EXHIBIT 1.1
$605,500,000
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1999-1, Class A
and
$31,500,000
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1999-1, Class B
GREEN TREE FLOORPLAN RECEIVABLES MASTER TRUST
UNDERWRITING AGREEMENT
----------------------
October 1, 1999
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center, North Tower
New York, NY 10281
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Dear Ladies and Gentlemen:
Green Tree Floorplan Funding Corp. ("GTFFC") is a Delaware corporation with
its principal place of business in Saint Xxxx, Minnesota. GTFFC has filed a
Registration Statement on Form S-1 (hereinafter referred to as the "Registration
Statement") relating to $605,500,000 (Floating Rate) Floorplan Receivable Trust
Certificates, Series 1999-1, Class A and $31,500,000 (Floating Rate) Floorplan
Receivable Trust Certificates, Series 1999-1, Class B (the "Offered
Certificates") evidencing interests in Green Tree Floorplan Receivables Master
Trust (the "Trust"). The Offered Certificates will be issued pursuant to a
pooling and servicing agreement (the "Pooling and Servicing Agreement") dated as
of December 1, 1995 among GTFFC, as transferor, Green Tree Financial
Corporation, as servicer ("Green Tree" or the "Servicer"), and
Norwest Bank Minnesota, National Association, as trustee (the "Trustee") and
pursuant to a 1999-1 Series Supplement to the Pooling and Servicing Agreement
(the "Series Supplement"), dated as of September 1, 1999 among GTFFC, as
transferor, Green Tree, as Servicer, and the Trustee, as trustee. The Pooling
and Servicing Agreement, as supplemented by the Series Supplement, is
hereinafter referred to as the "Pooling and Servicing Agreement." $40,250,000
principal amount of Class C Certificates (the "Class C Certificates"),
$28,000,000 principal amount of Class D Certificates, which principal amount
shall be reduced to $22,750,000 upon payment of Series 1996-2 in full (the
"Class D Certificates") and the Exchangeable Transferor's Certificate (together
with the Offered Certificates, the Class C Certificates and the Class D
Certificates, the "Certificates") will also be issued pursuant to the Pooling
and Servicing Agreement. 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 Green Tree and certain
dealers in consumer and commercial products (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 GTFFC in,
to, and under a receivables purchase agreement (the "Purchase Agreement"), dated
as of December 1, 1995 between GTFFC and Green Tree, (iv) all funds on deposit
in the Trust Accounts, (v) Recoveries, (vi) an assignment of a security interest
in the Collateral Security, (vii) GTFFC's rights under all Floorplan Agreements,
and (viii) proceeds of the foregoing. The Receivables will be purchased from
Green Tree by GTFFC pursuant to the Purchase Agreement and thereafter
transferred to the Trust. The forms of the Pooling and Servicing Agreement and
the Series Supplement have been filed as exhibits to the Registration Statement.
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 Certificates are more fully described in a Registration Statement that
GTFFC has furnished to you. The terms "you" or "Underwriters" as used herein,
unless the context otherwise requires, shall mean you, acting severally and not
jointly under this Agreement. The term "Representative" refers to Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx & Xxxxx Incorporated acting as Representative of the
Underwriters.
The offering of the Offered Certificates will be made through you. GTFFC
and Green Tree will also enter into an agreement (the "Terms Agreement")
providing for the sale of such Offered Certificates to, and the purchase thereof
by, you, severally and not jointly. The Terms Agreement shall specify, among
other things, the price or prices at which the Offered 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 the Offered
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
GTFFC. The offering of the Offered Certificates will be governed by this
Agreement, as supplemented by the Terms Agreement.
GTFFC has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-82443 and
333-82443-01) and a related preliminary prospectus for the registration of the
Offered 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
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(the "Regulations"). The registration statement (including the prospectus
constituting a part thereof and the information, if any, deemed to be part
thereof pursuant to Rule 430A(b) of the Regulations) in the form in which it
became effective under the Act on October 1, 1999 (the "Effective Date"),
including the exhibits thereto, is referred to herein as the "Registration
Statement," and the prospectus dated October 1, 1999 in the form in which it was
most recently filed with the Commission (including the information, if any,
deemed to be part thereof pursuant to Rule 430A(b) of the Regulations) is
referred to herein as the "Prospectus", except that if any revised prospectus
shall be provided to you by GTFFC for use in connection with the offering of the
Offered Certificates which differs from the Prospectus on file at the Commission
at the time the Registration Statement becomes effective (whether or not such
revised prospectus is required to be filed by GTFFC pursuant to Rule 424(b) of
the Regulations), the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to you for such use.
