx
will be governed by the Agreement Among Underwriters.
Underwriting Commission:
-----------------------
Notwithstanding anything to the contrary in the Underwriting Agreement, no
additional underwriting commission shall be payable by the Company to the
Underwriters in connection with the purchase of the Certificates.
Public Offering price and/or method of determining price at which the
Underwriters will sell the Certificates:
Class A __________%
Class B __________%
A-2
Closing Date and Location:
-------------------------
On or about _______ ___, 1995, offices of Brown & Wood, One World Trade
Center, New York, New York.
A-3
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:__________________________________
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By:__________________________________
Name:
Title:
ACCEPTED:
GREEN TREE FINANCIAL CORPORATION
By:_______________________________
Name:
Title:
GREEN TREE FLOORPLAN FUNDING CORP.
By:_______________________________
Name:
Title:
A-4
