Exhibit 1.2
GREEN TREE FINANCIAL CORPORATION, SELLER
Pass-Through Certificates, Series 199_-_
Classes X-0, X-0, X-0, X-0, X-0, X-0, X-0,
X-0, X-0 and B-2
UNDERWRITING AGREEMENT
----------------------
_____________, 199_
[Underwriter(s)]
[Address]
Dear Sirs:
Green Tree Financial Corporation (the "Company") is a Delaware corporation
with its principal place of business in Saint Xxxx, Minnesota. The Company has
filed a Registration Statement relating to the issuance and sale of Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificates ("Certificates")
evidencing interests in manufactured housing installment sale contracts and
installment loan agreements ("Contracts") and having aggregate outstanding
principal balances of $_________________ (approximate). The Certificates may be
issued in various series, and, within each series, in one or more classes, and,
within each class, in one or more sub-classes, in one or more offerings on terms
determined at the time of sale (each such series, a "Series" and each such
class, a "Class"). The Certificates will be issued under a separate Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") among the Company,
as seller, a servicer to be identified in the prospectus supplement (the
"Servicer") and a trustee to be identified in the prospectus supplement (the
"Trustee"). The Certificates will evidence specified interests in separate pools
of Contracts (each, a "Contract Pool") and certain other property held in trust
with respect to such Series (each, a "Trust Fund"). The form of each Pooling and
Servicing Agreement has been filed as an exhibit to the Registration Statement
(hereinafter defined).
The Certificates are more fully described in a Registration Statement which
the Company has furnished to you. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
The term "you" as
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used herein, unless the context otherwise requires, shall mean
you and such persons as are named as co-managers in the Terms Agreement (defined
below).
Each offering of Certificates pursuant to this Agreement will be made
through you or through an underwriting syndicate managed by you. Whenever the
Company determines to make an offering of Certificates, it will enter into an
agreement (the "Terms Agreement") providing for the sale of such Certificates
to, and the purchase and offering thereof by, you and such other underwriters,
if any, selected by you as have authorized you to enter into such Terms
Agreement on their behalf (the "Underwriters," which term shall include you
whether acting alone in the sale of Certificates or as a member of an
underwriting syndicate). The Terms Agreement relating to each offering of
Certificates shall specify, among other things, the principal amount or amounts
of Certificates to be issued, the price or prices at which the Certificates are
to be purchased by the Underwriters from the Company and the initial public
offering price or prices or the method by which the price or prices at which
such Certificates are to be sold will be determined. A Terms Agreement, which
shall be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between you and the
Company. Each offering of Certificates will be governed by this Agreement, as
supplemented by the applicable Terms Agreement, and this Agreement and such
Terms Agreement shall inure to the benefit of and be binding upon the
Underwriters participating in the offering of such Certificates.
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 (File No. 333-_____________)
(such registration statements, collectively the "Registration Statement"),
relating to the offering of Certificates from time to time in accordance with
Rule 415 under the Securities Act of 1933 (the "1933 Act"), and has filed, and
proposes to file, such amendments thereto as may have been required to the date
hereof pursuant to the 1933 Act and the rules of the Commission thereunder (the
"Regulations"). Such Registration Statement, as amended at the time when it
became effective under the 1933 Act, and the Prospectus relating to the sale of
Certificates by the Company constituting a part thereof, as from time to time
each is amended or supplemented pursuant to the 1933 Act or otherwise, are
referred to herein as the "Registration Statement" and the "Prospectus"
respectively; provided, however that a supplement to the Prospectus contemplated
by Section 3(a) hereof (a "Prospectus Supplement") shall be deemed to have
supplemented the Prospectus only with respect to the offering or offerings of
Certificates to which it relates.
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SECTION 1. Representations and Warranties. The Company represents and
warrants to you as of the date hereof, and to the Underwriters named in the
Terms Agreement, all as of the date of such Terms Agreement (in each case, the
"Representation Date"), as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective did, and as of the applicable
Representation Date will, comply in all material respects with the
requirements of the 1933 Act and the Regulations. The Registration
Statement, at the time it became effective did not, and as of the
applicable Representation Date will not, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, as amended or supplemented at the time the Registration
Statement became effective did not, and as amended or supplemented as of
the applicable Representation Date will not, contain any untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements therein, 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 the Company in writing
by the Underwriters expressly for use in the Registration Statement or
Prospectus. The conditions to the use by the Company of a registration
statement on Form S-3 under the 1933 Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement, as applicable, and the Prospectus. There are no
contracts or documents of the Company 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.
(b) The Company 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 Pooling and Servicing
Agreement and the Terms Agreement; and the Company 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 requires such qualification.
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(c) The Company is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or its properties may be bound, which
default might result in any material adverse change in the
financial condition, earnings, affairs or business of the Company or which
might materially and adversely affect the properties or assets thereof.
