Exhibit 1.1
GREEN TREE LEASE FINANCE II, INC.
GREEN TREE LEASE FINANCE 1998-1, LLC
AND GREEN TREE FINANCIAL CORPORATION
Lease-Backed Notes, Class A-1, Class A-2
Class A-3, Class A-4, Class B and Class C
UNDERWRITING AGREEMENT
December __, 1998
First Union Capital Markets, a division of Wheat First Securities, Inc.
Xxxxxx Brothers Inc.
NationsBanc Xxxxxxxxxx Securities LLC
c/o FIRST UNION CAPITAL MARKETS CORP.
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx - XX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
Green Tree Lease Finance 1998-1, LLC (the "Issuer") is a Delaware limited
liability company. Green Tree Lease Finance II, Inc. (the "SPC"), a wholly owned
subsidiary of Green Tree Vendor Services Corporation ("Vendor Services"), is the
sole member of the Issuer. Vendor Services is a wholly owned subsidiary of Green
Tree Financial Corporation ("Green Tree"). The Issuer's Lease-Backed Notes
identified in Schedule I hereto (the "Notes") will be issued pursuant to an
Indenture, dated as of December 1, 1998 (the "Indenture"), between the Issuer
and U.S. Bank Trust National Association (the "Trustee"). The Notes will be
secured by a pledge by the Issuer of a pool of equipment lease contracts,
installment sale contracts, promissory notes, loan and security agreements and
other similar types of receivables (the "Leases") and certain other property,
including certain rights to the proceeds of disposition of the equipment
underlying the Leases (the "Equipment") to be held in trust pursuant to the
Indenture. The Leases will be serviced by Vendor Services pursuant to a
Contribution and Servicing Agreement, dated as of December 1, 1998 (the
"Contribution and Servicing Agreement"), among the Issuer, Vendor Services and
the SPC. The Leases will have been contributed by Vendor Services, together with
Vendor Services' rights in the Equipment, to the SPC pursuant to a Transfer
Agreement, dated as of December 1, 1998 (the "Transfer Agreement"), between
Vendor Services and the SPC and the SPC will in turn contribute the Leases,
together with certain rights to the proceeds of disposition of the Equipment, to
the Issuer pursuant to the Contribution and Servicing Agreement. The forms of
the Indenture, Transfer Agreement and Contribution and
Servicing Agreement (collectively, the "Transaction Agreements") have been filed
as exhibits to the Registration Statement (hereinafter defined).
The Notes are more fully described in the Registration Statement (defined
below) which the Issuer and the SPC as the registrants thereunder (together, the
"Registrants") have furnished to you. The Notes identified in Schedule I hereto
will be sold in a public offering through the underwriters listed in Schedule II
hereto, one or more of which may act as representative of such underwriters (any
underwriter through which Notes are sold shall be referred to herein as an
"Underwriter" or, collectively, all such Underwriters may be referred to as
"you" or the "Underwriters") and First Union Capital Markets, a division of
Wheat First Securities, Inc., will act as representative of the Underwriters and
may be referred to herein as the "Representative". Capitalized terms used but
not defined herein shall have the meanings given to them in the Registration
Statement.
The offering of the Notes will be governed by this Underwriting Agreement
which forms one agreement between the Registrants and Green Tree, on one hand,
and the Underwriters, on the other, and references herein to "this Agreement"
shall, unless the context provides otherwise, refer to this Underwriting
Agreement.
SECTION 1. Representations and Warranties. The Registrants and Green Tree
represent and warrant to the Underwriters as of the date hereof as follows:
(a) The Registrants have prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Securities Act"), a
registration statement on Form S-1 (registration number 333-[_______]),
including a form of prospectus, relating to the Notes. The registration
statement, and any post-effective amendment thereto, each in the form
heretofore delivered to you and, excluding exhibits thereto, have been
declared effective by the Commission. As used in this Agreement, "Effective
Time" means the date and the time as of which such registration statement,
or the most recent post-effective amendment thereto, if any, was declared
effective by the Commission and "Effective Date" means the date of the
Effective Time. The Registrants have furnished to you, for use by the
Underwriters, copies of one or more preliminary prospectuses (each, a
"Preliminary Prospectus"), relating to the Notes. Except where the context
otherwise requires, the registration statement, as amended at the Effective
Time, including all documents filed as a part thereof, and including any
information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 424(b) under the Securities Act and deemed to
be part of the registration statement as of the Effective Time pursuant to
Rule 430A under the Securities Act, is herein called the "Registration
Statement", and the prospectus, in the form filed by the Registrants with
the Commission pursuant to Rule 424(b) under the Securities Act or, if no
such filing is required, the form of final prospectus included in the
Registration Statement at the time it became effective, is hereinafter
called the "Prospectus".
(b) The Registration Statement relating to the Notes, has been filed
with the Commission and such Registration Statement has become effective.
No stop order
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suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been instituted or, to the knowledge
of the Registrants or Green Tree, threatened by the Commission. No order
preventing or suspending the use of any Preliminary Prospectus has been
issued by the Commission, and each Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the requirements of
the Securities Act, and the rules and regulations of the Commission
thereunder, and did 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 made (and taking into account Rule 430A of the Securities Act,
which permits certain information to be omitted from a preliminary
prospectus), not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon or conformity with the Underwriters' Information (as defined
in Section 10(d) herein).
