Exhibit 1.1
$400,400,000
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1998-1, Class A
and
$20,475,000
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1998-1, Class B
GREEN TREE FLOORPLAN RECEIVABLES MASTER TRUST
UNDERWRITING AGREEMENT
April __, 1998
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Green Tree Floorplan Funding Corp. ("GTFFC") is a Delaware corporation
with its principal place of business in Saint Xxxx, Minnesota. GTFFC has filed a
Registration Statement on Form S-1 (hereinafter referred to as the "Registration
Statement") relating to $400,400,000 (Floating Rate) Floorplan Receivable Trust
Certificates, Series 1998-1, Class A and $20,475,000 (Floating Rate) Floorplan
Receivable Trust Certificates, Series 1998-1, Class B (the "Offered
Certificates") evidencing interests in Green Tree Floorplan Receivables Master
Trust (the "Trust"). The Offered Certificates will be issued pursuant to a
pooling and servicing agreement (the "Pooling and Servicing Agreement") dated as
of December 1, 1995 among GTFFC, as transferor, Green Tree Financial
Corporation, as servicer ("Green Tree" or the "Servicer"), and Norwest Bank
Minnesota, National Association, as trustee (the "Trustee") and pursuant to a
1998-1 Series Supplement to the Pooling and Servicing Agreement (the "Series
Supplement"), dated as of March 1, 1998 among GTFFC, as transferor, Green Tree,
as Servicer, and the Trustee, as trustee. The
Pooling and Servicing Agreement, as supplemented by the Series Supplement, is
hereinafter referred to as the "Pooling and Servicing Agreement." $19,337,000
principal amount of Class C Certificates (the "Class C Certificates"),
$14,788,000 principal amount of Class D Certificates (the "Class D
Certificates") and the Exchangeable Transferor Certificate (together with the
Offered Certificates, the Class C Certificates and the Class D Certificates, the
"Certificates") will also be issued pursuant to the Pooling and Servicing
Agreement. The assets of the Trust will consist of (i) all wholesale receivables
(the "Receivables") generated from time to time in a portfolio of revolving
financing arrangements between Green Tree and certain dealers in consumer and
commercial products (the "Accounts") satisfying certain criteria described in
the Prospectus, (ii) all funds collected from Obligors in respect of the
Receivables, (iii) all right, title, and interest of GTFFC in, to, and under a
receivables purchase agreement (the "Purchase Agreement"), dated as of December
1, 1995 between GTFFC and Green Tree, (iv) all funds on deposit in the Trust
Accounts, (v) Recoveries, (vi) an assignment of a security interest in the
Collateral Security, (vii) GTFFC's rights under all Floorplan Agreements, and
(viii) proceeds of the foregoing. The Receivables will be purchased from Green
Tree by GTFFC pursuant to the Purchase Agreement and thereafter transferred to
the Trust. The forms of the Pooling and Servicing Agreement and the Series
Supplement have been filed as exhibits to the Registration Statement.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement, the Series Supplement and the
Purchase Agreement (together, the "Designated Agreements"). GTFFC and Green Tree
will be referred to collectively herein as the "Green Tree Parties."
The Certificates are more fully described in a Registration Statement that
GTFFC has furnished to you. The terms "you" or "Underwriter" as used herein,
unless the context otherwise requires, shall mean X.X. Xxxxxx Securities Inc.
The offering of the Offered Certificates will be made through you. GTFFC
and Green Tree will also enter into an agreement (the "Terms Agreement")
providing for the sale of such Offered Certificates to, and the purchase thereof
by, you. The Terms Agreement shall specify, among other things, the price or
prices at which the Offered Certificates are to be purchased by you from the
Trust and the initial public offering price or prices or the method by which the
price or prices at which the Offered Certificates are to be sold will be
determined. The Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between you and GTFFC.
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The offering of the Offered Certificates will be governed by this Agreement, as
supplemented by the Terms Agreement.
GTFFC has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-47533) and a related
preliminary prospectus for the registration of the Offered Certificates under
the Securities Act of 1933 (the "1933 Act"), and has filed, and proposes to
file, such amendments thereto as may have been required to the date hereof
pursuant to the 1933 Act and the rules of the Commission thereunder (the
"Regulations"). The registration statement (including the prospectus
constituting a part thereof and the information, if any, deemed to be part
thereof pursuant to Rule 430A(b) of the Regulations) in the form in which it
became effective under the Act on __________, 1998 (the "EFFECTIVE DATE"),
including the exhibits thereto, is referred to herein as the "REGISTRATION
STATEMENT", and the prospectus dated April ______ , 1998 in the form in which it
was most recently filed with the Commission (including the information, if any,
deemed to be part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations)
is referred to herein as the "PROSPECTUS", except that if any revised prospectus
shall be provided to you by GTFFC for use in connection with the offering of the
Offered Certificates which differs from the Prospectus on file at the Commission
at the time the Registration Statement becomes effective (whether or not such
revised prospectus is required to be filed by GTFFC pursuant to Rule 424(b) of
the 1933 Act Regulations), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to you for such use.
GTFFC understands that you propose to make a public offering of the Offered
Certificates as soon as you deem advisable after this Agreement and the Terms
Agreement have been executed and delivered; provided that the Class A
Certificates may be sold to a single trust.