(d) The execution and delivery by the Company of this Agreement, the
Terms Agreement and the Pooling and Servicing Agreement are within the
corporate power of the Company and have been duly authorized by all
necessary corporate action on the part of the Company; and neither the
issuance and sale of the Certificates to the Underwriters, nor the
execution and delivery by the Company of this Agreement and the Pooling and
Servicing Agreement, nor the consummation by the Company of the
transactions therein contemplated, nor compliance by the Company 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 the Company or its properties or the certificate of
incorporation or by-laws of the Company, or any of the provisions of any
indenture, mortgage, contract or other instrument to which the Company is a
party or by which it is bound or result in the creation or imposition of
any lien, charge or encumbrance upon any of its property pursuant to the
terms of any such indenture, mortgage, contract or other instrument.
(e) This Agreement has been, and the Terms Agreement when executed
and delivered as contemplated hereby and thereby will have been, duly
authorized, executed and delivered by the Company, and each constitutes, or
will constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against the Company 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 applicable securities laws.
(f) The Pooling and Servicing Agreement when executed and delivered
as contemplated hereby and thereby will have
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been duly authorized, executed and delivered by the Company, and will
constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against the Company in accordance with its terms,
subject (i) to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally and
(ii) as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(g) As of the Closing Time (as defined below), the Certificates will
have been duly and validly authorized by the Company, 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 the Company of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement or the
Terms Agreement, except such as may be required under the 1933 Act, the
Regulations, or state securities or Blue Sky laws.
(i) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by it and as described in the Prospectus and the Company has
received no notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the business,
operations, financial condition or earnings of the Company.
(j) As of the Closing Time, the Contracts constituting a portion of
the Trust Fund will have been duly and validly assigned to the Trustee in
accordance with the Pooling and Servicing Agreement; and when such
assignment is effected, a duly and validly perfected transfer of all such
Contracts subject to no prior lien, mortgage, security interest, pledge,
charge or other encumbrance created by the Company will have occurred.
(k) As of the Closing Time, each of the Contracts will meet the
eligibility criteria described in the Prospectus.
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(l) Neither the Company nor the Trust Fund created by the Pooling and
Servicing Agreement will be subject to registration as an "investment
company" under the Investment Company Act of 1940, as amended (the "1940
Act").
(m) The Certificates, the Pooling and Servicing Agreement, the Terms
Agreement, any Standard Hazard Insurance Policies and the Limited Guarantee
conform in all material respects to the descriptions thereof contained in
the Prospectus.
SECTION 2. Purchase and Sale. The commitment of the Underwriters to
purchase Certificates pursuant to any Terms Agreements shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Certificates to be
purchased by the Underwriters shall be made at the office of
_________________________, or at such other place as shall be agreed upon by you
and the Company, at such time or date as shall be agreed upon by you and the
Company in the Terms Agreement (each such time and date being referred to as a
"Closing Time"). Unless otherwise specified in the Terms Agreement, payment
shall be made to the Company, at the option of the Company, either (a) by
certified or official bank check or checks in New York Clearing House or similar
next day funds payable to the order of the Company, or (b) in immediately
available Federal funds wired to such bank as may be designated by the Company;
provided, however, that if payment is made in immediately available Federal
funds if so specified in the Terms Agreement, the Company shall simultaneously
reimburse the Underwriters for the cost to the Underwriters of such funds, based
on the Underwriters' cost of borrowing such funds for one day at their most
favorable commercial paper rate at the Closing Time. Such Certificates shall be
in such denominations and registered in such names as you may request in writing
at least two business days prior to the applicable Closing Time. Such
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 applicable Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each of
you and the Underwriters participating in the applicable offering of
Certificates, as follows:
(a) Immediately following the execution of the Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of Certificates covered thereby, the price or prices at which the
Certificates are to
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be purchased by the Underwriters from the Trust, either the initial public
offering price or prices or the method by which the price or prices by
which the Certificates are to be sold will be determined, the selling
concession(s) and reallowance(s), if any, any delayed delivery
arrangements, and such other information as you and the Company deem
appropriate in connection with the offering of the Certificates. The
Company will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 under the 1933 Act and will
furnish to the Underwriters as many copies of the Prospectus and such
Prospectus Supplement as you shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Certificates by you or the
Underwriters, any event shall occur or condition exist as a result of which
it is necessary, in the opinion of your counsel, counsel for the Company,
or otherwise, to further amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in the light of circumstances existing at the time it is delivered to a
purchaser, not misleading or if it shall be necessary, in the opinion of
any such counsel or otherwise, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the Regulations thereunder, the Company
will promptly prepare and 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
within two business days will furnish to the Underwriters as many copies of
the Prospectus, as so amended or supplemented, as you shall reasonably
request.
(c) The Company will give you reasonable notice of its 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 Act, as amended (the "1934 Act")), 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) The Company 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
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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, the Prospectus or any
Prospectus Supplement, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or suspension of the qualification of the
Certificates or the initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance of any
such stop order or suspension and, if any such stop order or suspension is
issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company will deliver to you as many signed and as many
conformed copies of the Registration Statement (as ordinarily filed) and of
each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated by reference in the
Prospectus) as you may reasonably request.