(c) The Registration Statement conforms, and any amendments or
supplements thereto and the Prospectus will conform, in all material
respects to the requirements of the Securities Act and the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and do not and will
not, as of the Effective Date and as of the Closing Date (as defined
herein), 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 not misleading; provided, however that this
representation and warranty shall not apply to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) of the Trustee under the Trust Indenture Act
or (ii) any Underwriters' Information (as defined in Section 10(d) herein)
contained therein. The Indenture conforms in all respects to the
requirements of the Trust Indenture Act and the rules and regulations of
the Commission thereunder.
(d) The Issuer has been duly organized and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware. The SPC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Minnesota. Each
of Vendor Services and Green Tree has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware. Each Registrant, Vendor Services and Green Tree possess the 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 Indenture, the Contribution and
Servicing Agreement and the Transfer Agreement, as applicable; and each
Registrant and Green Tree are duly qualified as a foreign entity to
transact business and are in good standing in each jurisdiction in which
the ownership or lease of its properties or the conduct of its business
requires such qualification.
(e) None of the Registrants, Vendor Services or Green Tree are in
violation of its limited liability company agreement or articles of
incorporation or by-laws, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
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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
such Registrant, Vendor Services or Green Tree, as applicable, or which
might materially and adversely affect the properties or assets thereof.
(f) The execution, delivery and performance by each Registrant, Vendor
Services and Green Tree of this Agreement and the Transaction Agreements,
as applicable, are within its corporate or limited liability company power,
as applicable, and have been duly authorized by all necessary corporate or
limited liability company action on the part of such Registrant, Vendor
Services or Green Tree.
(g) The execution, delivery and performance of this Agreement, the
Transaction Agreements to which the Registrants, Vendor Services or Green
Tree, as the case may be, is a party, the issuance and sale of the Notes
and the consummation of the transactions contemplated hereby and thereby
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which any of the Registrants, Vendor Services or Green Tree
is a party or by which any of the Registrants, Vendor Services or Green
Tree is bound or to which any of the property or assets of any of the
Registrants, Vendor Services or Green Tree is subject, nor will such
actions result in any violation of the provisions of the charter, by-laws
or limited liability company agreement, as applicable, of any of the
Registrants, Vendor Services or Green Tree or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over any of the Registrants, Vendor Services or Green Tree or
any of their properties or assets; and except for the registration of the
Notes under the Securities Act, the qualification of the Indenture under
the Trust Indenture Act, such consents, approvals, authorizations,
registrations or qualifications as may be required under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act") and applicable
state securities laws in connection with the purchase and distribution of
the Notes by the Underwriters and the filing of any financing statements
required to perfect the Issuer's interest in the Trust Assets, no consent,
approval, authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement or the Transaction Agreements,
the issuance and sale of the Notes and the consummation of the transactions
contemplated hereby and thereby.
(h) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change,
or any development involving a prospective change, in or affecting the
Registrants, Vendor Services or Green Tree (other than as may be
contemplated in the Registration Statement) which would be expected to have
a material adverse effect on either (i) the ability of such person to
consummate the transactions contemplated by, or to perform its respective
obligations under, this Agreement or the Transaction Agreements, as
applicable, or (ii) the Leases or the Trust Assets.
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(i) Each of the Indenture, the Transfer Agreement and the Contribution
and Servicing Agreement when executed and delivered as contemplated hereby
and thereby will have been duly authorized, executed and delivered by each
of the Registrants or Vendor Services, as the case may be, purporting to
execute the same, and will constitute when so executed and delivered, a
legal, valid and binding instrument enforceable against each such
Registrant or Vendor Services, as applicable, 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).
(j) As of the Closing Date, the Notes will have been duly and validly
authorized by the Issuer, and, when executed and authenticated as specified
in the Indenture, will be validly issued and outstanding and will be
entitled to the benefits of the Indenture, and will be binding obligations
of the Issuer to the extent provided in the Indenture, 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).
(k) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act and which have not been so described or
filed.
(l) Any taxes, fees and other governmental charges on the part of the
Registrants or Vendor Services that are assessed and due in connection with
the execution, delivery and issuance of this Agreement or the Transaction
Agreements shall have been paid or will be paid at or prior to the Closing
Date to the extent then due.
(m) There are no legal or governmental proceedings pending to which
any of the Registrants, Vendor Services or Green Tree is a party or of
which any property or assets of any of the Registrants, Vendor Services or
Green Tree is the subject which, individually or in the aggregate, would
(i) be reasonably likely to, if determined adversely to any of the
Registrants, Vendor Services or Green Tree, have a material adverse effect
on the condition (financial or otherwise), results of operations, business
or prospects of any of the Registrants, Vendor Services or Green Tree, as
the case may be, or taken as a whole; and to the best of each Registrant's
or Green Tree's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others, that (i)
assert the invalidity of this Agreement or the Transaction Agreements, (ii)
seek to prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Agreement or the Transaction Agreements,
(iii) be reasonably likely to, if determined adversely to any of the
Registrants, Vendor Services or Green Tree, materially and adversely affect
the performance by the Registrants, Vendor Services or Green Tree, as the
case may be, of their respective obligations under, or the validity or
enforceability of, this Agreement or the Transaction Agreements, as
applicable, or (iv) seek to affect adversely the federal income tax
attributes of the Notes described in the Prospectus.
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(n) This Agreement has been duly authorized, executed and delivered by
each of the Registrants and Green Tree.