GTFFC understands that you propose to make a public offering of the Offered
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 GTFFC and Green Tree
represents and warrants to you as of the date hereof, as of the date of the
Terms Agreement (the "Representation Date") and as of the Closing Time, (as
defined below) as follows:
(a) The Registration Statement and the Prospectus do, on the Effective
Date and on the date hereof, 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, on the Effective Date and on the
date hereof, did not and does not, and as of the Representation Date and
the Closing Time 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 on the Effective Date and on the date hereof, did
not and does not, and as amended or supplemented as of the Representation
Date and the Closing Time 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, in the light of the circumstances under which they
were made, 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 GTFFC in writing by
any Underwriter through the Representative expressly for use in the
Registration Statement or Prospectus. There are no contracts or documents
of GTFFC 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 therein.
(b) Each of GTFFC and Green Tree has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
state of Delaware, with corporate power and authority to own, lease and
operate 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 each of
GTFFC and Green Tree may be a party to; and each of GTFFC and Green Tree is
duly qualified
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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) Neither GTFFC nor Green Tree is in violation of its certificate of
incorporation or by-laws or is 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 its
financial condition, earnings, affairs or business or which may materially
and adversely affect the properties or assets thereof.
(d) The execution and delivery of this Agreement, the Terms Agreement
and the Designated Agreements by GTFFC and Green Tree are within the
corporate power of GTFFC and Green Tree, respectively, and have been duly
authorized by all necessary corporate action on the part of GTFFC and Green
Tree, respectively; and neither the issuance and sale of the Offered
Certificates to the Underwriters, nor the execution and delivery of this
Agreement, the Terms Agreement or the Designated Agreements by GTFFC or
Green Tree, nor the consummation by GTFFC or Green Tree of any of the
transactions therein contemplated, nor compliance by GTFFC or Green Tree
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 GTFFC or Green Tree or their respective
properties or the certificate of incorporation or by-laws of GTFFC or Green
Tree, or any of the provisions of any indenture, mortgage, contract or
other instrument to which GTFFC or Green Tree is a party or by which each
is bound or result in the creation or imposition of any lien, charge or
encumbrance upon any of their respective properties 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 delivered by each of GTFFC and Green Tree, and
each constitutes, or will constitute when so executed and delivered, a
legal, valid and binding instrument enforceable against GTFFC and Green
Tree 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 of GTFFC and Green Tree, and will constitute, when so
executed and delivered, a legal, valid and binding agreements, enforceable
against GTFFC and Green Tree in accordance with their respective terms,
subject (i) to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights
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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, 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 GTFFC or Green Tree 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, other than any filing or
registration with, notice to or consent, approval, authorization or order
of any court or governmental authority or agency which has been obtained or
will be obtained by the Closing Date.
(i) There are no proceedings or investigations pending or, to the best
knowledge of GTFFC or Green Tree, threatened against GTFFC or Green Tree
before any governmental authority (i) asserting the invalidity of any
Designated Agreement or of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated thereby, (iii) seeking
any determination or ruling that would materially and adversely affect the
performance by GTFFC or Green Tree of its obligations thereunder or the
ability of Green Tree to originate Receivables, (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability thereof or (v) seeking to affect adversely the
tax attributes of the Trust.
(j) Each of GTFFC and Green Tree 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 or as described in the Prospectus and has not
received any 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,
ruling or finding, would materially and adversely affect the conduct of the
business, operations, financial condition or income of GTFFC or Green Tree,
respectively.
(k) Neither GTFFC, Green Tree nor the Trust will be subject to
registration as an "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act").
(l) The Certificates and the Designated Agreements conform in all
material respects to the descriptions thereof contained in the Prospectus.
(m) At the Closing Time, the Offered Certificates shall have received
the certificate ratings specified in the Terms Agreement.
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(n) At the Closing Time, each of the representations and warranties of
GTFFC and Green Tree set forth in any of the Designated Agreements will be
true and correct.