(f) The Company 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. The Company 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) If the Company has elected to cause the applicable Contract Pool
to be treated as a real estate mortgage investment conduit (a "REMIC"), the
Company will prepare, or cause to be prepared, and file, or cause to be
filed a timely election to treat the Contract Pool as a REMIC for federal
income tax purposes and will file, or cause to be filed, such tax returns
and take such actions, all on a timely basis, as are required to elect and
maintain such status.
(h) The Company will file with the Commission within fifteen days of
the issuance of the Certificates a current report on Form 8-K setting forth
specific information concerning the Certificates and the Contract Pool to
the extent that such information is not set forth in the Prospectus. The
Company will also file with the Commission a current report on Form 8-K
setting forth all Computational
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Materials, ABS Term Sheets and Collateral Term Sheets (as each defined in
Section 5 hereof) provided to the Company by any Underwriter within the
applicable time periods allotted for such filing pursuant to the No-Action
Letters (as defined in Section 5 hereof).
(i) In connection with any Computational Materials, ABS Term Sheets
or Collateral Term Sheets provided by an Underwriter pursuant to Section 5,
the Company must receive a letter from ______________________, certified
public accountants, satisfactory in form and substance to the Company, to
the effect that such accountants have performed certain specified
procedures, all of which have been agreed to by the Company, as a result of
which they have determined that the information included in the
Computational Materials, ABS Term Sheets or Collateral Term Sheets (if
any), provided by the Underwriter(s) to the Company for filing on Form 8-K
pursuant to Section 5 and subsection (h), is accurate except as to such
matters that are not deemed by the Company to be material. The foregoing
letter shall be obtained at the expense of any Underwriter who has prepared
such Computational Materials, ABS Term Sheets or Collateral Term Sheets.
(j) In the event that an Underwriter must prepare corrected
Computational Materials, ABS Term Sheets or Collateral Term Sheets pursuant
to Section 5(d), the Company shall file any corrected Computational
Materials, ABS Term Sheets or Collateral Term Sheets no later than two days
following receipt thereof.
(k) As soon as practicable, but not later than sixteen months after
the original effective date of the Registration Statement, the Company will
cause the Trust to make generally available to Certificateholders an
earnings statement of the Trust covering a period of at least twelve months
beginning after the effective date of the Registration Statement that will
satisfy the provisions of Section 11(a) of the Act and Rule 158 promulgated
thereunder.
(l) The Company will file the Monthly Report on Form 8-K for a period
of twelve months following the applicable Closing Time.
SECTION 4. Conditions of Underwriters' Obligations. The Obligations of the
Underwriters to purchase Certificates pursuant to any Terms Agreement are
subject to the accuracy of the representations and warranties on the part of the
Company herein contained, to the accuracy of the statements of the Company's
officers made pursuant hereto, to the performance by the Company of
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all of its obligations hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued or
proceedings therefor initiated or threatened by the Commission, (ii) the
Certificates shall have received the rating or 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, together with
the applicable Prospectus Supplement at the time it was required to be
delivered to a purchaser of the Certificates, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order
to make the statements therein, in light of the circumstances existing at
such time, not misleading.
(b) At the applicable Closing Time you shall have received:
(1) The favorable opinion, dated as of the applicable Closing
Time, of _________________, counsel for the Company, as Seller and Servicer
of the Contracts, in form and substance satisfactory to such of you as may
be named in the applicable Terms Agreement, to the effect that:
(i) The Company 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 the Company of this
Agreement, the applicable Terms Agreement and the Pooling and
Servicing Agreement and the signing of the Registration Statement by
the Company are within the corporate power of the Company and have
been duly authorized by all necessary corporate action on the part of
the Company.
(iii) This Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company, and each
is a valid and binding obligation of the Company enforceable against
the Company 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
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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 Pooling and Servicing Agreement (including the Limited
Guarantee contained therein) and the Registration Statement have been
duly authorized, executed and delivered by the Company, and are the
valid and binding obligations of the Company enforceable against the
Company in accordance with its terms, except that (A) such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights generally and (B) such enforcement may be limited by
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
(v) None of the transfer of the Contracts to the Trust, the
issue and sale of the Certificates or the consummation of the
transactions contemplated herein nor the fulfillment of the terms
hereof will, to the best of such counsel's knowledge, conflict with or
constitute a breach of, or default under, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company is a party or by which it may be bound or to which the
property or assets of the Company are subject (which contracts,
indentures, mortgages, loan agreements, notes, leases and other such
instruments have been identified by the Company to such counsel), nor
will such action result in any violation of the provisions of the
certificate of incorporation or by-laws of the Company or, to the best
of such counsel's knowledge, any order or regulation known to us to be
applicable to the Company of any state or federal court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over the Company.