(o) Each of the Registrants, Vendor Serivces and Green Tree possess
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 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 its
business, operations, financial condition or earnings.
(p) As of the Closing Date, the Leases and the other Trust Assets will
have been duly and validly granted to the Trustee in accordance with the
Indenture; and when such assignment is effected, a duly and validly
perfected transfer to the Trustee of all such Trust Assets subject to no
prior lien, mortgage, security interest, pledge, charge or other
encumbrance created by Vendor Services or any of the Registrants, will have
occurred.
(q) The representations and warranties of the SPC in Section __ of the
Contribution and Servicing Agreement and of Vendor Services in Section __
of the Transfer Agreement will be true and correct as of the Closing Date.
(r) Neither the Issuer nor the Trust Assets created by the Indenture
is required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
(s) The Notes, the Indenture, the Contribution and Servicing
Agreement, and the Transfer Agreement conform in all material respects to
the descriptions thereof contained in the Prospectus.
SECTION 2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the covenants, representations and warranties herein set forth,
the Issuer agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Issuer, the principal amount of
Notes set forth opposite such Underwriter's name in Schedule II hereto. The
purchase price for the Notes shall be as set forth in Schedule I hereto.
SECTION 3. Delivery and Payment. Payment for the Notes shall be made to the
Issuer or to its order by wire transfer of same day funds at the office of
Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, at
10:00 a.m., Minneapolis time, on the Closing Date, or at such other time on the
same or such other date as the Representative and the Issuer may agree upon. The
time and date of such payment for the Notes as specified in Schedule I hereto
are referred to herein as the "Closing Date." As used herein, the term "Business
Day" means any day other than a day on which banks are permitted or required to
be closed in New York City or Minneapolis, Minnesota.
Payment for the Notes shall be made against delivery to the Representative
for the respective accounts of the several Underwriters of the Notes registered
in the name of Cede & Co. as nominee of The Depository Trust Company and in such
denominations as the
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Representative shall request in writing not later than two full Business Days
prior to the Closing Date. The Issuer shall make the Notes available for
inspection by the Representative in Minneapolis, Minnesota not later than one
full Business Day prior to the Closing Date.
SECTION 4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Notes for sale to the public, which may
include selected dealers, as set forth in the Prospectus.
SECTION 5. Covenants of the Registrants and Green Tree. Each of the
Registrants and Green Tree, jointly and severally, covenants with each of the
Underwriters, as follows:
(a) The Registrants will prepare the Prospectus in a form approved by
the Representative and file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement
or, if applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Securities Act.
(b) During the period that a prospectus relating to the Notes is
required to be delivered under the Securities Act in connection with sales
of such Notes (such period being hereinafter sometimes referred to as the
"prospectus delivery period"), before filing any amendment or supplement to
the Registration Statement or the Prospectus, the Registrants will furnish
to the Representative a copy of the proposed amendment or supplement for
review and will not file any such proposed amendment or supplement to which
the Representative reasonably objects.
(c) During the prospectus delivery period, the Registrants will advise
the Representative promptly after it receives notice thereof, (i) when any
amendment to the Registration Statement shall have become effective, (ii)
of any request by the Commission for any amendment or supplement to the
Registration Statement or the Prospectus or for any additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose, (iv) of the issuance by the
Commission of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or the initiation or threatening of any
proceedings for that purpose and (v) of any notification with respect to
any suspension of the qualification of the Notes for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and will use its best efforts to prevent the issuance of any such
stop order or suspension and, if any is issued, will promptly use its best
efforts to obtain the withdrawal thereof.
(d) If, at any time during the prospectus delivery period, any event
occurs as a result of which the Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the
Securities Act, the Registrants promptly will prepare and file with the
Commission, an
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amendment or a supplement which will correct such statement or omission or
effect such compliance.
(e) The Registrants will endeavor to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such
qualification in effect so long as reasonably required for distribution of
the Notes; provided, however, that neither Registrant shall be obligated to
qualify to do business in any jurisdiction in which it is not currently so
qualified; and provided, further, that neither Registrant shall be required
to file a general consent to service of process in any jurisdiction.
(f) The Registrants will furnish to the Representative, without
charge, two copies of the Registration Statement (including exhibits
thereto), one of which will be signed, and to each Underwriter conformed
copies of the Registration Statement (without exhibits thereto) and, during
the prospectus delivery period, as many copies of any Preliminary
Prospectus and the Prospectus and any supplement thereto as the
Underwriters may reasonably request.
(g) For a period from the date of this Agreement until the retirement
of the Notes, or until such time as the Underwriters shall cease to
maintain a secondary market in the Notes, whichever first occurs, the
Registrants will deliver to the Representative (i) the annual statements of
compliance under the Indenture, (ii) the annual independent certified
public accountants' reports furnished to the Trustee, (iii) all documents
required to be distributed to the Noteholders of the Trust and (iv) all
documents filed with the Commission pursuant to the Exchange Act or any
order of the Commission thereunder, in each case as provided to the Trustee
or filed with the Commission, as soon as such statements and reports are
furnished to the Trustee or filed or as soon thereafter as practicable.
(h) To the extent, if any, that the rating provided with respect to
the Notes by the rating agency or agencies that initially rate the Notes is
conditional upon the furnishing of documents or the taking of any other
actions by the Registrants, the Registrants shall furnish such documents
and take any such other actions.
