EXHIBIT 1.1
UNDERWRITING AGREEMENT
__________, 19____
Green Tree Financial Corporation
1100 Landmark Towers
000 Xx. Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Dear Sirs:
We (the "Representatives") understand that Green Tree Financial
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
$_________ aggregate principal amount of __________________ (the "Offered
Securities"), to be issued pursuant to the provisions of the [Indenture dated as
of ___________, between the Company and __________, as Trustee] [Indenture dated
as of __________, between the Company and __________, as Trustee] (the
"Indenture"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to sell and the
underwriters named on Schedule A hereto (such underwriters being herein called
the "Underwriters") agree to purchase, severally and not jointly, the principal
amounts of such Offered Securities set forth opposite their names on Schedule A
at ________% of their principal amount [and accrued interest from
________________, 19______ to the date of payment and delivery].
The Underwriters will pay for such Offered Securities upon delivery
thereof at the offices of [name], [address] at 10:00 A.M. (local time) on
______________, 19___ or at such other time, not later than ____________,
19_____ as shall be designated by the Representatives.
The Offered Securities shall have the terms set forth in the Company's
Prospectus Supplement, dated __________, 19_____ and the Prospectus dated
_________, 19______ (the "Basic Prospectus") [,] [.] particularly as follows:
[Maturity: _________, 19______
Interest Rate: ________%
Redemption Provisions: Redeemable at the option of the Company, as a
whole or in part, at any time after _________, 19____ at _____% to and
including ________, 19____ , at deceasing prices thereafter to and
including ________, 19 _____ and thereafter at 100%.
Interest Payment Dates:
Other terms:]
[Exercise Price:
Exercise Dates:
Transferability Provisions:
Other terms:]
[Describe, if applicable, opinion of tax counsel to the Company to be
delivered pursuant to Section V(b)]
All the provisions contained in the document entitled __________
Underwriting Agreement Standard Provisions set forth as Exhibit A hereto (the
"Standard Provisions"), are herein incorporated by reference in their entirety
and shall be deemed to be a part of this Agreement to the same extent as if such
Standard Provisions had been set forth in full herein.
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Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below. This Agreement may be
signed in any number of counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument.
Very truly yours,
[Names of Representative[s]]
[On behalf of
[themselves-itself and as
Representative[s] of the
Several] [As] Underwriter[s]
[By_________________________]
[By_________________________
[Title]
Accepted: __________, 19____
__________
By__________________________
Name:
Title:
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EXHIBIT A
GREEN TREE FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
From time to time Green Tree Financial Corporation, a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to one or more underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as "this Agreement". Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein as therein
defined.
I.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus specifically
relating to the Securities, and has filed with, or mailed for filing to, the
Commission a prospectus supplement specifically relating to the Securities
pursuant to Rule 424 of the rules and regulations promulgated under the
Securities Act of 1933, as amended (the "Securities Act"). The term Registration
Statement means the registration statement as amended to the date of the
Underwriting Agreement. The term Basic Prospectus means the prospectus included
in the Registration Statement. The term Prospectus means the Basic Prospectus
together with the prospectus supplement in the form first used to confirm sales
of the Offered Securities. The term preliminary prospectus means a preliminary
prospectus supplement specifically relating to the Securities together with the
Basic Prospectus. As used herein, the terms "Registration Statement", "Basic
Prospectus", "Prospectus" and "preliminary prospectus" shall include in each
case the material, if any, incorporated by reference therein. The term
"Securities" means the Offered Securities described in the Underwriting
Agreement of which this Agreement is a part.
The term "Underwriters' Securities" means the Offered Securities to be
purchased by the Underwriters herein.
II.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved
by the Company and of the types set forth in the Prospectus. On the Closing Date
(as hereinafter defined), the Company will pay the Representatives as
compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters, and the
aggregate principal amount of Offered Securities to be purchased by each
Underwriter shall be reduced pro rata in proportion to the principal amount of
Offered Securities set forth opposite each Underwriter's name in the
Underwriting Agreement, except to the extent that the Representatives determine
that such reduction shall be otherwise and so advises the Company.