(vi) The Certificates have been duly authorized and, when
executed and authenticated as specified in the Pooling and Servicing
Agreement and delivered and paid for pursuant to this Agreement and
the applicable Terms Agreement, will be duly issued and entitled to
the benefits of the Pooling and Servicing Agreement.
(vii) The Pooling and Servicing Agreement creates a valid
security interest in favor of the Trustee in the
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Contracts and other property included in the Trust Fund on the date
hereof, which security interest of the Trustee in the Contracts and
the Trust Fund will be perfected and will constitute a first perfected
security interest upon the Trustee's taking possession of the
Contracts and the filing of Uniform Commercial Code ("UCC") financing
statements in the offices of the Secretary of State of Minnesota;
provided, however, that such counsel may take customary exceptions
acceptable to you. Such counsel need express no opinion (a) as to the
continuation of a security interest in the Contracts in the event the
Trustee relinquishes possession of such Contracts and a subsequent
purchaser takes possession without notice of the Trustee's interest,
(b) as to the continuation of a security interest in the Contracts if
the Trustee does not file continuation statements as required by the
Pooling and Servicing Agreement or (c) as to the priority of any
security interest in the Contracts against any liens, claims or other
interests that arise by operation of law and do not require any filing
or similar action in order to take priority over perfected security
interests.
(viii) To the best of such counsel's knowledge, no filing or
registration with or notice to or consent, approval, authorization or
order of any Minnesota or federal court or governmental authority or
agency is required to be obtained by the Company for the consummation
by the Company of the transactions contemplated by the Pooling and
Servicing Agreement, except such as may be required under the 1933 Act
or the Regulations, or state securities or Blue Sky laws.
(ix) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(x) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
(xi) The conditions to the use by the Company of a registration
statement on Form S-3 under the 1933 Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus. To the best of such
counsel's knowledge, there are no contracts or documents of the
Company
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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 Supplement under the
heading "Summary of the Terms of the Offered Certificates -- Certain
Federal Income Tax Consequences" and in 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 Fund created by the Pooling and Servicing
Agreement is not, and will not as a result of the offer and sale of
the Certificates as contemplated in the Prospectus and in this
Agreement become, an "investment company" or "under the control of an
investment company" as such terms are defined in the 1940 Act.
(xiv) The statements in the Prospectus and the Prospectus
Supplement under the caption "Description of the Certificates,"
insofar as such statements purport to summarize certain terms of the
Certificates and the Pooling and Servicing Agreement, constitute a
fair and accurate summary of such documents.
(xv) The Registration Statement and the Prospectus (other than
the financial statements and other financial, statistical and
numerical information included therein, as to which no opinion need be
rendered) as of their respective effective or issue dates, complied as
to form in all material respects with the requirements of the 1933 Act
and the Regulations thereunder.
(xvi) The execution, delivery and performance by the Company of
the Pooling and Servicing Agreement do not require the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of any federal, state or other
governmental agency or authority which has not previously been
effected.
(xvii) To such counsel's knowledge, there are no pending or
overtly threatened lawsuits or claims against the Company or relating
to the transactions contemplated
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by the Underwriting Agreement and the Pooling and Servicing Agreement
which, if adversely determined, would have a material adverse effect
on the transactions contemplated by the Underwriting Agreement and the
Pooling and Servicing Agreement.
Such counsel shall deliver to you such additional opinions addressing the
transfer by the Company to the Trustee of its right, title and interest in and
to the Contracts and other property included in the Trust Fund on the Closing
Time as may be required by each Rating Agency rating the Certificates.
Such counsel shall state that it has participated in the conferences with
officers and other representatives of the Company, your counsel, representatives
of the independent accountants for the Company 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)
and (xiv) above) and has made no independent check or verification 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 the Terms Agreement
contained, and the Prospectus on the date hereof contains, any untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that such counsel need express no
view with respect to the financial statements, schedules and other financial,
statistical and numerical data included in or incorporated by reference into the
Registration Statement or the Prospectus.
Said counsel may state that they are admitted to practice only in the State
of Minnesota, that they are not admitted to the Bar in any other State and are
not experts in the law of any other State and to the extent that the foregoing
opinions concern the laws of any other State such counsel may rely upon the
opinion of counsel satisfactory to the Underwriters and admitted to practice in
such jurisdiction. Any opinions relied upon by such counsel as aforesaid shall
be addressed to the Underwriters and shall be delivered together with the
opinion of such counsel, which shall state that such counsel believes that their
reliance thereon is justified.
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(2) The favorable opinion, dated as of the applicable Closing
Time, of ___________, ________________ to the Company, as Seller and
Servicer of the Contracts, 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 the Company.
(ii) The Company is qualified to do business, and is in good
standing, as a foreign corporation in each U.S. jurisdiction in which
the character of the business owned or leased by it makes such
qualification necessary, except where the failure to be so qualified
would not have a material adverse effect on the financial condition of
the Company.
(3) The favorable opinion of counsel to the Trustee, dated as
of the applicable Closing Time, addressed to you and in form and scope
satisfactory to your counsel, to the effect that:
(i) The Trustee has duly authorized, executed and delivered
the Pooling and Servicing Agreement and the Pooling and Servicing
Agreement is enforceable against the Trustee in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(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.