SECTION 2. Purchase and Sale. The commitment of the Underwriters to
purchase the Offered 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, the Offered
Certificates to be purchased by you shall be made at the office of Xxxxxx &
Xxxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, or at such
other place as shall be agreed upon by you and GTFFC, at such time or date as
shall be agreed upon by you and GTFFC and Green Tree in the Terms Agreement
(such time and date being referred to as the "Closing Time"). Payment of the
purchase price for the Offered Certificates shall be made to or at the direction
of GTFFC, in immediately available Federal funds wired to such bank as may be
designated by GTFFC. The Offered Certificates shall be in such denominations
specified by the Representative and registered in the name of Cede & Co., unless
the Representative shall otherwise specify in writing at least two business days
prior to the Closing Time. The Offered Certificates, which may be in temporary
form, will be made 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 GTFFC and Green Tree. GTFFC and Green Tree covenant
with you as follows:
(a) Immediately following the execution of this Agreement and the
Terms Agreement, GTFFC will prepare the Prospectus setting forth the
principal amount of the Offered Certificates, the price at which the
Offered Certificates are to be purchased by you, either the initial public
offering price or the method by which the price at which the Offered
Certificates are to be sold will be determined, the selling concession(s)
and reallowance(s), if any, and such other information as you and GTFFC
deem appropriate in connection with the offering of the Offered
Certificates. GTFFC will, to the extent required by the Regulations,
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 Offered Certificates by you,
any event shall occur or condition exist as a result of which it is
necessary, in the opinion of your counsel, counsel for GTFFC, 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, GTFFC will promptly prepare and
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
6
Registration Statement comply with such requirements and (2) within two
business days will furnish you with as many copies of the Prospectus, as so
amended or supplemented, as you shall reasonably request.
(c) GTFFC 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 GTFFC will furnish you with copies of any
such amendment 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) GTFFC 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. GTFFC 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) GTFFC will deliver to you as many signed and as many conformed
copies of the Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein) as you may reasonably request.
(f) GTFFC 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. GTFFC 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.
(g) The Servicer will file the Settlement Statement on Form 8-K for a
period of twelve months following the applicable Closing Time.
SECTION 4. Conditions of Underwriter's Obligations. The obligations of the
Underwriters to purchase the Offered Certificates pursuant to the Terms
Agreement are subject to the accuracy of the representations and warranties on
the part of GTFFC and Green Tree herein contained, to the accuracy of the
statements of officers of GTFFC and Green Tree made
7
pursuant hereto, to the performance by each of GTFFC and Green Tree of all of
its obligations hereunder and to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 4:00 p.m., New York time, on the day following the date of this
Agreement or such later date as shall have been consented to by the
Representative; and 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
Offered 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 Offered 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. If GTFFC has
elected to rely upon Rule 430A of the Regulations, the price of the Offered
Certificates and any price-related information previously omitted from the
effective Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the
Regulations within the prescribed time period, and prior to Closing Time
GTFFC shall have provided evidence satisfactory to the Representative of
such timely filing, or a post-effective amendment providing such
information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A of the Regulations.
(b) At or prior to the Closing Time you shall have received:
(1) The favorable opinion (the "Underwriter Opinion"), dated as of the
Closing Time, of Xxxxxx & Xxxxxxx LLP, special counsel for GTFFC and Green
Tree, in form and substance satisfactory to you and your counsel, to the
effect that:
(i) Each of GTFFC and Green Tree 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 GTFFC and Green Tree
of this Agreement, the Terms Agreement, the Purchase Agreement and the
Pooling and Servicing Agreement and the signing of the Registration
Statement by GTFFC are within the corporate power of GTFFC and Green
Tree, respectively, and each has been duly authorized by all necessary
corporate action on the part of each of GTFFC and Green Tree.
(iii) This Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by each of GTFFC and Green
Tree, and each is a valid and binding obligation of each of GTFFC and
Green Tree enforceable against GTFFC and Green Tree 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 (regardless of whether enforcement is
sought in a proceeding in equity or at law), and (C) the
enforceability as to
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rights to indemnity thereunder is subject to the effect of federal and
state securities laws and public policy relating thereto.