III.
The Company is advised by the Representatives that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement is entered into as in the
Representatives' judgment is advisable. The Underwriters will offer the
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus.
IV.
Payment for Underwriters' Securities shall be made by wire transfer of
immediately available funds, or such other funds as specified in the
Underwriting Agreement, at the time and place set forth in the Underwriting
Agreement, upon delivery to the Representatives for the respective accounts of
the several Underwriters of the Underwriters' Securities registered in such
names and in such denominations as the Representatives shall request in writing
not less than three full business days prior to the date of delivery. The time
and date of such payment and delivery with respect to the Underwriters'
Securities are herein referred to as the Closing Date. The Underwriters'
Securities will be made available for checking and packaging at least twenty-
four hours prior to the time for delivery.
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) The Representatives shall have received on the Closing Date a
certificate of the Chairman, Vice Chairman, President or a Vice President
of the Company, dated the Closing Date and to the effect (i) that there has
been no downgrading, nor any notice given of any potential or intended
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downgrading, or of a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any nationally recognized statistical rating organization,
(ii) that the representations and warranties of the Company contained in
Section VII are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, (iii) that the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the date of such
certificate, and (iv) that no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(b) The Representatives shall have received on the Closing Date an
opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Company, dated the Closing
Date, to the effect set forth in Exhibit A, and, if applicable, an opinion
of tax counsel to the Company, dated the Closing Date, covering such
matters as may be mutually agreed upon and set forth in the Underwriting
Agreement. In rendering such opinion to the effect set forth in Exhibit A,
such counsel may rely as to matters of New York law upon the opinion of
Xxxxx Xxxx & Xxxxxxxx being delivered pursuant to subparagraph (d).
(c) The Representatives shall have received on the Closing Date an
opinion of the General Counsel of the Company, dated the Closing Date, to
the effect set forth in Exhibit B.
(d) The Representatives shall have received on the Closing Date an
opinion of counsel to the Underwriters, dated the Closing Date, relating to
the validity of the Indenture, the Securities, the Registration Statement,
the Prospectus and other related matters as the Representatives may
reasonably request. In rendering such opinion, such counsel may rely as to
matters of Minnesota law upon the opinions of Xxxxxx & Whitney and the
General Counsel of the Company being delivered pursuant to subsections (b)
and (c), respectively.
(e) The Representatives shall have received on or prior to the date
of this Agreement and the Closing Date letters, each dated the date of
delivery thereof and in form and substance satisfactory to the
Representatives, from ___________ to the effect set forth in Exhibit C.
(f) At the Closing Date the counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale
of the Offered Securities 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 Offered Securities as herein
contemplated shall be satisfactory in form and substance to the
Underwriters and their counsel.
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(g) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not have been
any material adverse change in the condition, financial or otherwise, of
the Company and its subsidiaries considered as one enterprise, or in the
earnings, affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, other than as set forth in the Prospectus, and (ii) there
shall not have occurred any outbreak or escalation of hostilities or any
material change in financial markets or other calamity or crisis the effect
of which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the public offering or the
delivery of the Offered Securities on the terms and in the manner
contemplated by the Prospectus, and (iii) trading in securities of the
Company shall not have been suspended by the Commission or a national
securities exchange, nor shall trading generally on either the American
Stock Exchange or the New York Stock Exchange have been suspended, or
minimum or maximum prices for trading of securities generally have been
fixed, or maximum ranges for prices for securities (other than trading
limits currently in effect and other similar trading limits) have been
required, or trading otherwise materially limited, by either of said
exchanges or by order of the Commission or any other governmental
authority, nor shall a banking moratorium have been declared by either
Federal or New York authorities nor shall a banking moratorium have been
declared by the relevant authorities in the country or countries of origin
of any foreign currency or currencies in which the Securities are
denominated or payable, and (iv) the rating assigned by any nationally
recognized statistical rating organization to any debt securities of the
Company shall not have been downgraded nor shall any notice have been given
by any such nationally recognized statistical rating organization of any
intended or potential downgrading or any review for possible change that
does not indicate the direction of the possible change in such rating, and
(v) the Prospectus, at the time it was required to be delivered to a
purchaser of the Offered Securities, shall not have 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.