SECTION 1. REPRESENTATIONS AND WARRANTIES. Each of GTFFC and Green Tree
represents and warrants to you as of the date hereof, as of the date of the
Terms Agreement (the "Representation Date") and as of the Closing Time (as
defined below) as follows:
(a) The Registration Statement and the Prospectus do, on the Effective
Date and on the date hereof, and as of the Representation Date will, comply
in all material respects with the requirements of the 1933 Act and the
Regulations. The Registration Statement, on the Effective Date and on the
date hereof, did not and does not, and as of the Representation Date and
the Closing Time will not, contain any untrue
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statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as amended or supplemented on the Effective
Date and on the date hereof, did not and does not, and as amended or
supplemented as of the Representation Date and the Closing Time will not,
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in, or omissions from, the Registration Statement
or Prospectus made in reliance upon and in conformity with information
furnished to GTFFC in writing by you expressly for use in the Registration
Statement or Prospectus. There are no contracts or documents of GTFFC which
are required to be filed as exhibits to the Registration Statement pursuant
to the 1933 Act or the Regulations which have not been so filed or
incorporated by reference.
(b) Each of GTFFC and Green Tree has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
state of Delaware, with corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement, the Designated Agreements and the Terms Agreement as such Green
Tree Party may be a party to; and each of the Green Tree Parties is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the ownership or lease of its
properties or the conduct of its business under the Designated Agreements
requires such qualification.
(c) Neither GTFFC nor Green Tree is in violation of its certificate of
incorporation or by-laws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or its properties may be
bound, which default might result in any material adverse change in its
financial condition, earnings, affairs or business or which might
materially and adversely affect the properties or assets thereof.
(d) The execution and delivery of this Agreement, the Terms Agreement
and the Designated Agreements by GTFFC and Green Tree are within the
corporate power of GTFFC and Green Tree, respectively, and have been duly
authorized by all
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necessary corporate action on the part of GTFFC and Green Tree; and neither
the issuance and sale of the Offered Certificates to you, nor the execution
and delivery of this Agreement, the Terms Agreement or the Designated
Agreements by GTFFC or Green Tree, nor the consummation by GTFFC or Green
Tree of any of the transactions therein contemplated, nor compliance by
GTFFC or Green Tree with the provisions hereof or thereof, will materially
conflict with or result in a material breach of, or constitute a material
default under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on GTFFC or Green Tree or
their respective properties or the certificate of incorporation or by-laws
of GTFFC or Green Tree, or any of the provisions of any indenture,
mortgage, contract or other instrument to which GTFFC or Green Tree is a
party or by which it is bound or result in the creation or imposition of
any lien, charge or encumbrance upon any of their respective properties
pursuant to the terms of any such indenture, mortgage, contract or other
instrument.
(e) This Agreement has been, and the Terms Agreement when executed and
delivered as contemplated hereby and thereby will have been, duly
authorized, executed and delivered by GTFFC and Green Tree, and each
constitutes, or will constitute when so executed and delivered, a legal,
valid and binding instrument enforceable against GTFFC and Green Tree in
accordance with its terms, subject (i) to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors rights generally, (ii) as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (iii) as to enforceability with respect
to rights of indemnity thereunder, to limitations of public policy under
securities laws.
(f) The Designated Agreements, when executed and delivered as
contemplated hereby and thereby, will have been duly authorized, executed
and delivered by GTFFC and Green Tree, and will constitute, when so
executed and delivered, a legal, valid and binding agreements, enforceable
against GTFFC and Green Tree in accordance with their respective terms,
subject (i) to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally and
(ii) as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(g) As of the Closing Time, the Certificates will have been duly and
validly authorized, and, when executed and authenticated as specified in
the Pooling and Servicing
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Agreement, will be validly issued and outstanding and will be entitled to
the benefits of the Pooling and Servicing Agreement, and will be binding
obligations of the Trust to the extent provided in the Pooling and
Servicing Agreement.
(h) No filing or registration with, notice to or consent, approval,
authorization or order of any court or governmental authority or agency is
required for the consummation by GTFFC or Green Tree of the transactions
contemplated by this Agreement, any of the Designated Agreements or the
Terms Agreement, except such as may be required under the 1933 Act, the
Regulations, or state securities or Blue Sky laws.
(i) There are no proceedings or investigations pending or, to the best
knowledge of GTFFC or Green Tree, threatened against GTFFC or Green Tree
before any governmental authority (i) asserting the invalidity of any
Designated Agreement or of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated thereby, (iii) seeking
any determination or ruling that would materially and adversely affect the
performance by GTFFC or Green Tree of its obligations thereunder or the
ability of Green Tree to originate Receivables, (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability thereof or (v) seeking to affect adversely the
tax attributes of the Trust.
(j) Each of GTFFC and Green Tree possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
business now operated by it or as described in the Prospectus and has not
received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the conduct of the
business, operations, financial condition or income of GTFFC or Green Tree,
respectively.
(k) Neither GTFFC, Green Tree nor the Trust will be subject to
registration as an "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act").
(l) The Certificates and the Designated Agreements conform in all
material respects to the descriptions thereof contained in the Prospectus.