(i) The Issuer will use the net proceeds received by it from the
issuance of the Notes in the manner specified in the Prospectus under the
caption "Use of Proceeds".
(j) The Registrants will cause the Trust to make generally available
to Noteholders and to the Representative as soon as practicable an earnings
statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Trust occurring after the Effective Date of the
Registration Statement, which shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 of the Commission promulgated
thereunder.
(k) The Registrants will file with the Commission within fifteen days
of the issuance of the Notes a current report on Form 8-K setting forth
specific information
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concerning the Notes and the Leases to the extent that such information is
not set forth in the Prospectus.
SECTION 6. Conditions to the Obligations of the Underwriters. The
respective obligations of the several Underwriters to purchase Notes pursuant to
this Agreement are subject to the accuracy of the representations and warranties
on the part of the Registrants and Green Tree herein contained, to the accuracy
of the statements of the officers of each of the Registrants, Vendor Services
and Green Tree made pursuant hereto, to the performance by each of the
Registrants and Green Tree of all of its obligations hereunder and to the
following further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424 in the manner and within the applicable time period prescribed
for such filing by the rules and regulations of the Commission under the
Securities Act and in accordance with Section 5(a) of this Agreement; and,
prior to the Closing Date, no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and
no proceedings for such purpose shall have been initiated or threatened by
the Commission; and all requests for additional information from the
Commission with respect to the Registration Statement shall have been
complied with to the reasonable satisfaction of the Representative.
(b) (i) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Transaction
Agreements, the Notes, the Registration Statement, the Preliminary
Prospectus and the Prospectus, and all other legal matters relating to such
agreements and the transactions contemplated hereby and thereby shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Registrants shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters and (ii) prior to or contemporaneously with the
purchase of Notes hereunder, all transactions contemplated to be
consummated under such Transaction Documents on the Closing Date shall have
been so consummated to the reasonable satisfaction of the Underwriters.
(c) At the Closing Date you shall have received:
(1) The favorable opinion, dated as of the Closing Date, of
Xxxxxx & Whitney L.L.P., counsel for the Registrants, in form and
substance satisfactory to you, to the effect that:
(i) The Issuer has been duly organized and is validly
existing as a limited liability company in good standing under
the laws of the State of Delaware; the SPC has been duly
organized and is validly existing as a corporation in good
standing under the laws of the State of Minnesota, and that each
of Green Tree and Vendor Services has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of the State of Delaware.
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(ii) The execution and delivery by the Registrants, Vendor
Services and Green Tree, as applicable, of this Agreement and the
Transaction Agreements and the signing of the Registration
Statement by the Registrants are within the corporate or limited
liability company power of the Registrants and have been duly
authorized by all necessary corporate or limited liability
company action on the part of the Registrants.
(iii) This Agreement has been duly authorized, executed and
delivered by the Registrants and Green Tree, and each is a valid
and binding obligation of the Registrants and Green Tree
enforceable against the Registrants and Green Tree in accordance
with its terms, except that (A) such enforcement may be subject
to applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' or secured parties' rights generally, (B) such
enforcement may be limited by general principles of equity,
including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing, and other similar
doctrines affecting the enforceability of agreements generally
(regardless of whether enforcement is sought in a proceeding in
equity or at law), and (C) the enforceability as to rights to
indemnity thereunder is subject to the effect of federal and
state securities laws and public policy relating thereto.
(iv) The Transaction Agreements and the Registration
Statement have been duly authorized, executed and delivered by
each of Vendor Services, if applicable, and the Registrants
purporting to execute the same, and are the valid and binding
obligations of Vendor Services and the Registrants, as
applicable, enforceable against Vendor Services and the
Registrants, as applicable, 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 Leases and its rights in the
Equipment by Vendor Services to the SPC or of the Leases and its
rights to disposition proceeds of the Equipment by the SPC to the
Issuer, the pledge of the Trust Assets by the Issuer, the issue
and sale of the Notes by the Issuer 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 Vendor Services or any of the Registrants may
be a party or by which any may be bound or to which the property
or assets of Vendor Services or any of the Registrants are
subject (which contracts, indentures, mortgages, loan agreements,
notes, leases and other such instruments have been identified by
Vendor Services and the Registrants
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to such counsel), nor will such action result in any violation of
the provisions of the certificate of incorporation or by-laws or
limited liability company agreement, as the case may be, of
Vendor Services or any of the Registrants or, to the best of such
counsel's knowledge, any order or regulation known to us to be
applicable to Vendor Services or any of the Registrants of any
state or federal court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over Vendor
Services or any of the Registrants.
(vi) The Notes have been duly authorized and executed by the
Issuer and when authenticated as specified in the Indenture and
delivered and paid for pursuant to this Agreement, will be duly
issued obligations of the Issuer, entitled to the benefits of the
Indenture.
(vii) The Indenture creates a valid security interest in
favor of the Trustee in the Leases and other property included in
the Trust Assets on the date hereof, which security interest of
the Trustee in the Leases and the Trust Assets will be perfected
and will constitute a first perfected security interest upon the
filing of Uniform Commercial Code ("UCC") financing statements in
the offices of the Secretary of State of Minnesota and Delaware;
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
Leases if the Trustee does not file continuation statements as
required by the Indenture or (b) as to the priority of any
security interest in the Leases 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
Vendor Services or the Registrants for the consummation by Vendor
Services or any of the Registrants, as applicable, of the
transactions contemplated by the Transaction Agreements, except
such as may be required under the Securities Act or the
regulations thereunder, or state securities or Blue Sky laws.