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VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company hereby covenants:
(a) The Company will give the Representatives notice of its intention
to file any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether by the filing of documents pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the Securities Act or otherwise. The Company will furnish the
Representatives with copies of any such amendment or supplement or other
documents, other than documents filed pursuant to the Exchange Act,
proposed to be filed a reasonable time in advance of filing, and will
furnish the Representatives with copies of documents filed pursuant to the
Exchange Act promptly upon the filing thereof;
(b) The Company will notify the Representatives immediately (i) of
the filing and 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 to be filed pursuant to
the Exchange Act which will be incorporated by reference in the Prospectus,
(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, (v) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation or threat of initiation of
any proceedings for that purpose, or (vi) of the suspension of
qualification of the Offered Securities for offering or sale in any
jurisdiction or the initiation or threat of initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent
the issuance of any stop order or suspension of qualification and, if any
stop order or suspension of qualification is issued, to obtain the lifting
thereof at the earliest possible moment;
(c) If, during the period after the date of the first public offering
of the Offered Securities, when the Prospectus is required by law to be
delivered, any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of the counsel for the Underwriters
or counsel for the Company, 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 in order to make
the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the reasonable opinion of either such counsel, at any such
time to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the Securities Act or the rules
and regulations issued by the Commission thereunder immediate notice shall
be given, and confirmed in writing, to the
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Representatives, and the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents
pursuant to the Exchange Act, the Securities Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement comply with such requirements;
(d) The Company will make generally available to its security holders
(as defined in Rule 158) as soon as practicable, but not later than 45 days
after the close of each of the first three fiscal quarters of each fiscal
year and 90 days after the close of each fiscal year, earnings statements
(in form complying with the provisions of Rule 158 under the Securities
Act) covering a twelve month period beginning not later than the first day
of the fiscal quarter next following the effective date of the Registration
Statement (as defined in Rule 158) with respect to each sale of Securities;
(e) The Company will deliver to the Representatives as many signed
and conformed copies of the registration statement (as originally filed)
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by reference
in the Prospectus) as the Representatives may reasonably request. The
Company will furnish to the Representatives as many copies of the
Prospectus (as amended or supplemented) as the Representatives shall
reasonably request so long as the Underwriters are required to deliver a
Prospectus in connection with the offering or sale of the Offered
Securities;
(f) The Company will endeavor, in cooperation with the
Representatives, to qualify the Offered Securities for offering and sale
under the applicable securities laws of such states and other jurisdictions
of the United States as the Representatives may designate, and will
maintain such qualifications in effect for as long as may be required for
the distribution of the Offered Securities; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the Securities
have been qualified as above provided;
(g) The Company, during the period when the Prospectus is required to
be delivered under the Securities Act, will file promptly all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act;
(h) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the business day following the
Closing Date, the Company will not, without the prior consent of the
Representatives, offer or sell in the United States, or enter into any
agreement to sell in the United States, any debt securities of the Company
with terms substantially similar to the Securities.
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VII.