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(m) At the Closing Time, the Offered Certificates shall have received
the certificate ratings specified in the Terms Agreement.
(n) At the Closing Time, each of the representations and warranties of
GTFFC and Green Tree set forth in any of the Designated Agreements will be
true and correct.
SECTION 2. PURCHASE AND SALE. The commitment by you to purchase the Offered
Certificates pursuant to the Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, the Offered
Certificates to be purchased by you shall be made at the office of Xxxxxx &
Xxxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, or at such
other place as shall be agreed upon by you and GTFFC, at such time or date as
shall be agreed upon by you and GTFFC and Green Tree in the Terms Agreement
(such time and date being referred to as the "Closing Time"). Payment shall be
made to or at the direction of GTFFC, in immediately available Federal funds
wired to such bank as may be designated by GTFFC. The Offered Certificates shall
be in such denominations specified by you and registered in the name of Cede &
Co., unless you shall otherwise specify in writing at least two business days
prior to the Closing Time. The Offered Certificates, which may be in temporary
form, will be made available for examination and packaging by you no later than
12:00 noon on the first business day prior to the Closing Time.
SECTION 3. COVENANTS OF GTFFC AND GREEN TREE. GTFFC and Green Tree covenant
with you as follows:
(a) Immediately following the execution of this Agreement and the
Terms Agreement, GTFFC will prepare the Prospectus setting forth the
principal amount of the Offered Certificates, the price at which the
Offered Certificates are to be purchased by you, either the initial public
offering price or the method by which the price by which the Offered
Certificates are to be sold will be determined, the selling concession(s)
and reallowance(s), if any, and such other information as you and GTFFC
deem appropriate in connection with the offering of the Offered
Certificates. GTFFC will, to the extent required by the Regulations,
promptly transmit copies of the Prospectus to the Commission for filing
pursuant to Rule 424 under the 1933 Act and will furnish to you as many
copies of the Prospectus as you shall reasonably request.
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(b) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Certificates by you,
any event shall occur or condition exist as a result of which it is
necessary, in the opinion of your counsel, counsel for GTFFC, or otherwise,
to further amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of
circumstances existing at the time it is delivered to a purchaser, not
misleading or if it shall be necessary, in the opinion of any such counsel
or otherwise, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
1933 Act or the Regulations thereunder, GTFFC will promptly prepare and
will (1) file with the Commission such amendment or supplement as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement comply with such requirements and (2) within two
business days will furnish you as many copies of the Prospectus, as so
amended or supplemented, as you shall reasonably request.
(c) GTFFC will give you reasonable notice of any intention to file any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus, whether pursuant to the 1933 Act or otherwise (other than
reports to be filed pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act")), and GTFFC will furnish you with copies of any
such amendment or supplement or other documents proposed to be filed a
reasonable time in advance of filing, and will not file any such amendment
or supplement or other documents in a form to which you or your counsel
shall object.
(d) GTFFC will notify you immediately, and confirm the notice in
writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing
of any supplement to the Prospectus or any document, other than reports to
be filed pursuant to the 1934 Act, (iii) of the receipt of any comments
from the Commission with respect to the Registration Statement or the
Prospectus, (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (v) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or suspension of the qualification of the Certificates or the initiation of
any proceedings for that purpose. GTFFC will make every reasonable effort
to prevent the issuance of any such stop order and,
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if any such stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(e) GTFFC will deliver to you as many signed and as many conformed
copies of the Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein) as you may reasonably request.
(f) GTFFC will endeavor, in cooperation with you, to qualify the
Certificates for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as you may
designate, and will maintain or cause to be maintained such qualifications
in effect for as long as may be required for the distribution of the
Certificates. GTFFC will file or cause the filing of such statements and
reports as may be required by the laws of each jurisdiction in which the
Certificates have been qualified as above provided.
SECTION 4. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. Your obligation to
purchase the Offered Certificates pursuant to the Terms Agreement are subject to
the accuracy of the representations and warranties on the part of GTFFC and
Green Tree herein contained, to the accuracy of the statements of officers of
GTFFC and Green Tree made pursuant hereto, to the performance by each of GTFFC
and Green Tree of all of its obligations hereunder and to the following further
conditions:
(a) The Registration Statement shall have become effective not later than
4:00 p.m., New York time, on the day following the date of this Agreement or
such later date as shall have been consented to by you; and at the Closing Time
(i) no stop order suspending the effectiveness of the Registration Statement
shall have been issued or proceedings therefor initiated or threatened by the
Commission, (ii) the Offered Certificates shall have received the ratings
specified in the Terms Agreement, and (iii) there shall not have come to your
attention any facts that would cause you to believe that the Prospectus, at the
time it was required to be delivered to a purchaser of the Offered Certificates,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading. If GTFFC has elected to
rely upon Rule 430A of the Regulations, the price of the Offered Certificates
and any price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been transmitted to
the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations
within the prescribed time period, and prior to Closing Time GTFFC shall
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have provided evidence satisfactory to you of such timely filing, or a
post-effective amendment providing such information shall have been promptly
filed and declared effective in accordance with the requirements of Rule 430A of
the Regulations.