(iv) The Designated Agreements have been duly authorized,
executed and delivered by GTFFC and Green Tree, and are the valid and
binding obligations of GTFFC and Green Tree enforceable against GTFFC
and Green Tree in accordance with their respective 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 or of the Designated Agreements 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 GTFFC or Green Tree is a
party or by which either of them may be bound or to which the property
or assets of either of them are subject (which contracts, indentures,
mortgages, loan agreements, notes, leases and other such instruments
have been identified by GTFFC and Green Tree to such counsel), nor
will such action result in any violation of the provisions of the
certificate of incorporation or by-laws of GTFFC or Green Tree or, to
the best of such counsel's knowledge, any order or regulation known to
such counsel to be applicable to GTFFC or Green Tree of any state or
federal court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over GTFFC or Green Tree.
(vi) The Certificates have been duly authorized and, when
executed and authenticated as specified in the Pooling and Servicing
Agreement and delivered and, in the case of the Offered Certificates,
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 Receivables are either "chattel paper", "accounts" or
"general intangibles" under the UCC. The Purchase Agreement creates,
in favor of GTFFC, a valid security interest (as such term is defined
in Section 1-201 of the UCC) in the Receivables now existing and
hereafter created that are either chattel paper or accounts, which
security interest, if characterized as a transfer for security, will
secure the "Secured Obligations" (as defined in the Pooling and
Servicing Agreement) and, in the case of Receivables that are general
intangibles, is effective to transfer Green Tree's ownership interest
in such Receivables to GTFFC. The Pooling and Servicing Agreement
creates, in favor of the Trustee for the benefit of the
Certificateholders, a valid security interest (as such term is defined
in Section 1-201 of the UCC) in the Receivables now existing and
hereafter created, which security interest, if characterized as a
transfer for security, will secure the "Secured Obligations" (as
defined in the Pooling and
9
Servicing Agreement), and, in the case of Receivables that are general
intangibles, is effective to transfer GTFFC's ownership interest in
such Receivables to the Trustee. The perfection and the effect of
perfection or nonperfection of the ownership or security interests in
the Receivables created pursuant to the Purchase Agreement or the
Pooling and Servicing Agreement will be governed by the laws of the
State of Minnesota. The UCC-1 financing statements are in appropriate
form for filing with the Secretary of State of Minnesota. Upon the
filing of the UCC-1 financing statements in the office of the
Secretary of State of Minnesota, GTFFC will have a perfected ownership
interest in the Receivables, which ownership interest shall have
priority over any other security interest in the Receivables, and the
Trustee will have a perfected ownership or security interest in the
Receivables, which ownership or security interest shall have priority
over any other security interest in the Receivables. In rendering such
opinion, such counsel may take customary exceptions acceptable to you.
(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 GTFFC or Green Tree for the
consummation by GTFFC or Green Tree of the transactions contemplated
by this Agreement, the Terms Agreement or 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) To the best of such counsel's knowledge, there are no
contracts or documents 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 "Federal
Income Tax Consequences," to the extent that they constitute
statements of law or legal conclusions as to the likely outcome of
material 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 Offered
Certificates as contemplated in the Prospectus and in this Agreement
become, an "investment company" as such term is defined in the 1940
Act.
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(xiv) The statements in the Prospectus under the caption
"Description of the Offered 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 statements in the Prospectus under the headings "Risk
Factors--The insolvency of Green Tree or the Transferor could delay or
reduce distributions to you or could accelerate distributions to you,"
"Certain Legal Aspects of the Receivables--Certain Matters Relating to
Bankruptcy" and "Employee Benefit Plan Considerations," to the extent
that they constitute statements of law or legal conclusions with
respect thereto, have been reviewed by such counsel and are correct in
all material respects.
(xvi) The Certificates, the Designated Agreements and the
Underwriting Agreement conform in all material respects to the
descriptions thereof contained in the Prospectus.
(xvii) 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.
(xviii) The execution, delivery and performance by GTFFC or Green
Tree 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.
(xix) To such counsel's knowledge, there are no pending or
overtly threatened lawsuits or claims against GTFFC or Green Tree or
relating to the transactions contemplated by this Agreement or the
Designated Agreements which, if adversely determined, would have a
materially adverse effect on the transactions contemplated by this
Agreement and the Designated Agreements.
Such counsel shall deliver to you such additional opinions addressing the
transfer by Green Tree to GTFFC and the transfer by GTFFC 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 reasonably required by the
Rating Agencies rating the Offered Certificates.