The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The Registration Statement has been filed with the Commission in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to the Registration Statement, but including all
documents incorporated by reference in the Basic Prospectus, to the
Representatives for each of the other Underwriters and the Registration
Statement in such form has been declared effective by the Commission and no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission;
(b) The documents incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied or will
comply in all material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder, and when read
together and with the other information in the Prospectus, at the time the
Registration Statement became, and any amendments thereto become,
effective, and as of the Closing Date, did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were or are made, not
misleading;
(c) The Registration Statement and the Prospectus, at the time the
Registration Statement and each part thereof became or hereafter become
effective, complied and any amendments or supplements thereto will comply,
in all material respects with the requirements of the Securities Act and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the rules and regulations of the Commission thereunder. The Registration
Statement at the time the Registration Statement and each part thereof
became effective did not and as of the Closing Date will not, contain an
untrue statement of any material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus, at the time the Registration Statement
became effective did not, and as of the Closing Date will not, contain an
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 this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information relating to an Underwriter furnished in writing to the Company
by such Underwriter of Offered Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Offered Securities or to that part of the Registration Statement
constituting the Statement of Eligibility and Qualification under the Trust
Indenture Act (Form T-1) of the Trustee;
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(d) 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 Registration Statement; and the Company
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which its ownership or lease of substantial
properties or the conduct of its business requires such qualification;
(e) The authorized, issued and outstanding capital stock of the Company is
as set forth in the Registration Statement, and the shares of issued and
outstanding Common Stock set forth thereunder have been duly authorized and
validly issued and are fully paid and non-assessable;
(f) Neither the Company nor any of its subsidiaries is in violation of its
charter 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 any of them or their properties may be bound; and
the execution and delivery of this Agreement, the Offered Securities, the
Indenture, each applicable Delayed Delivery Contract (as defined in Section II)
and the consummation of the transactions contemplated herein and therein have
been duly authorized by all necessary corporate action and will not conflict
with or constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
or any of its subsidiaries is a party or by which it or any of them may be bound
or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any law, administrative
regulation or administrative or court order or decree; and no consent, approval,
authorization, order or decree of any court or governmental agency or body is
required for the consummation by the Company of the transactions contemplated by
this Agreement, except such as may be required under the Securities Act, the
Trust Indenture Act or the rules and regulations of the Commission thereunder,
all of which have been obtained, or such as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Offered Securities by the Underwriters;
(g) The Company and its subsidiaries own or possess or have obtained all
material governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to operate
their respective properties and to carry on their respective businesses as
presently conducted;
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(h) The Company and its subsidiaries own or possess adequate trademarks,
service marks and trade names necessary to conduct the business now operated by
them, and neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others with
respect to any trademarks, service marks or trade names which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
materially adversely affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries considered as one
enterprise;
(i) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened against or affecting, the Company or any of
its subsidiaries, which might result in any material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the business prospects of the Company and
its subsidiaries considered as one enterprise, or might materially and adversely
affect the properties or assets thereof or might materially and adversely affect
the consummation of this Agreement and the consummation of the transactions
contemplated hereby; and there are no material contracts or documents of the
Company or any of its subsidiaries which are required to be filed as exhibits to
the Registration Statement by the Securities Act or by the rules and regulations
of the Commission thereunder which have not been so filed;
(j) The Offered Securities have been duly authorized for issuance and sale
pursuant to this Agreement, and, when issued, authenticated and delivered
pursuant to this Agreement against payment of the consideration therefor
specified herein and, in the case of any Contract Securities, pursuant to
Delayed Delivery Contracts with respect to such Contract Securities, such
Offered Securities will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, except as (i) enforceability
thereof may be limited by bankruptcy, insolvency, or other laws relating to or
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability, and will be entitled to the benefits provided by the
Indenture; and the Offered Securities and the Indenture conform in all material
respects to all statements relating thereto in the Prospectus;
(k) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent;
(l) The Indenture has been duly qualified under the Trust Indenture Act and
has been duly authorized, executed and delivered by the Company and is the valid
and binding agreement of the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors'
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rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(m) In the event any of the Offered Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has been
duly authorized by the Company and, when executed and delivered by the Company
and the purchaser named therein, will constitute a valid and legally binding
agreement of the Company enforceable in accordance with its terms, except as (i)
enforceability thereof may be limited by bankruptcy, insolvency, or other laws
relating to or affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable principles of general
applicability; and any Delayed Delivery Contracts will conform to the
description thereof in the Prospectus;
(n) The accountants who certified the financial statements included or
incorporated by reference in the Prospectus are independent public accountants
as required by the Securities Act and the rules and regulations issued by the
Commission thereunder;
(o) The financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Prospectus present
fairly the financial position of the Company and its consolidated subsidiaries
as at the dates indicated and the results of their operations for the periods
specified; except as stated therein, said financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis; and the pro forma financial information, and the related
notes thereto, included or incorporated by reference to the Prospectus has been
prepared in accordance with the applicable requirements of the Securities Act
and the Exchange Act and the rules and regulations issued by the Commission
thereunder;
(p) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein or
contemplated thereby, (A) there has been no material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise or in the earnings, affairs or business prospects
of the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and (B) there have been no material
transactions entered into by the Company, or any of its subsidiaries other than
those in the ordinary course of business; and
(q) This Agreement has been duly authorized, executed and delivered by the
Company.