(b) At or prior to the Closing Time you shall have received:
(1) The favorable opinion (the "Underwriter Opinion"), dated as of the
Closing Time, of Xxxxxx & Xxxxxxx LLP, special counsel for GTFFC and Green
Tree, in form and substance satisfactory to you and your counsel, to the
effect that:
(i) Each of GTFFC and Green Tree has been duly organized and is
validly existing as a corporation in good standing under the laws of
the State of Delaware.
(ii) The execution and delivery by each of GTFFC and Green Tree
of this Agreement, the Terms Agreement, the Purchase Agreement and the
Pooling and Servicing Agreement and the signing of the Registration
Statement by GTFFC are within the corporate power of GTFFC and Green
Tree, respectively, and each has been duly authorized by all necessary
corporate action on the part of each of GTFFC and Green Tree.
(iii) This Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by each of GTFFC and Green
Tree, and each is a valid and binding obligation of each of GTFFC and
Green Tree enforceable against GTFFC and Green Tree in accordance with
its terms, except that (A) such enforcement may be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' or
secured parties' rights generally, (B) such enforcement may be limited
by general principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and fair dealing,
and other similar doctrines affecting the enforceability of agreements
generally (regardless of whether enforcement is sought in a proceeding
in equity or at law), and (C) the enforceability as to rights to
indemnity thereunder is subject to the effect of federal and state
securities laws and public policy relating thereto.
(iv) The Designated Agreements have been duly authorized,
executed and delivered by GTFFC and Green Tree, and are the valid and
binding obligations of GTFFC and Green Tree enforceable against GTFFC
and
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Green Tree in accordance with their respective terms, except that (A)
such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) such
enforcement may be limited by general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).
(v) None of the transfer of the Receivables to the Trust, the
issue and sale of the Certificates or the consummation of the
transactions contemplated herein nor the fulfillment of the terms
hereof or of the Designated Agreements will, to the best of such
counsel's knowledge, conflict with or constitute a breach of, or
default under, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which GTFFC or Green Tree is a
party or by which either of them may be bound or to which the property
or assets of either of them are subject (which contracts, indentures,
mortgages, loan agreements, notes, leases and other such instruments
have been identified by GTFFC and Green Tree to such counsel), nor
will such action result in any violation of the provisions of the
certificate of incorporation or by-laws of GTFFC or Green Tree or, to
the best of such counsel's knowledge, any order or regulation known to
such counsel to be applicable to GTFFC or Green Tree of any state or
federal court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over GTFFC or Green Tree.
(vi) The Certificates have been duly authorized and, when
executed and authenticated as specified in the Pooling and Servicing
Agreement and delivered and, in the case of the Offered Certificates,
paid for pursuant to this Agreement and the Terms Agreement, will be
duly issued and entitled to the benefits of the Pooling and Servicing
Agreement.
(vii) The Receivables are either "chattel paper", "accounts" or
"general intangibles" under the UCC. The Purchase Agreement creates,
in favor of GTFFC, a valid security interest (as such term is defined
in Section 1-201 of the UCC) in the Receivables now existing and
hereafter created that are either chattel paper or accounts, which
security interest, if characterized as a transfer for security, will
secure the "Secured Obligations" (as defined in the Pooling and
Servicing Agreement) and, in the case of Receivables that are
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general intangibles, is effective to transfer Green Tree's ownership
interest in such Receivables to GTFFC. The Pooling and Servicing
Agreement creates, in favor of the Trustee for the benefit of the
Certificateholders, a valid security interest (as such term is defined
in Section 1-201 of the UCC) in the Receivables now existing and
hereafter created, which security interest, if characterized as a
transfer for security, will secure the "Secured Obligations" (as
defined in the Pooling and Servicing Agreement), and, in the case of
Receivables that are general intangibles, is effective to transfer
GTFFC's ownership interest in such Receivables to the Trustee. The
perfection and the effect of perfection or nonperfection of the
ownership or security interests in the Receivables created pursuant to
the Purchase Agreement or the Pooling and Servicing Agreement will be
governed by the laws of the State of Minnesota. The UCC-1 financing
statements are in appropriate form for filing with the Secretary of
State of Minnesota. Upon the filing of the UCC-1 financing statements
in the office of the Secretary of State of Minnesota, GTFFC will have
a perfected ownership interest in the Receivables, which ownership
interest shall have priority over any other security interest in the
Receivables, and the Trustee will have a perfected ownership or
security interest in the Receivables, which ownership or security
interest shall have priority over any other security interest in the
Receivables. In rendering such opinion, such counsel may take
customary exceptions acceptable to you.
(viii) To the best of such counsel's knowledge, no filing or
registration with or notice to or consent, approval, authorization or
order of any Minnesota or federal court or governmental authority or
agency is required to be obtained by GTFFC or Green Tree for the
consummation by GTFFC or Green Tree of the transactions contemplated
by this Agreement, the Terms Agreement or the Designated Agreements,
except such as may be required under the 1933 Act or the Regulations,
or state securities or Blue Sky laws.
(ix) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
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(x) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
(xi) To the best of such counsel's knowledge, there are no
contracts or documents which are required to be filed as exhibits to
the Registration Statement pursuant to the 1933 Act or the Regulations
thereunder which have not been so filed or incorporated by reference.