(ix) The Registration Statement is effective under the
Securities 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 Securities Act
or proceedings therefor initiated or threatened by the
Commission.
(x) The Indenture has been duly qualified under the Trust
Indenture Act.
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(xi) To the best of such counsel's knowledge, there are no
contracts or documents of the Registrants which are required to
be filed as exhibits to the Registration Statement pursuant to
the Securities Act or the regulations thereunder which have not
been so filed or incorporated by reference.
(xii) The statements in the Prospectus under the heading
"Federal Income Tax Consequences," to the extent that they
constitute statements of law or legal conclusions as to the
likely outcome of material issues under the federal income tax
laws, have been prepared or reviewed by such counsel and are
correct in all material respects.
(xiii) The Issuer is not and will not as a result of the
offer and sale of the Notes 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 under the caption
"Description of the Notes," "The Leases - Representations and
Warrantees Made by Vender Services" and "Description of the
Contribution and Servicing Agreement" insofar as such statements
purport to summarize certain terms of the Notes, and the
Transaction Agreements 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 Securities Act and the regulations
thereunder.
(xvi) The execution, delivery and performance by Vendor
Services or the Registrants, as applicable, of the Transaction
Agreements do not require the consent or approval of, the giving
of notice to, the registration with, or the taking of any other
action in respect of any federal, state or other governmental
agency or authority which has not previously been effected.
(xvii) To such counsel's knowledge, there are no pending or
overtly threatened lawsuits or claims against the Registrants or
Green Tree, or relating to the transaction, Vendor Services or
contemplated by the Underwriting Agreement and the Transaction
Agreements which, if adversely determined, would have a material
adverse effect on the transactions contemplated by the
Underwriting Agreement and the Transaction Agreements.
12
Such counsel shall deliver to you such additional opinions addressing the
transfer by Vendor Services or the Registrants of any right, title and interest
in and to the Leases and other property included in the Trust Assets on the
Closing Date as may be required by each Rating Agency rating the Notes.
Such counsel shall state that it has participated in the conferences with
officers and other representatives of the Registrants, your counsel,
representatives of the independent accountants for the Registrants 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 Prospectus on the date of this Agreement contained, or on the
Closing Date 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 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.
(2) The favorable opinion, dated as of the Closing Date, of Xxxx
X. Xxxxxxxxx, Senior Vice President and Secretary to the Issuer and
the SPC and Senior Vice President and General Counsel to Green Tree,
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 Vendor Services or any of the
Registrants or Green Tree.
(ii) Each of Vendor Services or the Registrants and Green
Tree is qualified to do business, and is in good standing, as a
foreign corporation or other appropriate entity 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
13
adverse effect on the financial condition of Vendor Services,
such Registrant or Green Tree.
(3) The favorable opinion of counsel to the Trustee, dated as of
the Closing Date, 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 Indenture and the Indenture 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 Indenture 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 Indenture.
(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 Indenture.
(v) The Notes have been duly authenticated by the Trustee.
In rendering such opinion, such counsel may rely, as to matters of fact, to
the extent deemed proper and stated therein, on certificates of responsible
officers of the Trustee or public officials.
(4) The favorable opinion or opinions, dated as of the Closing
Date, of Xxxxx & Wood LLP, counsel for the Underwriters, with respect
to the issue and sale of the Notes, the Registration Statement, this
Agreement, the Prospectus, and other related matters as the
Underwriters may require and the Registrants shall have furnished to
such counsel such documents as they reasonably request for enabling
them to pass upon such matters.
(d) Each of the Registrants shall have furnished to the Representative
a certificate, dated the Closing Date, of any of its Chairman of the Board,
President or Vice President and its chief financial officer stating that
(i) such officers have carefully examined the Registration Statement and
the Prospectus, (ii) the Prospectus does not contain any untrue statement
of a material fact or omit to state a material fact required to
14
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
(provided that each of the Registrants may exclude Underwriters'
Information (as defined in Section 10(d) herein) from such representation),
(iii) the representations and warranties of any of the Registrants
contained in this Agreement and the Transaction Agreements are true and
correct in all material respects on and as of the Closing Date, (iv) each
of the Registrants has complied in all material respects with all
agreements and satisfied in all material respects all conditions on its
part to be performed or satisfied hereunder and under such agreements at or
prior to the Closing Date, (v) no stop order suspending the effectiveness
of the Registration Statement has been issued and is outstanding and no
proceedings for that purpose have been instituted and not terminated or, to
the best of his or her knowledge, are contemplated by the Commission, and
(vi) since the date of its most recent financial statements, there has been
no material adverse change in the financial position or results of
operations of any of the Registrants or Green Tree, as applicable, or any
change, or any development including a prospective change, in or affecting
the condition (financial or otherwise), results of operations or business
of any of the Registrants, Vendor Services or Green Tree except as set
forth in or contemplated by the Registration Statement and the Prospectus.