VIII.
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(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter (each an
"Indemnified Person") within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever 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 any related preliminary prospectus
or preliminary prospectus supplement) 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 was made in reliance
upon and in conformity with written information relating to such
Indemnified Person furnished to the Company by the Representatives
expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto or any related
preliminary prospectus or preliminary prospectus supplement);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever 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, or any such alleged untrue statement or
omission (except as made in reliance upon and in conformity with
information relating to such Indemnified Person furnished by the
Representatives as aforesaid) if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by such Indemnified Person), as incurred,
reasonably incurred in investigating, preparing 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, or any such alleged untrue statement or
omission (except as made in reliance upon and in conformity with
information relating to such Indemnified Person furnished by the
Representatives as aforesaid), to the extent that any such expense is not
paid under (i) or (ii) above.
(b) Each Underwriter will indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act against any and all
loss,
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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 or any related preliminary prospectus or preliminary
prospectus supplement) in reliance upon and in conformity with written
information relating to such Underwriter furnished to the Company by the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto or
any related preliminary prospectus or preliminary prospectus supplement).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of 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 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 any 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;
provided, however, that when more than one of the Underwriters is an indemnified
party each such Underwriter shall be entitled to separate counsel (in addition
to any local counsel) in each such jurisdiction to the extent such Underwriter
may have interests conflicting with those of the other Underwriter or
Underwriters because of the participation of one Underwriter in a transaction
hereunder in which the other Underwriter or Underwriters did not participate. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section VIII
is for any reason held to be unavailable to the Underwriters in accordance with
its terms, the Company and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and the Underwriters with
respect to Securities sold to the Underwriters in such proportions as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in such proportion represented by the percentage that the total commissions and
underwriting discounts received by the Underwriters to the date of such
liability bears to the total sales price (before deducting expenses) received by
the Company from the sale of Securities made to the Underwriters to the date of
such liability, and the Company is responsible for the balance. If, however,
the allocation provided by the immediately preceding sentence
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is not permitted by applicable law or if the Underwriters failed to give the
notice required under (c), then the Company and the Underwriters shall
contribute to such aggregate losses, liabilities, claims, damages and expenses
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and the Underwriters in connection
with the statements or omissions which resulted in such liabilities, claims,
damages and expenses, as well as any other relevant equitable considerations.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Representatives and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this paragraph were
determined pro rata (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in this paragraph. Notwithstanding
the provisions of this paragraph, the Underwriters shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities referred to in the second sentence of this paragraph that were
offered and sold to the public through the Underwriters exceeds the amount of
any damages that the Underwriters have otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled under this paragraph to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter, 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 Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Company.
IX.
The indemnity and contribution agreements contained in Section VIII
hereof and the representations and warranties of the Company in this Agreement
or in any certificate submitted pursuant hereto shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by any Underwriter or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the Company or the
directors or officers or any person controlling the Company and (iii) acceptance
of any payment for any of the Offered Securities.
X.