(xii) The statements in the Prospectus under the heading "Certain
Federal Income Tax Consequences," to the extent that they constitute
statements of law or legal conclusions as to the likely outcome of
material issues under the federal income tax laws, have been prepared
or reviewed by such counsel and are correct in all material respects.
(xiii) The Trust created by the Pooling and Servicing Agreement
is not, and will not as a result of the offer and sale of the Offered
Certificates as contemplated in the Prospectus and in this Agreement
become, an "investment company" as such term is defined in the 1940
Act.
(xiv) The statements in the Prospectus under the caption
"Description of the Certificates," insofar as such statements purport
to summarize certain terms of the Certificates and the Pooling and
Servicing Agreement, constitute a fair and accurate summary of such
documents.
(xv) The statements in the Prospectus under the headings "Risk
Factors,Transfer of the Receivables; Insolvency Risk Considerations",
"Certain Legal Aspects of the Receivables,Certain Matters Relating to
Bankruptcy" and "Employee Benefit Plan Considerations", to the extent
that they constitute statements of law or legal conclusions with
respect thereto, have been reviewed by such counsel and are correct in
all material respects.
(xvi) The Certificates, the Pooling and Servicing Agreement and
the Underwriting Agreement conform in all material respects to the
descriptions thereof contained in the Prospectus.
(xvii) The Registration Statement and the Prospectus (other than
the financial statements and
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other financial, statistical and numerical information included
therein, as to which no opinion need be rendered) as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the 1933 Act and the
Regulations thereunder.
(xviii) The execution, delivery and performance by GTFFC or Green
Tree of the Designated Agreements do not require the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of any federal, state or other
governmental agency or authority which has not previously been
effected.
(xix) To such counsel's knowledge, there are no pending or
overtly threatened lawsuits or claims against GTFFC or Green Tree or
relating to the transactions contemplated by this Agreement or the
Designated Agreements which, if adversely determined, would have a
materially adverse effect on the transactions contemplated by this
Agreement and the Designated Agreements.
Such counsel shall deliver to you such additional opinions addressing the
transfer by Green Tree to GTFFC and the transfer by GTFFC to the Trust of each
of its right, title and interest in and to the Receivables and other property
included in the Trust on the Closing Time as may be reasonably required by the
Rating Agencies rating the Offered Certificates.
Such counsel shall state that it has participated in conferences with
officers and other representatives of GTFFC and Green Tree, your counsel,
representatives of the independent accountants for GTFFC and Green Tree and you
at which the contents of the Registration Statement and the Prospectus were
discussed and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xii), (xiv), (xv) and (xvi) above) and has made no
independent check or verification thereof for the purpose of rendering this
opinion, on the basis of the foregoing (relying as to materiality to a large
extent upon the certificates of officers and other representatives of GTFFC and
Green Tree), nothing has come to their attention that leads such counsel to
believe that the Registration Statement, when it became effective, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Registration
14
Statement and the Prospectus on the date of this Agreement and the Terms
Agreement contained, and the Prospectus at Closing Time contains, any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that such
counsel need express no view with respect to the financial statements, schedules
and other financial, statistical and numerical data included in or incorporated
by reference into the Registration Statement or the Prospectus.
Such counsel may state that they are admitted to practice only in the State
of Minnesota, that they are not admitted to the Bar in any other State and are
not experts in the law of any other State and to the extent that the foregoing
opinions concern the laws of any other State such counsel may rely upon the
opinion of counsel satisfactory to you and admitted to practice in such
jurisdiction. Any opinions relied upon by such counsel as aforesaid shall be
addressed to you and shall be delivered together with the opinion of such
counsel, which shall state that such counsel believes that their reliance
thereon is justified.
(2) The favorable opinion, dated as of the applicable Closing Time, of
Xxxx X. Xxxxxxxxx, Senior Vice President and General Counsel to Green Tree,
as Servicer of the Receivables, in form and substance satisfactory to you
and your counsel, to the effect that:
(i) There are no pending or, to his knowledge, threatened
litigation or administrative proceeding of or before any court,
tribunal or governmental agency, authority or body or any arbitrator
which, if adversely determined, would have a material adverse effect
on the financial condition of GTFFC or Green Tree.
(ii) Each of GTFFC and Green Tree is qualified to do business,
and is in good standing, as a foreign corporation in each U.S.
jurisdiction in which the character of the business owned or leased by
it makes such qualification necessary, except where the failure to be
so qualified would not have a material adverse effect on the financial
condition of Green Tree.
(iii) Each of GTFFC and Green Tree possesses all material
licenses, certificates, authorities or permits issued by the
appropriate state or federal regulatory agencies or bodies necessary
to conduct the business now conducted by it and as described in the
Prospectus, except to the extent that the failure to have such
licenses, certificates, authorities or permits does not
15
have a material adverse effect on the Receivables or the Certificates
or the financial condition of GTFFC or Green Tree, and neither GTFFC
nor Green Tree has received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of its business, operations or financial
condition.
(iv) At the time of the transfer of the Receivables to GTFFC,
Green Tree owned the Receivables free and clear of any lien, security
interest, charge or other interests of others, except such liens as
are permitted under the Pooling and Servicing Agreement.
(3) The favorable opinion of counsel to the Trustee, dated as of the
Closing Time, addressed to you and in form and scope satisfactory to your
counsel, to the effect that:
(i) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee and is enforceable against the
Trustee in accordance with its terms, subject to customary and usual
exceptions.