(e) Subsequent to the date of this Agreement, there shall not have
occurred (i) any change, or any development involving a prospective change,
in or affecting particularly the business or properties of any of the
Registrants, Vendor Services or Green Tree which materially impairs the
investment quality of the Notes; (ii) trading in securities generally on
the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or limited, or minimum
prices shall have been established on either of such exchanges or such
market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, or trading in securities of
any of the Registrants or Green Tree on any exchange or in the
over-the-counter market shall have been suspended or (iii) a general
moratorium on commercial banking activities shall have been declared by
Federal or New York State authorities or (iv) an outbreak or escalation of
hostilities or a declaration by the United States of a national emergency
or war or such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) as to make it, in the
judgment of the Representative, impracticable or inadvisable to proceed
with the public offering or the delivery of the Notes on the terms and in
the manner contemplated in the Prospectus.
(f) The Underwriters shall have received from KPMG Peat Marwick LLP or
other independent certified public accountants acceptable to the
Underwriters, a letter, dated as of the date hereof and as of the Closing
Date, delivered at such times, in the form heretofore agreed to.
(g) The Underwriters shall receive evidence satisfactory to them that,
on or before the Closing Date, UCC-1 financing statements have been or are
being filed in each office in each jurisdiction in which such financing
statements are required to perfect the
15
first priority security interests created by the Transaction Agreements
reflecting the interest of the Trustee in the Trust Assets and the proceeds
thereof.
[(h) Subsequent to the execution and delivery of this Agreement, (i)
no downgrading shall have occurred in the rating accorded Green Tree's
non-asset-backed debt securities by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Securities Act and (ii) no such
organization shall have publicly announced that it has under surveillance
or review (other than an announcement with positive implications of a
possible upgrading), its rating of any of Green Tree's other
non-asset-backed debt securities.]
(i) At the Closing Date, the Class A-1 Notes shall be rated by each of
S&P and Fitch in their highest rating category; the Class A-2, Class A-3
and Class A-4 Notes shall be rated at least ""AAA" by each of S&P and
Fitch, the Class B Notes shall be rated at least "A" by each of S&P and
Fitch; and the Class C Notes shall be rated at least "BBB" by each of S&P
and Fitch.
All opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
SECTION 7. Termination of Agreement. The obligations of the Underwriters
hereunder may be terminated by the Representative, in its absolute discretion,
by notice given to and received by the Registrants prior to delivery of and
payment for the Notes if, prior to that time, any of the events described in
Section 6(e) or Section 6(j) shall have occurred.
SECTION 8. Defaulting Underwriters.
(a) If, on the Closing Date, any Underwriter or Underwriters default
in the performance of its or their obligations under this Agreement, the
Representative may make arrangements for the purchase of such Notes by
other persons satisfactory to the Registrants and the Representative,
including any of the Underwriters, but if no such arrangements are made by
the Closing Date, then each remaining non-defaulting Underwriter shall be
severally obligated to purchase the Notes which the defaulting Underwriter
or Underwriters agreed but failed to purchase on the Closing Date in the
respective proportions which the principal amount of Notes set forth
opposite the name of each remaining non-defaulting Underwriter in Schedule
I hereto bears to the aggregate principal amount of Notes set forth
opposite the names of all the remaining non-defaulting Underwriters in
Schedule I hereto; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Notes on the
Closing Date if the aggregate principal amount of Notes which the
defaulting Underwriter or Underwriters agreed but failed to purchase on
such date exceeds one-eleventh of the aggregate principal amount of the
Notes to be purchased on the Closing Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase in total more than 10% of
the principal amount of the Notes which it agreed to purchase on the
Closing Date pursuant to the terms of Section 2. If the foregoing maximums
are exceeded and the remaining Underwriters or other underwriters
16
satisfactory to the Representative and the Registrants do not elect to
purchase the Notes which the defaulting Underwriter or Underwriters agreed
but failed to purchase, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Registrants, except that
the provisions of Sections 9 and 13 shall not terminate and shall remain in
effect. As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context otherwise requires, any party
not listed in Schedule I hereto who, pursuant to this Section 8, purchases
Notes which a defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have for damages caused by its default. If other
Underwriters are obligated or agree to purchase the Notes of a defaulting
Underwriter, either the Representative or the Registrants may postpone the
Closing Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Registrants or counsel for
the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement, and the Registrants
agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus that effects any such changes.
SECTION 9. Reimbursement of Underwriters' Expenses. If (i) the Issuer shall
fail to tender the Notes for delivery to the Underwriters for any reason
permitted under this Agreement or (ii) the Underwriters shall decline to
purchase the Notes for any reason permitted under this Agreement, Green Tree
shall reimburse the Underwriters for the fees and expenses of their counsel and
for such other out-of-pocket expenses as shall have been reasonably incurred by
them in connection with this Agreement and the proposed purchase of the Notes,
and upon demand Green Tree shall pay the full amount thereof to the
Representative. If this Agreement is terminated pursuant to Section 8 by reason
of the default of one or more Underwriters, Green Tree shall not be obligated to
reimburse any defaulting Underwriter on account of those expenses.
SECTION 10. Indemnification.