15
(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) To the extent specified in the applicable Terms Agreement,
if any of the Contracts constituting a portion of the Trust Fund with
respect to a Series have been or are being purchased by the Company from a
third party, the favorable opinion of counsel to such third party, dated as
of the applicable Closing Time, addressed to you and in form and scope
satisfactory to your counsel to the effect that such third party has
effectively conveyed to the Company all of its right, title and interest in
and to such Contracts as of the applicable Closing Time, and upon the
occurrence of any proceedings with respect to such third party under the
federal or state bankruptcy, insolvency or similar law, or the appointment
of or taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of such third party or of
any substantial part of its property or the making by such third party of
an assignment for the benefit of creditors, such Contracts would not be
deemed to be part of the assets of such third party pursuant to the
principles of substantive consolidation or otherwise.
(5) The favorable opinion or opinions, dated as of the
applicable Closing Time, of counsel for the Underwriters with respect to
the issue and sale of the Certificates, the Registration Statement, this
Agreement, the Prospectus, the applicable Prospectus Supplement and other
related matters as the Underwriters may require.
(c) At the applicable Closing Time you shall have received a
certificate of the President or a Vice President of the Company, dated as
of such Closing Time, to the effect that the representations and warranties
of the Company contained in Section 1 are true and correct with the same
force and effect as though such Closing Time were a Representation Date.
(d) You shall have received from ________________ or other
independent certified public accountants acceptable to you, a letter, dated
as of the date of the applicable Terms Agreement, or as soon thereafter as
is practicable, and as of
16
the applicable Closing Time, delivered at such times, in the form
heretofore agreed to.
(e) At the applicable Closing Time you shall have received, addressed
to you, any additional opinions delivered by counsel pursuant to the
request of the Rating Agency or Rating Agencies rating the Certificates.
(f) At the applicable Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they
reasonably may require for the purpose of enabling them to pass upon the
issuance and sale of the Certificates as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of any of
the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Certificates as herein
contemplated shall be satisfactory in form and substance to you and counsel
for the Underwriters.
(g) At the applicable Closing Time, each of the representations and
warranties of the Company set forth in the Pooling and Servicing Agreement
will be true and correct.
(h) As of the applicable Closing Time, any Limited Guarantee will
have been duly and validly authorized, executed and delivered by, and will
constitute a legal, valid and binding obligation of, the provider of such
Limited Guarantee, enforceable 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).
(i) As of the applicable Closing Time, the Pooling and Servicing
Agreement will have been duly authorized, executed and delivered by, and
will constitute a legal, valid and binding obligation of, the Servicer,
enforceable against the Servicer in accordance with its terms, subject to
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally and as to
enforceability, to general principles of equity (regardless whether
enforcement is sought in a proceeding in equity or at law).
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms Agreement may be
terminated by you by notice to the Company at any time at or prior to the
applicable Closing Time, and such
17
termination shall be without liability of any party to any other party except as
provided in Section 6.
SECTION 5. Investor Information. Each Underwriter may prepare and provide
to prospective investors certain Computational Materials, ABS Term Sheets or
Collateral Term Sheets in connection with its offering of the Certificates,
subject to the following conditions:
(a) Such Underwriter shall comply with the requirements of the No-
Action Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx
Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994 (collectively, the "Xxxxxx/PSA
Letter"), and the requirements of the No-Action Letter of February 17, 1995
issued by the Commission to the Public Securities Association (the "PSA
Letter" and, together with the Xxxxxx/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" shall have the
meaning given such term in the No-Action Letters, but shall include only
those Computational Materials that have been prepared or delivered to
prospective investors by any Underwriter. For purposes hereof, "ABS Term
Sheets" and "Collateral Term Sheets" shall have the meanings given such
terms in the PSA Letter but shall include only those ABS Term Sheets or
Collateral Term Sheets that have been prepared or delivered to prospective
investors by any Underwriter.
(c) Each Underwriter shall provide to the Company any Computational
Materials, ABS Term Sheets or Collateral Term Sheets which are provided to
investors no later than the date preceding the date such Computational
Materials, ABS Term Sheets or Collateral Term Sheets are required to be
filed pursuant to the applicable No-Action Letters. Each Underwriter may
provide copies of the foregoing in a consolidated or aggregated form
including all information required to be filed.
(d) In the event that the Company or any Underwriter discovers an
error in the Computational Materials, ABS Term Sheets or Collateral Term
Sheets, the Underwriter that prepared such material shall prepare corrected
Computational Materials, ABS Term Sheets or Collateral Term Sheets and
deliver it to the Company for filing pursuant to Section 3(j).