(ii) The Trustee has full power and authority to execute and
deliver the Pooling and Servicing Agreement and to perform its
obligations thereunder.
(iii) To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened against
or affecting the Trustee before or by any court, arbitrator,
administrative agency or other governmental authority which, if
adversely decided, would materially and adversely affect the ability
of the Trustee to carry out the transactions contemplated in the
Pooling and Servicing Agreement.
(iv) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body
of the jurisdiction of incorporation of the Trustee is required for
the execution, delivery or performance by the Trustee of the Pooling
and Servicing Agreement.
In rendering such opinion, such counsel may rely, as to
16
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, dated as of the Closing Time, of your
counsel with respect to the issue and sale of the Certificates, the
Registration Statement, this Agreement, the Prospectus and other related
matters as you may require.
(c) You shall have received from Xxxxxx & Xxxxxxx LLP, special counsel for
GTFFC, an opinion, dated as of the Closing Time and satisfactory in form and
substance to you and your counsel, to the effect that the Offered Certificates
will be characterized for Minnesota income and franchise tax purposes as
indebtedness secured by the Receivables and Certificateholders not otherwise
subject to taxation in Minnesota will not be subject to tax in respect of the
Offered Certificates.
(d) At the Closing Time you shall have received a certificate of the
President or a Vice President of each of GTFFC and Green Tree, dated as of such
Closing Time, to the effect that (i) the representations and warranties of each
of GTFFC and Green Tree contained in Section 1 are true and correct with the
same force and effect as though such Closing Time were the Representation Date;
(ii) GTFFC or Green Tree, as applicable, has complied in all material respects
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied under this Agreement at or prior to the Closing Time;
(iii) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been initiated or, to
GTFFC's or Green Tree's knowledge, threatened by the Commission as of the
Closing Time; and (iv) nothing has come to such person's attention that would
lead such person to believe that the Prospectus contains an untrue statement of
a material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(e) You shall have received from KPMG Peat Marwick LLP, or other
independent certified public accountants acceptable to you, a letter, dated as
of the Closing Time, delivered at such times, in the form heretofore agreed to.
(f) At the Closing Time you shall have received, addressed to you, any
additional opinions delivered by counsel pursuant to the request of the Rating
Agencies rating the Offered Certificates.
17
(g) You shall have received facsimile confirmation from a filing service
that (i) a copy of the UCC-1 financing statement on Form UCC-1 has been filed
with the Secretary of State of the State of Minnesota with respect to the
transfer of the Receivables by Green Tree to GTFFC pursuant to the Purchase
Agreement, identifying the Receivables as collateral and naming Green Tree as
debtor and GTFFC as the secured party, and (ii) a copy of the UCC-1 financing
statement on Form UCC-1 has been filed with the Secretary of State of the State
of Minnesota with respect to the transfer of the Receivables by GTFFC to the
Trustee pursuant to the Pooling and Servicing Agreement, identifying the
Receivables as collateral and naming GTFFC as debtor and the Trustee as the
secured party.
(h) At the Closing Time, your counsel shall have been furnished with such
documents and opinions as they reasonably may require for the purpose of
enabling them to pass upon the issuance and sale of the Offered Certificates as
herein contemplated and related proceedings or in order to evidence the accuracy
and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by GTFFC and Green Tree in connection with the issuance and sale of the
Certificates as herein contemplated shall be satisfactory in form and substance
to you and your counsel.
(i) As of the Closing Time, each of the Designated Agreements will have
been duly authorized, executed and delivered by, and will constitute a legal,
valid and binding obligation of, and will be enforceable against each of GTFFC
and Green Tree, in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally and as to enforceability, to general principles of
equity (regardless whether enforcement is sought in a proceeding in equity or at
law).
(j) At the Closing Time, Standard & Poor's Ratings Services, A Division of
The XxXxxx-Xxxx Companies, Inc. shall have delivered a letter to GTFFC stating
that the Class A Certificates are rated "AAA" and the Class B Certificates are
rated "A", Xxxxx'x Investors Service, Inc. shall have delivered a letter to
GTFFC stating that the Class A Certificates are rated "Aaa" and the Class B
Certificates are rated "A3" and Fitch IBCA, Inc. shall have delivered a letter
to GTFFC stating that the Class A Certificates are rated "AAA" and the Class B
Certificates are rated "AA-".
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement and the Terms Agreement may
be terminated by you by notice to GTFFC at any time at or prior to the Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 5.
