EXHIBIT 4.2
GREEN TREE LEASE FINANCE 1998-1, LLC, as Issuer,
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee,
and
WFFLI LEASE FINANCE 1998-1, LLC, as Successor Issuer
5.201% Lease-Backed Notes, Class A-1
5.55% Lease-Backed Notes, Class A-2
5.60% Lease-Backed Notes, Class A-3
5.74% Lease-Backed Notes, Class A-4
6.66% Lease-Backed Notes, Class B
7.63% Lease-Backed Notes, Class C
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SUPPLEMENTAL INDENTURE
Dated as of January 31, 2001
to
Indenture dated as of December 1, 1998
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SUPPLEMENTAL INDENTURE
This SUPPLEMENTAL INDENTURE, dated as of January 31, 2001, among GREEN
TREE LEASE FINANCE 1998-1, LLC, a Delaware limited liability company (the
"Issuer"), U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America (the
"Trustee"), and WFFLI LEASE FINANCE 1998-1, LLC, a Delaware limited liability
company (the "Successor Issuer"), to the Indenture, dated as of December 1,
1998, between the Issuer and the Trustee relating to the 5.201% Lease-Backed
Notes, Class A-1, 5.55% Lease-Backed Notes, Class A-2, 5.60% Lease-Backed Notes,
Class A-3, 5.74% Lease-Backed Notes, Class A-4, 6.66% Lease-Backed Notes, Class
B, and 7.63% Lease-Backed Notes, Class C of the Issuer (the "Indenture").
RECITALS
WHEREAS, pursuant to an Asset Purchase Agreement dated as of December
8, 2000 by and among Xxxxx Fargo Financial Leasing, Inc. ("Xxxxx Fargo
Financial" or "Buyer"), Conseco, Inc., Conseco Finance Corp., Conseco Finance
Vendor Services Corporation ("Vendor Services"), Green Tree Lease Finance II,
Inc., Issuer and Conseco Finance Lease 2000-1, LLC (the "Purchase Agreement"),
Buyer has agreed to cause the Successor Issuer, a limited liability company of
which Buyer is the sole member, to purchase substantially all of the assets and
certain liabilities of the Issuer.
WHEREAS, pursuant to the Purchase Agreement, Xxxxx Fargo Financial will
purchase substantially all of the assets of Vendor Services and will assume all
of the obligations of Vendor Services as Servicer under the Contribution and
Servicing Agreement.
WHEREAS, the foregoing transactions necessitate the execution of a
supplemental indenture.
WHEREAS, pursuant to Section 9.01 of the Indenture, the Issuer and the
Trustee may enter into a supplemental indenture without the consent of any
Holder of any Note, but with prior notice to the Rating Agencies, (i) to
evidence the succession of another Person to the Issuer in compliance with the
applicable provisions of the Indenture, and the assumption by such successor of
the covenants of the Issuer in the Indenture and in the Notes, (ii) upon
satisfaction of the Rating Agency Condition, to amend the definition of
"Residual Event" or of the terms used in such definition, as required by Xxxxx
Fargo Financial assuming the obligations of Vendor Services as Servicer, and
(iii) to add any provisions to, or change in any manner or eliminate any
provisions of, the Indenture, provided such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Noteholder.
WHEREAS, the Issuer has furnished the Trustee with (i) an Opinion of
Counsel pursuant to Section 3.10(b)(iv) of the Indenture stating that the
transfer of assets from the Issuer to the Successor Issuer will not have any
material adverse tax consequences to the Trust or any Noteholder; (ii) an
Opinion of Counsel and an Officer's Certificate pursuant to Section 3.10(b)(vi)
of the Indenture stating that the transfer of the assets from the Issuer to the
Successor Issuer and this Supplemental Indenture comply with Article III of the
Indenture and that all conditions precedent set forth in the Indenture relating
to such transfer have been complied with; and (iii) an Opinion of Counsel
pursuant to Section 9.01(b) of the Indenture stating that the
amendments of the Indenture set forth in Sections 2.2 and 2.3 hereof do not
adversely affect in any material respect the interests of any Noteholder.
NOW, THEREFORE, each party hereto agrees for the benefit of each other
party and for the equal and ratable benefit of Holders of the Notes as follows:
ARTICLE I
SUCCESSOR ISSUER
Section 1.1. Assumption by Successor Issuer. Pursuant to Section
3.10(b)(i)(B) of the Indenture, Successor Issuer assumes from Issuer the
obligation to make due and punctual payment of the principal of and interest on
all Notes and to perform and observe every agreement and covenant of the
Indenture and each Related Document to be performed or observed by Issuer.