Such counsel shall state that it has participated in conferences with
officers and other representatives of GTFFC and Green Tree, your counsel,
representatives of the independent accountants for GTFFC and Green Tree 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 (xii), (xiv), (xv) and (xvi) above) and has made no
independent check or verification
11
thereof for the purpose of rendering this opinion, on the basis of the
foregoing, 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 at Closing Time
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.
Such 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
Xxxxx X. Xxxxx, Senior Vice President, General Counsel and Secretary to
Green Tree, 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 determined, would have a material adverse effect on the
financial condition of GTFFC or Green Tree.
(ii) Each of GTFFC and Green Tree 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 Green Tree.
(iii) Each of GTFFC and Green Tree possesses all material
licenses, certificates, authorities or permits issued by the
appropriate state or federal regulatory agencies or bodies necessary
to conduct the business now conducted by it and as described in the
Prospectus, except to the extent that the failure to have such
licenses, certificates, authorities or permits does not have a
material adverse effect on the Receivables or the Certificates or the
financial condition of GTFFC or Green Tree, and neither GTFFC nor
Green Tree has received any 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, ruling or finding, would materially and
adversely affect the conduct of its business, operations or financial
condition.
12
(iv) At the time of the transfer of the Receivables to GTFFC,
Green Tree owned the Receivables free and clear of any lien, security
interest, charge or other interests of others, except such liens as
are permitted under the Pooling and Servicing Agreement.
(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, 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.
(c) You shall have received from Xxxxxx & Xxxxxxx LLP, special counsel for
GTFFC, an opinion, dated as of the Closing Time and satisfactory in form and
substance to the Representative and to counsel to the Underwriters, to the
effect that the Offered Certificates will be characterized for Minnesota income
and franchise tax purposes as indebtedness secured by the Receivables and
Certificateholders not otherwise subject to taxation in Minnesota will not be
subject to tax in respect of the Offered Certificates.
(d) At the Closing Time you shall have received a certificate of the
President or a Vice President of each of GTFFC and Green Tree, dated as of such
Closing Time, to the effect that (i) the representations and warranties of each
of GTFFC and Green Tree contained in Section 1 are true and correct with the
same force and effect as though such Closing Time were the Representation Date;
(ii) GTFFC or Green Tree, as applicable, has complied in all material
13
respects with all the agreements and satisfied all the conditions on its part to
be performed or satisfied under this Agreement at or prior to the Closing Time;
(iii) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been initiated or, to
GTFFC's or Green Tree's knowledge, threatened by the Commission as of the
Closing Time; and (iv) nothing has come to such person's attention that would
lead such person to believe that the Prospectus contains an untrue statement of
a material fact 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.
(e) You shall have received from KPMG Peat Marwick LLP, or other
independent certified public accountants acceptable to you, a letter, dated as
of the Closing Time, delivered at such time, in the form heretofore agreed to.
(f) 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 Offered Certificates.
(g) The Representative shall have received facsimile confirmation from a
filing service that (i) a copy of the UCC-1 financing statement on Form UCC-1
has been filed with the Secretary of State of the State of Minnesota with
respect to the transfer of the Receivables by Green Tree to GTFFC pursuant to
the Purchase Agreement, identifying the Receivables as collateral and naming
Green Tree as debtor and GTFFC as the secured party and (ii) a copy of the UCC-1
financing statement on Form UCC-1 has been filed with the Secretary of State of
the State of Minnesota with respect to the transfer of the Receivables by GTFFC
to the Trustee pursuant to the Pooling and Servicing Agreement, identifying the
Receivables as collateral and naming GTFFC as debtor and the Trustee as the
secured party.
(h) 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 Offered
Certificates as herein contemplated and the 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 GTFFC and Green Tree 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.
(i) 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 GTFFC
and Green Tree, 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 of whether enforcement is sought in a proceeding in equity or
at law).
(j) At the Closing Time, Standard & Poor's Ratings Services, A Division of
The XxXxxx-Xxxx Companies, Inc. shall have delivered a letter to GTFFC stating
that the Class A Certificates are rated "AAA" and the Class B Certificates are
rated "A" and Xxxxx'x Investor Service, Inc. shall have delivered a letter to
GTFFC stating that the Class A Certificates are rated
14
"Aaa" and the Class B Certificates are rated "A3" and Fitch IBCA, Inc. shall
have delivered a letter to GTFFC stating that the Class A Certificates are rated
"AAA" and the Class B Certificates are rated "AA-."