18
SECTION 5. PAYMENT OF EXPENSES. Green Tree will pay all expenses incident
to the performance of the obligations of GTFFC or Green Tree under this
Agreement, including without limitation those related to (i) the filing of the
Registration Statement and all amendments thereto, (ii) the printing and
delivery to you, in such quantities as you may reasonably request, of copies of
this Agreement, the Terms Agreement, any agreements among underwriters and
selling agreements and your questionnaires and powers of attorney, (iii) the
preparation, issuance and delivery of the Offered Certificates to you, (iv) the
fees and disbursements of GTFFC's and Green Tree's counsel and accountants, (v)
the qualification of the Offered Certificates under securities and Blue Sky laws
and the determination of the eligibility of the Offered Certificates for
investment in accordance with the provisions of Section 3(g), including filing
fees, and the fees and disbursements of your counsel in connection therewith and
in connection with the preparation of any Blue Sky Survey and Legal Investment
Survey, (vi) the printing and delivery to you, in such quantities as you may
reasonably request, hereinafter stated, of copies of the Registration Statement
and Prospectus and all amendments and supplements thereto, and of any Blue Sky
Survey and Legal Investment Survey, (vii) the printing and delivery to you, in
such quantities as you may reasonably request, of copies of the Pooling and
Servicing Agreement, (viii) the fees charged by the Rating Agencies for rating
the Offered Certificates, (ix) the fees and expenses incurred in connection with
the listing of the Offered Certificates on any securities exchange, (x) the fees
and expenses, if any, incurred with respect to the National Association of
Securities Dealers, Inc., including the fees and disbursements of your counsel
in connection therewith and (xi) the fees and expenses of the Trustee and its
counsel.
If this Agreement and the Terms Agreement is terminated by you in
accordance with the provisions of Section 4 or Section 9(i) hereof, Green Tree
shall reimburse you for all reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of your counsel.
SECTION 6. INDEMNIFICATION. (a) GTFFC and Green Tree, jointly and
severally, agree to indemnify and hold you harmless and each person, if any, who
controls you within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or arising out of any
19
untrue statement or alleged untrue statement of a material fact contained in the
Prospectus (or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, unless such untrue statement or omission or alleged untrue statement
or omission was made in reliance upon and in conformity with written information
furnished to GTFFC by you expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, (A) if such settlement is effected with
the written consent of GTFFC or (B) if such settlement is effected without the
written consent of GTFFC more than 30 days after receipt by GTFFC of a notice
from you, substantially reflecting the proposed terms of such settlement, to
which GTFFC has not responded prior to the date such settlement is effected; and
(iii) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by you), reasonably incurred in investigating,
preparing to defend or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above, which expenses shall
be reimbursed as they are incurred.
This indemnity agreement will be in addition to any liability which either
GTFFC or Green Tree may otherwise have. Insofar as this indemnity may permit
indemnification for liabilities under the 1933 Act of any person who controls
you within the meaning of Section 15 of the 1933 Act and who at the date of this
Agreement is a director, officer or controlling person of either GTFFC or Green
Tree, such indemnity agreement is subject to the undertaking of GTFFC in the
Registration Statement.
(b) You agree to indemnify and hold harmless each of GTFFC and Green Tree,
each director of GTFFC or Green Tree, each of GTFFC's officers who signed the
Registration Statement, and each person, if any, who controls either GTFFC or
Green Tree within the meaning of Section 15 of the 1933 Act against any and all
loss, liability, claim, damage and expense described in the
20
indemnity contained in subsection (a) of this Section, but only with respect to
untrue statements or omissions or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to GTFFC by you expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto). This indemnity agreement will be in addition
to any liability that you may otherwise have.
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it with respect to which indemnity may be
sought hereunder but failure to so notify an indemnifying party shall not
relieve it from any liability that it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense in
the defense of such action. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in addition to local
counsel) for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, GTFFC and Green Tree
on the one hand, and you, on the other, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by you, GTFFC and Green Tree (i) in such
proportion as shall be appropriate to reflect the relative benefit received by
you, as represented by the percentage that your discount or discounts on the
cover of the Prospectus bears to the initial public offering price or prices as
set forth thereon, and GTFFC and Green Tree, as applicable, shall be responsible
for the balance; or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the benefit referred to in clause (i) above but also the relative fault of
GTFFC and Green Tree, as applicable, on the one hand and you on the other with
respect to statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation and, PROVIDED FURTHER, you shall not be
21
required to contribute any amount in excess of the amount by which the total
price of the Offered Certificates purchased by you pursuant to the Terms
Agreement exceeds the amount of any damages which you have otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. For purposes of this Section, each person, if any,
who controls you within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as you and each director of GTFFC or Green Tree,
each officer of GTFFC who signed the Registration Statement, and each person, if
any, who controls GTFFC or Green Tree within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as GTFFC and Green Tree.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of Officers of GTFFC or Green Tree submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
termination of this Agreement, or any investigation made by or on behalf of you
or any person who controls you, or by or on behalf of GTFFC or Green Tree and
shall survive delivery of any Offered Certificates to you.
SECTION 9. TERMINATION OF AGREEMENT. You may terminate this Agreement and
the Terms Agreement, immediately upon notice to GTFFC, at any time at or prior
to the Closing Time (i) if there has been, since the date of the Terms Agreement
or since the respective dates as of which information is given in the
Registration Statement or the Prospectus any change, or any development
involving a prospective change in, or affecting, the condition, financial or
otherwise, earnings, affairs or business of GTFFC or Green Tree whether or not
arising in the ordinary course of business, which in your judgment would
materially impair the market for, or the investment quality of, the Offered
Certificates, or (ii) if there has occurred any outbreak of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in your judgment, impracticable to market the
Offered Certificates or enforce contracts for the sale of the Offered
Certificates, or (iii) if trading generally on either the New York Stock
Exchange or the American Stock Exchange has been suspended, or minimum or
maximum prices for securities have been required, by either of said exchanges or
by order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal, Minnesota or New York
authorities. In the event of any such termination, (A) the covenants set forth
in Section 3 with respect to the offering of the Offered Certificates shall
remain in effect so long as you own any Offered Certificates purchased pursuant
to the Terms
22
Agreement and (B) the covenant set forth in Section 3(c), the provisions of
Section 5, the indemnity agreement set forth in Section 6, and the contribution
provisions set forth in Section 7, and the provisions of Sections 8 and 13 shall
remain in effect.