(a) The Registrants and Green Tree shall, jointly and severally,
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Securities Act
(collectively referred to for the purposes of this Section 10 as the
Underwriter) against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which that Underwriter may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of or is based upon (i)
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any
amendment thereof or supplement thereto, or in any Preliminary Prospectus
or the Prospectus or in any amendment thereof or supplement thereto or (ii)
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each Underwriter for any legal or other
expenses reasonably incurred by that Underwriter directly in connection
with investigating or preparing to defend or defending against or appearing
as a third party witness in connection with any such loss, claim, damage,
liability or action
17
as such expenses are incurred; provided, however, that none of the
Registrants or Green Tree shall be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of or is
based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any Registration Statement as originally filed or
in any amendment thereof or supplement thereto, or in any Preliminary
Prospectus or the Prospectus or in any amendment thereof or supplement
thereto in reliance upon and in conformity with the Underwriters'
Information (as defined in Section 10(d) herein), and provided, further,
that none of the Registrants or Green Tree shall be liable to any
Underwriter or any person controlling such Underwriter under the indemnity
agreement in this subsection (a) with respect to any of such documents to
the extent that any such loss, claim, damage or liability of such
Underwriter or such controlling person results from the fact that such
Underwriter sold Notes to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the Prospectus
or of the Prospectus as then amended or supplemented, whichever is most
recent, if the Registrants have previously furnished copies thereof to you.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless each of the Registrants and Green Tree, and each of their
directors, each officer of the Registrants and Green Tree who signed the
Registration Statement and each person, if any, who controls the
Registrants and Green Tree within the meaning of the Securities Act,
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Registrants and Green Tree may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of or is based upon (i)
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any
amendment thereof or supplement thereto, or in any Preliminary Prospectus
or the Prospectus or in any amendment thereof or supplement thereto or (ii)
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with the Underwriters' Information (as
defined in Section 10(d) herein), and shall reimburse the Registrants and
Green Tree for any legal or other expenses reasonably incurred by the
Registrants and Green Tree in connection with investigating or preparing to
defend or defending against or appearing as third party witness in
connection with any such loss, claim, damage or liability (or any action in
respect thereof) as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 10 except to the extent it has been materially prejudiced by such
failure; and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 10. If any
such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party
18
thereof, the indemnifying party shall be entitled to participate therein
and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party). After notice from the indemnifying party to the indemnified party
of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 10 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the
Representative shall have the right to employ counsel to represent jointly
the Representative and the other Underwriters (and their respective
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought under this Section 10)
if, in the reasonable judgment of the Representative, it is advisable for
the Representative and the other Underwriters and controlling persons to be
jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Registrants and
Green Tree. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 10(a) and 10(b), shall use all reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall be liable for any settlement
of any such action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) The Underwriters confirm that the information (such information,
the "Underwriters' Information") set forth (i) in the [last] paragraph on
the cover page, and (ii) in the [_____] and [______] paragraphs under the
caption "Underwriting" in the Prospectus is correct and constitutes the
only information furnished in writing to the Registrants by or on behalf of
the Underwriters specifically for inclusion in the Registration Statement
and the Prospectus.
(e) The obligations of the Registrants and Green Tree in this Section
10 shall be in addition to any liability which the Registrants or Green
Tree may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Securities Act; and the obligations of the Underwriters
under this Section 10 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director and officer of the Registrants and
Green Tree (including any person who, with his or her consent, is named in
the Registration Statement as about to become a director of the Registrants
or Green Tree) and to each person, if any, who controls the Registrants or
Green Tree within the meaning of the Securities Act.
SECTION 11. Contribution. If the indemnification provided for in Section 10
is unavailable or insufficient to hold harmless an indemnified party under
Section 10, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or
19
liability, or any action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Registrants and
Green Tree on the one hand and the Underwriters on the other from the offering
of the Notes 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 relative benefits referred to in clause (i) above but also the relative
fault of the Registrants and Green Tree on the one hand and the Underwriters on
the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or any action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits received by
the Registrants and Green Tree on the one hand and the Underwriters on the other
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Notes purchased hereunder
(before deducting expenses) received by the Issuer bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the Notes purchased hereunder, in each case as set forth in the table on the
cover page of the Prospectus. 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 Registrants and Green Tree on the one
hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Registrants and Green Tree and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 11 were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim damage or liability referred to above in
Section 10 shall be deemed to include, for purposes of this Section 11, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such claim or any action.
Notwithstanding the provisions of this Section 11, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public were
offered to the public less the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 10(d) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to indemnify and
contribute as provided in Section 10 and this Section 11 are several in
proportion to their respective underwriting obligations and not joint.
SECTION 12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon you, the Registrants and Green Tree
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Sections 10
and 11 and their heirs and legal representatives any legal or equitable right,
remedy or claim under or with respect to this Agreement or any provision herein
or therein contained.
SECTION 13. Expenses. Green Tree will pay all expenses incident to the
performance of the Registrants' obligations under this Agreement, including
without limitation those related to (i) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Notes
20
and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (iii) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any Preliminary Prospectus and the Prospectus, all as provided in
this Agreement; (iv) the costs of reproducing and distributing this Agreement
and any other underwriting and selling group documents by mail, telex or other
means of communications; (v) the fees and expenses of qualifying the Notes under
the securities laws of the several jurisdictions as provided in Section __ and
of preparing, printing and distributing Blue Sky Memoranda and Legal Investment
Surveys (including the related reasonable and documented fees and expenses of
counsel to the Underwriters); (vi) any fees charged by rating agencies for
rating the Notes; (vii) all fees and expenses of the Trustee and its counsel;
(viii) any transfer taxes payable in connection with its sale of the Notes
pursuant to this Agreement; and (ix) all other costs and expenses incident to
the performance of the obligations of the Registrants under this Agreement;
provided that, except as otherwise provided in this Section __, the Underwriters
shall pay their own costs and expenses, including, the costs and expenses of
their counsel and the expenses of advertising any offering of the Notes made by
the Underwriters.