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 GTFFC at any time at or prior to the 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. Green Tree will pay all expenses incident
to the performance of the obligations of GTFFC or Green Tree 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 Offered
Certificates to the Underwriters, (iv) the fees and disbursements of GTFFC's and
Green Tree's counsel and accountants, (v) the qualification of the Offered
Certificates under securities and Blue Sky laws and the determination of the
eligibility of the Offered 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 the Rating Agencies
for rating the Offered Certificates, (ix) the fees and expenses incurred in
connection with the listing of the Offered Certificates on any 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, Green Tree
shall reimburse you for all reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 6. Indemnification. (a) GTFFC and Green Tree, jointly and
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter 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 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
15
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 GTFFC by any Underwriter through the Representative 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 GTFFC, or (B) if such
settlement is effected without the written consent of GTFFC more than 30
days after receipt by GTFFC of a notice from the Underwriters,
substantially reflecting the proposed terms of such settlement, to which
GTFFC has not responded prior to the date such settlement is effected; and
(iii) against any and all expenses whatsoever (including the fees and
disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing to defend or defending against any litigation,
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
GTFFC or Green Tree may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless each
of GTFFC and Green Tree, each director of GTFFC and Green Tree, each of GTFFC's
officers who signed the Registration Statement, and each person, if any, who
controls either GTFFC or Green Tree 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 GTFFC by any Underwriter through the
Representative 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, although 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. In addition, no indemnifying party shall, without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld or unreasonably delayed), settle or compromise or consent
to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of
16
which indemnification or contribution could be sought, unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability in respect of which indemnification could be sought
hereunder which arises out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party. An
indemnifying party may participate at its own expense in the defense of such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. 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, GTFFC and Green Tree
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 GTFFC and Green Tree 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 the
Prospectus bears to the initial public offering price or prices as set forth
thereon, and GTFFC and Green Tree, as applicable, 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 GTFFC and
Green Tree, as applicable, 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
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
Offered 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 any Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Underwriters and each
director of GTFFC and Green Tree, each officer of GTFFC who signed the
Registration Statement, and each person, if any, who controls GTFFC or Green
Tree within the meaning of Section 15 of the 1933 Act shall have the same rights
to contribution as GTFFC and Green Tree.
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 GTFFC or Green Tree 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 GTFFC or Green
Tree and shall survive delivery of any Offered Certificates to the Underwriters.
17
SECTION 9. Termination of Agreement. The Representative may terminate this
Agreement and the Terms Agreement, immediately upon notice to GTFFC, at any time
at or prior to the Closing Time (i) if there has been, since the date of the
Terms Agreement or since the respective dates as of which information is given
in the Registration Statement or the Prospectus, any change, or any development
involving a prospective change in, or affecting, the condition, financial or
otherwise, earnings, affairs or business of GTFFC or Green Tree 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 Offered
Certificates, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or 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 the judgment of the
Representative, impracticable to market the Offered Certificates or enforce
contracts for the sale of the Offered Certificates, or (iii) if trading in any
securities of Green Tree has been suspended or limited by the Commission or the
New York Stock Exchange, or if trading generally on either the New York Stock
Exchange or the American Stock Exchange has been 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 the offering of the Offered Certificates shall
remain in effect so long as the Underwriters own any Offered 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, 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 the offering of the Offered Certificates shall
fail at the Closing Time to purchase the Offered Certificates which it or they
are obligated to purchase hereunder and under the Terms Agreement (the
"Defaulted Certificates"), then the Representative 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 Offered
Certificates to be purchased pursuant to such Terms Agreement, the
non-defaulting Underwriters 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.
18
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 the Representative or GTFFC 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 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
Underwriters shall be directed to you at the respective addresses set forth on
the first page hereof, attention of the Syndicate Department. Notices to GTFFC
shall be directed to Green Tree Floorplan Funding Corp., 500 Landmark Towers,
000 Xx. Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxx, 00000-0000, Attention of the
Secretary, with a copy to the Treasurer. Notices to Green Tree 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 and the Terms Agreement shall inure to
the benefit of and be binding upon you, GTFFC, Green Tree and each Underwriter
who becomes a party to this Agreement and 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 Offered 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.