18
SECTION 6. Payment of Expenses. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including without
limitation those related to (i) the filing of the Registration Statement and all
amendments thereto, (ii) the printing and delivery to the Underwriters, in such
quantities as you may reasonably request, of copies of this Agreement, each
Terms Agreement, any agreements among Underwriters and selling agreements and
the Underwriters' questionnaires and powers of attorney, (iii) the preparation,
issuance and delivery of the Certificates to the Underwriters, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification of
the Certificates under securities and Blue Sky laws and the determination of the
eligibility of the Certificates for investment in accordance with the provisions
of Section 3(f), including filing fees, and the fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky Survey and Legal Investment Survey, (vi) the
printing and delivery to the Underwriters, in such quantities as you may
reasonably request, hereinafter stated, of copies of the Registration Statement
and Prospectus and all amendments and supplements thereto, and of any Blue Sky
Survey and Legal Investment Survey, (vii) the printing and delivery to the
Underwriters, in such quantities as you may reasonably request, of copies of the
Pooling and Servicing Agreement, (viii) the fees charged by investment rating
agencies for rating the Certificates, (ix) the fees and expenses incurred in
connection with the listing of the Certificates on any national securities
exchange, (x) the fees and expenses incurred with respect to the National
Association of Securities Dealers, Inc., including the fees and disbursements of
counsel for the Underwriters in connection therewith and (xi) the fees and
expenses of the Trustee and its counsel.
If a Terms Agreement is terminated by you in accordance with the provisions
of Section 4 or Section 10(i) hereof, the Company shall reimburse you for all
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriter.
SECTION 7. Indemnification. (a) The Company agrees to indemnify and hold
harmless the Underwriters and each person, if any, who controls the Underwriters
within the meaning of Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, (x) 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
19
make the statements therein not misleading or (y) 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 the Company by the Underwriters
expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto);
(2) 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 Computational
Materials, ABS Term Sheets or Collateral Term Sheets distributed by any
Underwriter; unless such untrue statement or alleged untrue statement of a
material fact was made in reliance upon and in conformity with Derived
Information (defined below) provided by the Underwriters expressly for use
in the Computational Materials, the ABS Term Sheets or the Collateral Term
Sheets and the untrue statement or alleged untrue statement did not derive
from an inaccuracy in the Seller-Provided Information (defined below) used
in the preparation of such Computational Materials, ABS Term Sheets or
Collateral Term Sheets;
(3) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, (A) if such
settlement is effected with the written consent of the Company or (B) if
such settlement is effected without the written consent of the Company more
than 30 days after receipt by the Company of a notice from the
Underwriters, substantially reflecting the proposed terms of such
settlement, to which the Company has not responded prior to the date such
settlement is effected; and
(4) 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
20
under (1), (2) or (3) above, which expenses shall be reimbursed as they are
incurred.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have. Insofar as this indemnity may permit indemnification
for liabilities under the 1933 Act of any person who is a partner of the
Underwriters entitled to indemnity hereby or who controls the Underwriters
within the meaning of Section 15 of the 1933 Act and who, at the date of this
Agreement, is a director, officer or controlling person of the Company, such
indemnity agreement is subject to the undertaking of the Company in the
Registration Statement.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of the Company's directors, each of the Company's officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, 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 the Company by the Underwriters 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 which such Underwriter may otherwise have; and
(2) against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or alleged untrue
statements made in the Computational Materials, Collateral Term Sheets or
ABS Term Sheets to the extent that such untrue statement or alleged untrue
statement of a material fact was made in reliance upon and in conformity
with Derived Information provided by the Underwriters expressly for use in
the Computational Materials, the ABS Term Sheets or the Collateral Term
Sheets and the untrue statements or alleged untrue statements did not
derive from an inaccuracy in the Seller-Provided Information used in the
preparation of such Computational Materials, ABS Term Sheets or Collateral
Term Sheets.
This indemnity agreement will be in addition to any liability which such
Underwriter may otherwise have.
21
For purposes of this Agreement, as to each Underwriter, "Derived
Information" means such portion, if any, of the information delivered to the
Company by such Underwriter pursuant to Section 5 for filing with the Commission
on Form 8-K which information (i) is not contained in the Prospectus without
taking into account information incorporated therein by reference, and (ii) does
not constitute Seller-Provided Information. "Seller-Provided Information" means
any computer tape (or other information) furnished to any Underwriter by or on
behalf of the Company concerning the assets of the Trust Fund.
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it with respect to which indemnity may be
sought hereunder but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have on account of this indemnity
agreement to the extent such indemnifying party was not materially prejudiced by
such failure or which 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; 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 8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 7 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company 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 the Company and one or more of the
Underwriters (i) in such proportion as shall be appropriate to reflect the
relative benefit received by the Underwriters, as represented by the percentage
that the Underwriting discount or discounts on the cover of such Prospectus
Supplement bears to the initial public offering price or prices as set forth
thereon, and the Company shall be responsible for the balance; or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the benefit referred to in
clause (i) above but also the relative fault of the Company 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
22
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. For purposes of this Section, each person, if
any, who controls the Underwriters within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Underwriters and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company 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 the Company
and shall survive delivery of any Certificates to the Underwriters.