Section 1.2. Subordination to Holders. Pursuant to Section
3.10(b)(i)(C) of the Indenture, the Successor Issuer agrees that all right,
title and interest in the Trust Estate transferred by the Issuer to the
Successor Issuer is subject and subordinate to the rights of Holders of the
Notes.
Section 1.3. Indemnification of Issuer. Pursuant to Section
3.10(b)(i)(D) of the Indenture, the Successor Issuer agrees to indemnify, defend
and hold harmless the Issuer against and from any loss, liability or expense
arising under or related to the Indenture and the Notes; provided, however, that
nothing herein shall in any way limit any rights that the Successor Issuer or
its Affiliate may have to indemnification under the Purchase Agreement.
Section 1.4. Filings. Pursuant to Section 3.10(b)(i)(E) of the
Indenture, the Successor Issuer agrees to make all filings with the Commission
(and any other appropriate Person) required by the Exchange Act in connection
with the Notes.
Section 1.5. Notices, etc. to Issuer. The address to which
notifications to the Successor Issuer shall be sent pursuant to Section 11.04 of
the Indenture shall be 000 Xxxxxx Xxxxxx, Xxx Xxxxxx, XX 00000.
ARTICLE II
AMENDMENT OF OTHER INDENTURE PROVISIONS
Section 2.1. Residual Event. The parties hereto agree that the
substitution of Xxxxx Fargo Financial for Vendor Services as Servicer under the
Indenture shall not constitute a Residual Event and subsection (a) of the
definition of "Residual Event" set forth in Section 1.10 of the Indenture is
hereby amended to read as follows:
"(a) Xxxxx Fargo Financial Leasing, Inc. is no longer the
Servicer."
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Section 2.2. Maintenance of Office or Agency. Section 3.02 of the
Indenture is hereby amended to read as follows:
"Notes may be surrendered for registration of transfer or exchange, and
notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served, at the Corporate Trust Office of the Trustee, and the
Issuer hereby appoints the Trustee as its agent to receive all such surrenders,
notices and demands."
Section 2.3. Distributions. Section 8.03(iv) and Section 8.03(x) of the
Indenture are hereby amended by substituting "Xxxxx Fargo Financial Leasing,
Inc." for "Vendor Services."
ARTICLE III
MISCELLANEOUS
Section 3.1. Defined Terms. Defined terms used herein and not otherwise
defined herein shall have the meanings assigned to them in the Indenture.
Section 3.2. Ratification of Indenture. Except as expressly amended by
this Supplemental Indenture, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect.
Section 3.3. Entire Agreement. This Supplemental Indenture (including
the exhibits, schedules and other documents referred to herein) contains the
entire understanding between the parties hereto with respect to the subject
matter hereof and supersedes any prior understandings, agreements or
representations, written or oral, relating to the subject matter hereof.
Section 3.4. Counterparts. This Supplemental Indenture may be executed
in separate counterparts, each of which will be an original and all of which
taken together shall constitute one and the same agreement, and any party hereto
may execute this Supplemental Indenture by signing any such counterpart.
Section 3.5. Severability. Whenever possible, each provision of this
Supplemental Indenture shall be interpreted in such a manner as to be effective
and valid under applicable law but if any provision of this Supplemental
Indenture is held to be invalid, illegal or unenforceable under any applicable
law or rule, the validity, legality and enforceability of the other provision of
this Supplemental Indenture will not be affected or impaired thereby.
Section 3.6. Modification, Amendment, Waiver or Termination. No
provision of this Supplemental Indenture may be modified, amended, waived or
terminated except by an instrument in writing signed by the parties to this
Supplemental Indenture. No course of dealing between the parties will modify,
amend, waive or terminate any provision of this Supplemental Indenture or any
rights or obligations of any party under or by reason of this Supplemental
Indenture.
Section 3.7. Headings. The headings and any table of contents contained
in this Supplemental Indenture are for reference purposes only and shall not in
any way affect the meaning or interpretation of this Supplemental Indenture.
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Section 3.8. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA, WITHOUT
REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the first day and year first written
above.
GREEN TREE LEASE FINANCE 1998-1, LLC
By /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Senior Vice President and
Secretary
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxxxx-Xxxx
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Name: Xxxxxx Xxxxxxx-Xxxx
Title: Vice President
WFFLI LEASE FINANCE 1998-1, LLC
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
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