SECTION 15. Representations and Warranties of the Underwriters. Each of the
Underwriters represents and warrants as of the date hereof, as of the
Representation Date and as of the Closing Time as follows:
19
(a) Such Underwriter has not offered or sold and, prior to the expiry
of the period of six months from the Closing Date, such Underwriter will
not offer or sell any Class A or Class B Certificates to persons in the
United Kingdom, except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public in
the United Kingdom within the meaning of the Public Offers of Securities
Regulation 1998;
(b) Such Underwriter has complied and will comply with all applicable
provisions of the Financial Services Act 1986 with respect to anything done
by it in relation to the Class A or Class B Certificates in, from or
otherwise involving the United Kingdom; and
(c) Such Underwriter has only issued or passed on and will only issue
or pass on in the United Kingdom any document received by it in connection
with the issue of the Class A or Class B Certificates to a person who is of
a kind described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1995, or is a person to whom
such document may otherwise lawfully be issued or passed on.
20
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, GTFFC
and Green Tree in accordance with its terms.
Very truly yours,
GREEN TREE FLOORPLAN FUNDING CORP.
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
and Treasurer
GREEN TREE FINANCIAL CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
and Treasurer
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By /s/ Xxxxxx X. XxXxxx
-----------------------------------
Name: Xxxxxx X. XxXxxx
Title: Director
X.X. XXXXXX SECURITIES INC.
By /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
DEUTSCHE BANK SECURITIES INC.
By /s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Director
By /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
21
$605,500,000
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1999-1, Class A
and
$31,500,000
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1999-1, Class B
GREEN TREE FLOORPLAN RECEIVABLES MASTER TRUST
TERMS AGREEMENT
---------------
Dated: October 1, 1999
To: Green Tree Financial Corporation, ("GreenTree"),
Green Tree Floorplan Funding Corp. ("GTFFC")
Re: Underwriting Agreement dated October 1, 1999
Terms of the Certificates:
--------------------------
Original
Principal Certificate
Amount Rate
--------- -----------
Class A $605,500,000 the lesser of (i) one-month LIBOR
determined as of the second LIBOR
business day prior to the relevant
Interest Accrual Period plus 0.35%
per annum or (ii) the Net
Receivables Rate
Class B $31,500,000 the lesser of (i) one-month LIBOR
determined as of the second LIBOR
business day prior to the relevant
Interest Accrual Period plus 0.65%
per annum or (ii) the Net
Receivables Rate
Servicer:
---------
Green Tree Financial Corporation (in such capacity, the "Servicer")
Purchase Price:
---------------
The purchase price payable by the Underwriters for the Class A Certificates
is 99.80% of the principal amount of the Class A Certificates plus accrued
interest, if any, at the Class A Certificate Rate from October 4, 1999. Xxxxxxx
Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") shall purchase
$454,125,000 principal amount of the Class A Certificates, X.X. Xxxxxx
Securities Inc. ("X.X. Xxxxxx") shall purchase $75,687,500 principal amount of
the Class A Certificates and Deutsche Bank Securities Inc. ("Deutsche Bank")
shall purchase $75,687,500 principal amount of the Class A Certificates.
The purchase price payable by the Underwriters for the Class B Certificates
is 99.70% of the principal amount of the Class B Certificates plus accrued
interest, if any, at the Class B Certificate Rate from October 4, 1999. Xxxxxxx
Xxxxx shall purchase $31,500,000 principal amount of the Class B Certificates.
Underwriting Commission:
------------------------
Notwithstanding anything to the contrary in the Underwriting Agreement, no
additional underwriting commission shall be payable by GTFFC to the Underwriters
in connection with the purchase of the Offered Certificates.
Public Offering price (exclusive of any accrued interest) at which the
Underwriters will initially sell the Offered Certificates:
Class A 100.00%
Class B 100.00%
Closing Date and Location:
--------------------------
On or about October 4, 1999, offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000.
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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, GTFFC
and Green Tree in accordance with its terms.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By /s/ Xxxxxx X. XxXxxx
-----------------------------------
Name: Xxxxxx X. XxXxxx
Title: Director
X.X. XXXXXX SECURITIES INC.
By /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
DEUTSCHE BANK SECURITIES INC.
By /s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Director
By /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
ACCEPTED:
GREEN TREE FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
and Treasurer
GREEN TREE FLOORPLAN FUNDING CORP.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
and Treasurer
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