SECTION 10. Termination of Agreement. This Agreement may be terminated for
any reason at any time by either the Company or you upon the giving of thirty
days' written notice of such termination to the other party hereto. You, as
Representative of the Underwriters named in any Terms Agreement, may also
terminate such Terms Agreement, immediately upon notice to the Company, at any
time at or prior to the applicable Closing Time (i) if there has been, since the
date of such Terms Agreement or since the respective dates as of which
information is given in the Registration Statement or Prospectus any change, or
any development involving a prospective change in, or affecting, the condition,
financial or otherwise, earnings, affairs or business of the Company whether or
not arising in the ordinary course of business, which in your judgment would
materially impair the market for, or the investment quality of, the
Certificates, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or if there has occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable to proceed with the offering or delivery of the Certificates or
enforce contracts for the sale of the Certificates, or (iii) if trading in any
securities of the Company 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
23
governmental authority, or if a banking moratorium has been declared by either
Federal, Minnesota, or New York authorities. In the event of any such
termination, (A) the covenants set forth in Section 3 with respect to any
offering of Certificates shall remain in effect so long as the Underwriters own
any such Certificates purchased from the Company pursuant to the applicable
Terms Agreement and (B) the covenant set forth in Section 3(c), the provisions
of Section 6, the indemnity agreement set forth in Section 7, and the
contribution provisions set forth in Section 8, and the provisions of Sections 9
and 14 shall remain in effect.
SECTION 11. Default by One or More of the Underwriters. If one or more of
the Underwriters participating in an offering of Certificates shall fail at the
applicable Closing Time to purchase the Certificates which it or they are
obligated to purchase hereunder and under the applicable Terms Agreement (the
"Defaulted Certificates"), then such of you as are named therein shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Certificates in such amounts as may be agreed
upon and upon the terms herein set forth. If, however, you have not completed
such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Certificates does
not exceed 10% of the aggregate principal amount of the Certificates to be
purchased pursuant to such Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all such non-
defaulting Underwriters, or
(b) 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 applicable 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 applicable Terms Agreement.
In the event of a default by any Underwriters as set forth in this Section,
either you or the Company shall have the right to postpone the applicable
Closing Time for a period of time not exceeding seven days in order that any
required changes in the
24
Registration Statement or Prospectus or in any other documents or arrangements
may be effected.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to you at the address set forth on the first page
hereof, attention of the Syndicate Registration Department. Notices to the
Company 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 13. Parties. This Agreement shall inure to the benefit of and be
binding upon you and the Company and any Terms Agreement shall inure to the
benefit of and be binding upon the Company and any Underwriter who becomes a
party to a Terms Agreement, and their respective successors. Nothing expressed
or mentioned in this Agreement or a 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 7, 8 and 9 and their heirs and
legal representatives any legal or equitable right, remedy or claim under or
with respect to this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof or thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives (to
the extent of their rights as specified herein and therein) and for the benefit
of no other person, firm or corporation. No purchaser of Certificates from any
Underwriters shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. Governing Law and Time. This Agreement and each 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 15. Counterparts. This Agreement and any 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.
25
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you and the
Company in accordance with its terms.
Very truly yours,
GREEN TREE FINANCIAL CORPORATION
By: ___________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
[UNDERWRITER(S)]
By: ________________________________
Name:
Title:
26
EXHIBIT A
GREEN TREE FINANCIAL CORPORATION, SELLER
Pass-Through Certificates, Series 199 -
Classes X-0, X-0, X-0, X-0, X-0, X-0, X-0,
X-0, X-0 and B-2
FORM OF TERMS AGREEMENT
-----------------------
Dated: ___________, 199
To: Green Tree Financial Corporation, (the "Company")
under the Pooling and Servicing Agreement, dated as of
___________, 199_ (the "Pooling and Servicing Agreement")
Re: Underwriting Agreement dated ______________, 199
Series Designation: Manufactured Housing Contract
------------------
Senior/Subordinate Pass-Through Certificates,
Series 199 - , Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class M-1, Class B-1 and
Class B-2
Co-managers:
-----------
Terms of the Certificates:
-------------------------
Original
Principal Remittance
Class Amount* Rate
----- --------- ----------
Class A-1 $_____________ ____% per annum, computed on the
basis of the actual number of days
and a 360-day year
Class A-2 $_____________ ____% per annum, computed on the
basis of a 360-day year of twelve
30-day months
A-1
Class A-3 $__________ ____% per annum, computed on the
basis of a 360-day year of twelve
30-day months
Class A-4 $__________ _____% per annum, computed on the
basis of a 360-day year of twelve
30-day months
Class A-5 $__________ ____% per annum, computed on the
basis of a 360-day year of twelve
30-day months
Class A-6 $___________ ____% per annum, computed on the
basis of a 360-day year of twelve
30-day months
Class A-7 $___________ ____% per annum, subject to a
maximum rate equal to the weighted
average of the Contract Rates on
each Contract in the Contract
Pool, computed on the basis of a
360-day year of twelve 30-day
months
Class M-1 $___________ ____% per annum, subject to a
maximum rate equal to the weighted
average of the Contract Rates on
each Contract in the Contract
Pool, computed on the basis of a
360-day year of twelve 30-day
months
Class B-1 $___________ ____% per annum, subject to a
maximum rate equal to the weighted
average of the Contract Rates on
each Contract in the Contract
Pool, computed on the basis
A-2
of a 360-day year of twelve 30-day
months
Class B-2 $__________ ____% per annum, subject to a
maximum rate equal to the weighted
average of the Contract Rates on
each Contract in the Contract
Pool, computed on the basis of a
360-day year of twelve 30-day
months
* Approximate. Subject to permitted variance of plus or minus 5%.