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If any Underwriter shall default in its obligation to purchase the
Offered Securities which it has agreed to purchase hereunder, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Offered Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Offered Securities then
the Company shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to the
Representatives to purchase such Offered Securities on such terms. In the event
that, within the respective prescribed period, the Representatives notify the
Company that they have so arranged for the purchase of such Offered Securities
or the Company notifies the Representatives that it has so arranged for the
purchase of such Offered Securities the Representatives or the Company shall
have the right to postpone the Closing Date for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the
reasonable opinion of the Representatives may thereby be made necessary. The
term "Underwriters" as used in this Agreement shall include any person
substituted under this Section X with like effect as if such person had
originally been a party to this Agreement with respect to such Offered
Securities.
If, after giving effect to any arrangements for the purchase of the
Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in the immediately preceding
paragraph hereof, the aggregate principal amount of such Offered Securities
which remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of all the Offered Securities, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the Offered
Securities which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Offered Securities which such
Underwriter agreed to purchase hereunder) of the Offered Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
If, after giving effect to any arrangements for the purchase of the
Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in the first paragraph of this
Section X, the aggregate principal amount of Offered Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Offered Securities or if the Company shall not exercise the right described in
the immediately preceding paragraph to require non-defaulting Underwriters to
purchase Offered Securities of a defaulting Underwriter or Underwriters, then
this Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriters or the company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section XI hereof and the
indemnity and
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contribution agreements in Section VIII hereof; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
XI.
The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Securities Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the Underwriters and
to dealers; (ii) the cost of printing this Agreement, the Indenture and any Blue
Sky and legal investment memoranda; (iii) all expenses in connection with the
qualification of the Offered Securities for offering and sale under state
securities laws as provided in Section VI(f) hereof, including the fees and
disbursements of counsel in connection with such qualification and in connection
with the preparation of any Blue Sky memorandum or any Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) the cost of preparing the Securities; (vi) the fees
and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities; and (vii)) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section X. It is understood, however, that, except as
provided in this Section XI and Sections VIII and XII hereof, the Underwriters
will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Offered Securities by them and
any advertising expenses connected with any offers they may make.
XII.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters, or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with the Securities.
-15-
XIII.
In all dealings hereunder, the Representatives of the Underwriters of
Offered Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the representatives, if any, as may be
designated for such purpose hereunder.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the address of the principal offices of the Representatives
and if to the Company shall be sufficient in all respects if delivered or sent
by registered mail to the address of the Company set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section VIII(c) hereof shall be delivered or sent by
registered mail to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the representatives upon request.
XIV.
This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Section VIII
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Offered Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
XV.
Time shall be of the essence of this Agreement.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement and the rights and obligations of the parties created
hereby shall be governed by the laws of the State of New York.
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Schedule I
DELAYED DELIVERY CONTRACT
, 19_______
Dear Sirs:
The undersigned hereby agrees to purchase from Green Tree Financial
Corporation, a Delaware corporation (the "Company") and the Company agrees to
sell to the undersigned [$________________ principal amount of the Company's
title of issue] (the "Securities")], offered by the Prospectus dated
____________, 19_______ and Prospectus Supplement dated ____________, 19____,
receipt of copies of which are hereby acknowledged, [at a purchase price of
________% of the principal amount thereof plus accrued interest from
____________, if any] for an [aggregate] Purchase Price of $________] and on the
further terms and conditions set forth in this contract. The undersigned does
not contemplate selling Securities prior to making payment therefor.
[The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery dates set forth below:
Delivery Principal Plus Accrued Interest,
Date Amount If any, From:
-------- --------- ----------------------
........ $........ ............
........ $........ ............
........ $........ ............]
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed
to purchase on each Delivery Date shall be made to the Company or its order by
[certified or official bank check drawn on a bank approved by the Company and in
New York Clearing House (next day) funds] at the office of ________________, New
York, N.Y., at 10:00 A.M. (New York time) on the Delivery Date, upon delivery to
the undersigned of the Securities to be purchased by the undersigned on the
Delivery Date, in definitive fully registered form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for the Securities on the Delivery Date shall be subject to the
conditions that (i) the investment in the Securities to be made by the
undersigned shall not at the time of delivery be prohibited under the laws of
any jurisdiction in the United States to which the undersigned is subject and
(ii) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above, of such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied by
a copy of the opinions of counsel for the Company delivered to the Underwriters
in connection therewith.