SECTION 14. Survival. The respective indemnities, rights of contribution,
agreements, representations, warranties and other statements of the Registrants,
Green Tree and the several Underwriters, as set forth in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or any of the Registrants or Green Tree,
or any officer, director or controlling person of the Registrants or Green Tree,
and shall survive delivery of and payment for the Notes.
SECTION 15. 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 telecommunications and, (i) if sent to the
Underwriters will be mailed, delivered or telecopied and confirmed to them at
First Union Capital Markets, a division of Wheat First Securities, Inc., Asset
Securitization Division, 000 Xxxxx Xxxxxxx Xxxxxx, XX-0, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000-0000, Telecopy Number: (000) 000-0000; provided, however, that
any notice to an Underwriter pursuant to Section 9(c) shall be delivered or sent
by mail, delivery or telecopy to such Underwriter at its address set forth in
its acceptance telex to the Representative, which address will be supplied to
any other party hereto by the Representative upon request; and (ii) if sent to
the Issuer, the SPC, Vendor Services or Green Tree will be mailed, delivered or
telecopied and confirmed to them at 1100 Landmark Towers, 000 Xx. Xxxxx Xxxxxx,
Xxxxx Xxxx, Xxxxxxxxx 00000-0000, attention of the Secretary, with a copy to the
Treasurer Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof. The Issuer, the SPC, the Servicer and Green Tree
shall be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Underwriters by the Representative.
SECTION 16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
21
SECTION 17. Counterparts. This 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 one and the same instrument.
SECTION 18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
SECTION 19. Effectiveness. This Agreement shall become effective upon
execution and delivery.
22
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 among you, the
Registrants and Green Tree in accordance with its terms.
Very truly yours,
GREEN TREE LEASE FINANCE II, INC.
By:
-------------------------------
Name:
Title:
GREEN TREE LEASE FINANCE 1998-1, LLC
By: GREEN TREE LEASE FINANCE II, INC.
By:
-------------------------------
Name:
Title:
GREEN TREE FINANCIAL CORPORATION
By:
-------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
FIRST UNION CAPITAL MARKETS, A DIVISION
OF WHEAT FIRST SECURITIES, INC., as
Representative of the Underwriters
By:
-------------------------------
Name:
Title:
[Other Underwriters]
23
SCHEDULE I
Date of Underwriting Agreement: December [__], 1998
Underwriters: First Union Capital Markets, a division of Wheat
First Securities, Inc.
Xxxxxx Brothers Inc.
NationsBanc Xxxxxxxxxx Securities LLC
Representative and Address: First Union Capital Markets, a division of Wheat
First Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Schedule I-1
Title, Purchase Price and Description of Notes:
Class A-1 Notes
---------------
Title: $[___________] [_____]% Class A-1 Receivable-Backed Notes, Series 1998-1
Price to public: [_____]%
Purchase price: [_____]%
Underwriting
discount: [______]%
Maturity: [_________] [____] Payment Date
Class A-2 Notes
---------------
Title: $[___________] [_____]% Class A-2 Receivable-Backed Notes, Series 1998-1
Price to public: [_____]%
Purchase price: [_____]%
Underwriting
discount: [______]%
Maturity: [_________] [____] Payment Date
Class A-3 Notes
---------------
Title: $[___________] [_____]% Class A-3 Receivable-Backed Notes, Series 1998-1
Price to public: [_____]%
Purchase price: [_____]%
Underwriting
discount: [______]%
Maturity: [_________] [____] Payment Date
Class A-4 Notes
---------------
Title: $[___________] [_____]% Class A-4 Receivable-Backed Notes, Series 1998-1
Price to public: [_____]%
Purchase price: [_____]%
Underwriting
discount: [______]%
Maturity: [_________] [____] Payment Date
Class B Notes
-------------
Title: $[__________] [_____]% Class B Receivable-Backed Notes, Series 1998-1
Price to public: [_____]%
Schedule I-2
Purchase price: [_____]%
Underwriting
discount: [______]%
Maturity: [_________] [____] Payment Date
Class C Notes
-------------
Title: $[_________] [_____]% Class C Receivable-Backed Notes, Series 1998-1
Price to public: [______]%
Purchase price: [______]%
Underwriting
discount: [______]%
Maturity: [________] [____] Payment Date
Closing Date, Time and Location:
Date: December [__], 1998
Time: [____ Minneapolis, Minnesota time]
Location: [Xxxxxx & Xxxxxxx LLP, _________________________, Minneapolis, Minnesota]
Schedule I-3
SCHEDULE II
UNDERWRITERS
$[__________] Principal Amount of Class A-1 Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of Wheat First Securities, Inc. $ __________
[Other Underwriters] __________
__________
__________
UNDERWRITERS
$[__________] Principal Amount of Class A-2 Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of Wheat First Securities, Inc. $ __________
[Other Underwriters] __________
__________
__________
UNDERWRITERS
$[__________] Principal Amount of Class A-3 Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of Wheat First Securities, Inc. $ __________
[Other Underwriters] __________
__________
__________
UNDERWRITER
$[__________] Principal Amount of Class B Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of Wheat First Securities, Inc. $ __________
Schedule II-1
UNDERWRITER
$[__________] Principal Amount of Class C Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of Wheat First Securities, Inc. $ __________
Schedule II-2