A-3
Certificate Ratings:
-------------------
Class A-1: "____" by Standard & Poor's ("S&P") and "____" by Fitch
Investors Service, L.P. ("Fitch").
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7: "____" by
S&P and "___" by Fitch.
Class M-1: "___" by S&P and "___" by Fitch.
Class B-1: "___" by S&P and "____" by Fitch.
Class B-2: "___" by S&P and "___" by Fitch.
REMIC Election:
--------------
The Company intends to elect to cause the Trust to be treated as a REMIC.
Servicer:
--------
Green Tree Financial Corporation (in such capacity, the "Servicer")
Trust:
-----
The Trust shall include actuarial manufactured housing installment sale
contracts and installment loan agreements (the "Contracts") conveyed by the
Company listed in Exhibit N to the Pooling and Servicing Agreement.
The corpus of the Trust consists of (a) all the rights, benefits, and
obligations arising from and in connection with each Contract and any related
Mortgage, (b) all rights under any Hazard Insurance Policy relating to a
Manufactured Home securing a Contract for the benefit of the creditor of such
Contract and proceeds from the Errors and Omissions Protection Policy and any
blanket hazard policy to the extent such proceeds relate to any Manufactured
Home, (c) all rights under any FHA/VA Regulation pertaining to any FHA/VA
Contract, (d) all remittances, deposits and payments made into the Certificate
Account and amounts in the Certificate Account, (e) all proceeds in any way
derived from any of the foregoing items, (f) all documents contained in the
Contract Files or the Land-and-Home Contract Files, (g) the Limited Guarantee
for the benefit of the Class B-2 Certificateholders, (h) the obligations and
related demand note of the Company delivered pursuant to Section 3.05(c) of the
A-4
Pooling and Servicing Agreement, and the related Staged-Funding Contract Reserve
Account, (i) the Capitalized Interest Account, if any, and (j) the Excess
Proceeds Accounts, if any.
Credit Enhancement:
------------------
Subordination of Class M-1, Class B and Class C Certificates to Class A
Certificates. Subordination of Class B and Class C Certificates to Class M-1
Certificates. Subordination of Class B-2 and Class C Certificates to Class B-1
Certificates. Limited Guarantee and subordination of Class C Certificates to
Class B-2 Certificates.
Payment Dates:
-------------
The 15th day (or if such day is not a business day, the next succeeding
business day) of each month commencing ___________, 199_.
Purchase Price:
--------------
Subject to the terms of the following paragraph, the purchase price payable
by the Underwriters for each Class of Class A Certificates is _______% of the
principal amount of the Class A-1 Certificates; _________% of the principal
amount of the Class A-2 Certificates; _________% of the principal amount of the
Class A-3 Certificates; _________% of the principal amount of the Class A-4
Certificates; _________% of the principal amount of the Class A-5 Certificates;
_________% of the principal amount of the Class A-6 Certificates; _________% of
the principal amount of the Class A-7 Certificates; _________% of the
principal amount of the Class M-1 Certificates; _________% of the principal
amount of the Class B-1 Certificates and ______% of the principal amount of the
Class B-2 Certificates.
Any allocation of the Certificates among [Underwriters] will be governed by
the Agreement Among Underwriters.
Payment of the purchase price shall be in immediately available Federal
funds wired to such bank as may be designated by the Company.
Underwriting Commission:
-----------------------
Notwithstanding anything to the contrary in the Underwriting Agreement, no
additional underwriting commission shall be payable by
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the Company to the Underwriters in connection with the purchase of the
Certificates.
Public Offering price and/or method of determining price at which the
Underwriters will sell the Certificates:
Class A-1: ________%
Class A-2: ________%
Class A-3: ________%
Class A-4: ________%
Class A-5: ________%
Class A-6: ________%
Class A-7: ________%
Class M-1: ________%
Class B-1: ________%
Class B-2: ________%
Closing Date and Location:
-------------------------
On or about ____________ __, 199 , offices of _________________, New York,
New York.
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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 and the
Company in accordance with its terms.
[UNDERWRITER(s)]
By: ________________________________
Name:
Title:
ACCEPTED:
GREEN TREE FINANCIAL CORPORATION
By: ___________________________
Name:
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