Failure to take delivery of and make payment for Securities
by any purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and mail or deliver
one of the counterparts hereof to the undersigned at its address set forth
below. This will become a binding contract, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
-2-
This contract shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
_________________________________
(Purchaser)
By_______________________________
_________________________________
_________________________________
(Title)
_________________________________
(Address)
Accepted:
Green Tree Financial Corporation
By________________________________
-3-
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the
representative of the Purchaser with whom details of delivery on the Delivery
Date may be discussed is as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
______________________ _____________________ ________________
-4-
Exhibit A
Opinion of Counsel to the Company
---------------------------------
The opinion or opinions of Xxxxxx & Xxxxxxx PLLP, counsel to the
Company, to be delivered pursuant to Section V(b) of the Agreement, shall be to
the following effect (all terms used herein which are defined in the
Underwriting Agreement have the meanings set forth therein):
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement.
(iii) The Underwriting Agreement and any applicable Delayed Delivery
Contract have been duly authorized, executed and delivered by the Company.
(iv) The execution and delivery of the Underwriting Agreement, any
applicable Delayed Delivery Contract and the Indenture and the consummation
of the transactions contemplated herein and therein will not (a) conflict
with or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any subsidiary
pursuant to any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject and
that is material to the Company and its subsidiaries, taken as a whole, or
(b) result in a violation of any law or administrative regulation or
administrative or court decree of any court or governmental agency,
authority or body or any arbitrator having jurisdiction over the Company
known to such counsel and applicable to the Company nor will such action
result in any violation of the provisions of the charter or by-laws of the
Company.
(v) The Indenture has been duly and validly authorized, executed and
delivered by the Company and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee) constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms,
except as (i) enforceability thereof may be limited by ruptcy, insolvency,
or other laws relating to or affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by principles of general applicability.
(vi) The Offered Securities have been duly and validly authorized by
all necessary corporate action and the Offered Securities other than any
Contract Securities constitute, and any Contract Securities, when executed
and
authenticated, issued and delivered in the manner provided in the Indenture
and sold pursuant to Delayed Delivery Contracts, will constitute valid and
binding obligations of the Company, enforceable in accordance with their
terms, except as (i) enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability,
and each holder of Offered Securities is entitled to the benefits of the
Indenture and each holder of Contract Securities, when executed,
authenticated, issued and delivered in the manner provided in the Indenture
and sold pursuant to Delayed Delivery Contracts, will be entitled to the
benefits of the Indenture.
(vii) The statements in the Basic Prospectus under the captions
"Description of Debt Securities" and "Plan of Distribution" and similar
captions in the applicable prospectus supplement insofar as they purport to
summarize certain provisions of documents specifically referred to therein,
are accurate summaries of such provisions.
(viii) The Indenture is qualified under the Trust Indenture Act.
(ix) The Registration Statement is effective under the Securities
Act and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under the
Securities Act or proceedings therefor initiated or threatened by the
Commission.
(x) At the time the Registration Statement became effective, and at
the date hereof, the Registration Statement and the Prospectus and each
document incorporated by reference therein (other than the financial
statements, schedules and other financial data included therein and the
Statement of Eligibility and Qualification of the Trustee on Form T-1 filed
as an exhibit thereto, as to which no opinion need be rendered) complied as
to form in all material respects with the requirements of the Securities
Act, the Exchange Act, the Trust Indenture Act and the rules and
regulations under each of those Acts.
(xi) No consent, approval, authorization, or order of any court or
governmental authority or agency is required in connection with the sale of
the Offered Securities, except such as may be required under the Securities
Act or the rules and regulations thereunder, all of which have been
obtained, or such as may be required state securities laws.
