draft 12/8/95
$_______________
(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
----------------------
December __, 1995
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
BEAR, XXXXXXX & CO. INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
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 $___________ (Floating Rate) Floorplan Receivable Trust
Certificates, Series 1995-1, Class A and $___________ (Floating Rate) Floorplan
Receivable Trust Certificates, Series 1995-1, 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
1995-1 Series
Supplement to the Pooling and Servicing Agreement (the "Series Supplement"),
dated as of December 1, 1995 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." $________ principal amount of Class C
Certificates (the "Class C Certificates"), $________ principal amount of Class D
Certificates (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, the Series Supplement and the
Purchase Agreement (together, the "Designated Agreements"). GTFFC and Green
Tree will be referred to collectively herein as the "Green Tree Parties."
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
Lynch, Pierce, 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
2
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. 33-62433) 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 (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 December ___, 1995 (the "Effective Date"),
including the exhibits thereto, is referred to herein as the "Registration
Statement", and the prospectus dated December ___, 1995 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 1933 Act 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 1933 Act 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, 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
3
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.
(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 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) Neither GTFFC nor Green Tree is 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 its
financial condition, earnings, affairs or business or which might
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
4
necessary corporate action on the part of GTFFC and Green Tree; 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 it 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 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 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 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
5
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.
(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.
6
(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 Xxxxx & Xxxx,
Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 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 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 by 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
7
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 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) 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
8
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.
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 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 1933 Act
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.
9
(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 P.L.L.P., 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, 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 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
10
(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
11
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 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.
12
(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 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.
(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 statements in the Prospectus under the headings
"Risk Factors--Transfer of the Receivables; Insolvency Risk
Considerations", "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 Pooling and Servicing
Agreement 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
13
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 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 GTFFC and
Green Tree), 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
14
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 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, to his knowledge, 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.
(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.
15
With respect to each Receivable, such Receivable is secured by a
validly perfected first priority security interest in favor of Green
Tree as a secured party. Each Receivable and the related Collateral
Security has been duly and validly assigned to GTFFC by Green Tree.
(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.
(c) You shall have received from Xxxxxx & Whitney P.L.L.P., 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
16
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 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 times, 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.
17
(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 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 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 "Aaa" and the Class B
Certificates are rated "A3".
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),
18
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 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
19
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 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
GTFFC or Green Tree may otherwise have. Insofar as this indemnity may permit
indemnification for liabilities under the 1933 Act of any person who is a
partner of any Underwriter entitled to indemnity hereby or who controls any
Underwriter 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
GTFFC or Green Tree, such indemnity agreement is subject to the undertaking of
GTFFC in the Registration Statement.
(b) Each Underwriter severally agrees to indemnify and hold harmless each
of GTFFC and Green Tree, each director of GTFFC or 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 but failure to
20
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, 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 0000 Xxx) 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 or 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.
21
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.
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 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
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, 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 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
22
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.
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, 1100 Landmark Towers, 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 any 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
23
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.
24
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______________________________
Name:
Title:
GREEN TREE FINANCIAL CORPORATION
By______________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By___________________________
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By___________________________
Name:
Title:
25
$_______________
(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: December___, 1995
To: Green Tree Financial Corporation, ("GreenTree"),
Green Tree Floorplan Funding Corp. ("GTFFC")
Re: Underwriting Agreement dated December ___, 1995
Terms of the Certificates:
-------------------------
Original
Principal Certificate Interest
Amount Rate
--------- --------------------
Class A
Class B
A-1
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 ____% of the principal amount of the Class A Certificates plus
accrued interest, if any, at the Certificate Interest Rate (____%) from _______
__, 1995.
The purchase price payable by the Underwriters for the Class B
Certificates is ____% of the principal amount of the Class B Certificates plus
accrued interest, if any, at the Certificate Interest Rate (____%) from _______
__, 1995.
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 at which the Underwriters will initially sell the
Offered Certificates:
Class A __________%
Class B __________%
Closing Date and Location:
-------------------------
On or about December ___, 1995, offices of Xxxxx & Xxxx, One World Trade
Center, New York, New York.
X-0
XXXXXXX XXXXX & XX.
XXXXXXX LYNCH, PIERCE, 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-3