In addition, Xxxxxx & Xxxxxxx LLP will state that it has participated
in the preparation of the Registration Statement and the Prospectus and that
nothing has come to such counsel's attention that causes such counsel reason to
believe that (other than the financial statements, schedules and other financial
data included therein, as to which no statement need be rendered) the
Registration Statement and the Prospectus, at the time the Registration
Statement became effective, or if an
-2-
amendment to the Registration Statement or to any document incorporated by
reference therein has been filed by the Company with the Commission subsequent
to the effectiveness of the Registration Statement, then at the time of the most
recent such filing, and at the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as amended or supplemented at the Closing
Date, 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.
-3-
Exhibit B
Opinion of General Counsel of the Company
-----------------------------------------
The opinion of the General Counsel of the Company, to be delivered
pursuant to Section V(c) of the Agreement, shall be to the following effect (all
terms used herein which are defined in the Agreement have the meanings set forth
therein):
(i) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which its
ownership or lease of substantial properties or the conduct of its business
requires such qualification and where the failure so to qualify would have
a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(ii) There are no legal or governmental proceedings pending or, to
the best of such counsel's knowledge, threatened which are required to be
disclosed in the Registration Statement, other than those disclosed
therein, and all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or of which any of their property is
the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, are,
considered individually or in the aggregate, not material.
(iii) To the best of such counsel's knowledge and information, there
are no contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto and the descriptions thereof or references thereto are
correct.
Exhibit C
Letter from
-----------------
The Letter of ___________ to be delivered pursuant to Section V(e)
of the Agreement shall be to the following effect (all terms used herein which
are defined in the Agreement have the meanings set forth therein):
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the Securities Act and
the applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements and
schedules audited by them and included in the Prospectus comply as to form
in all material respects with the applicable accounting requirements of the
Securities Act, the Exchange Act, as applicable, and the published rules
and regulations thereunder.
(iii) They have made a review of any unaudited consolidated financial
statements included in the Prospectus in accordance with standards
established by the American Institute of Certified Public Accountants, as
indicated in their report or reports attached to such letter.
(iv) On the basis of the review referred to in (iii) and a reading of
the latest available interim financial statements of the Company and its
consolidated subsidiaries, inspection of the minute books of the Company
and such subsidiaries since the date of the balance sheet included in the
Company's most recent audited financial statements, inquiries of officials
of the Company responsible for financial and accounting matters and other
procedures, nothing came to their attention that caused them to believe
that the unaudited financial statements included in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act, the Exchange Act, and the published
rules and regulations thereunder or that the unaudited financial statements
are not presented in conformity with generally accepted accounting
principles applied on a basis consistent in all material respects with that
of the audited financial statements included in the Prospectus.
(v) They have performed specified procedures, not constituting an
audit, including a reading of the latest available interim financial
statements of the Company and its consolidated subsidiaries, a reading of
the minute books of the Company and such subsidiaries since the date of the
balance sheet included in the Company's most recent audited financial
statements, inquiries of officials of the Company responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, and on the basis of such inquiries and procedures
nothing came to their attention that caused them to believe that:
(A) at the date of the latest available consolidated balance sheet
read by such accountants, or at a subsequent specified date not more than
five days prior to the date of delivery of such letter, there was any
change in the capital stock of the Company and its consolidated
subsidiaries, any increase in long-term debt of the Company and its
consolidated subsidiaries or any decreases in consolidated common
shareholders' equity of the Company and its consolidated subsidiaries, in
each case as compared with amounts shown in the most recent consolidated
balance sheet included in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; or
(B) for the period from the date of the latest income statement
included in the Prospectus to the closing date of the latest available
income statement read by such accountants, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated net income, except for decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter.
(vi) They have compared certain agreed dollar amounts (or percentages
derived from such dollar amounts) and other financial information included in
the Prospectus (in each case to the extent that such dollar amounts, percentages
and other financial information are derived from the general accounting records
of the Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a reading of
such general accounting records and other procedures specified in such letter,
and have found such dollar amounts, percentages and other financial information
to be in agreement with such results, except as otherwise specified in such
letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this Exhibit C.
-2-