SECTION 10. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to you shall be
directed to you at the respective addresses set forth on the first page hereof,
attention of the Syndicate Department. Notices to GTFFC shall be directed to
Green Tree Floorplan Funding Corp., 500 Landmark Towers, 000 Xx. Xxxxx Xxxxxx,
Xxxxx Xxxx, Xxxxxxxxx, 00000-0000, Attention of the Secretary, with a copy to
the Treasurer. Notices to Green Tree shall be directed to Green Tree Financial
Corporation, 0000 Xxxxxxxx Xxxxxx, 000 Xx. Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxx
00000-0000, attention of the Secretary, with a copy to the Treasurer.
SECTION 11. PARTIES. This Agreement and the Terms Agreement shall inure to
the benefit of and be binding upon you, GTFFC and Green Tree, and their
respective successors. Nothing expressed or mentioned in this Agreement or the
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives any legal or
equitable right, remedy or claim under or with respect to this Agreement or the
Terms Agreement or any provision herein or therein contained. This Agreement and
the Terms Agreement and all conditions and provisions hereof or thereof are
intended to be for the sole and exclusive benefit of the parties and their
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives (to the extent of their rights as
specified herein and therein) and for the benefit of no other person, firm or
corporation. No purchaser of Offered Certificates from you shall be deemed to be
a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. This Agreement and the Terms Agreement
shall be governed by the laws of the State of New York. Specified times of day
refer to New York City time.
SECTION 13. COUNTERPARTS. This Agreement and the Terms Agreement may be
executed in counterparts, each of which shall constitute an original of any
party whose signature appears on it, and all of which shall together constitute
a single instrument.
23
SECTION 14. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITER. You
represent and warrant as of the date hereof, as of the Representation Date and
as of the Closing Time as follows:
(a) You have not offered or sold and, prior to the expiry of the
period of six months from the Closing Date, you will not offer or sell any
Class A or Class B Certificates to persons in the United Kingdom, except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulation
1998;
(b) You have complied and will comply with all applicable provisions
of the Financial Services Act 1986 with respect to anything done by it in
relation to the Class A or Class B Certificates in, from or otherwise
involving the United Kingdom; and
(c) You have only issued or passed on and will only issue or pass on
in the United Kingdom any document received by it in connection with the
issue of the Class A or Class B Certificates to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1995, or is a person to whom such
document may otherwise lawfully be issued or passed on.
24
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you, GTFFC
and Green Tree in accordance with its terms.
Very truly yours,
GREEN TREE FLOORPLAN FUNDING CORP.
By
----------------------------------
Name: [ ]
Title:[ ]
GREEN TREE FINANCIAL CORPORATION
By
----------------------------------
Name: [ ]
Title:[ ]
CONFIRMED AND ACCEPTED, as of
the date first above written:
X.X. XXXXXX SECURITIES INC.
By
----------------------------------
Name: [ ]
Title:[ ]
25
$400,400,000
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1998-1, Class A
and
$20,475,000
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1998-1, Class B
EXHIBIT A
GREEN TREE FLOORPLAN RECEIVABLES MASTER TRUST
FORM OF TERMS AGREEMENT
Dated: April __, 1998
To: Green Tree Financial Corporation, ("GreenTree"),
Green Tree Floorplan Funding Corp. ("GTFFC")
Re: Underwriting Agreement dated April __, 1998
TERMS OF THE CERTIFICATES:
Original
Principal Certificate
AMOUNT RATE
------------- -------------------------------------
Class A $400,400,000 the lesser of (i) one-month LIBOR
determined as of the second LIBOR
business day prior to the relevant
Interest Accrual Period plus ___% per
annum or (ii) the Net Receivables Rate
Class B $20,475,000 the lesser of (i) one-month LIBOR
determined as of the second LIBOR
business day prior to the relevant
Interest Accrual Period plus ___% per
annum or (ii) the Net Receivables Rate
SERVICER:
Green Tree Financial Corporation (in such capacity, the "Servicer")
PURCHASE PRICE:
The purchase price payable by X.X. Xxxxxx Securities Inc. ("X.X. Xxxxxx")
for the Class A Certificates is ______% of the principal amount of the Class A
Certificates plus accrued interest, if any, at the Class A Certificate Rate from
April __, 1998. X.X. Xxxxxx shall purchase all of the Class A Certificates.
The purchase price payable by X.X. Xxxxxx for the Class B Certificates is
____% of the principal amount of the Class B Certificates plus accrued interest,
if any, at the Class B Certificate Rate from April __, 1998. X.X. Xxxxxx shall
purchase all of the Class B Certificates.
UNDERWRITING COMMISSION:
Notwithstanding anything to the contrary in the Underwriting Agreement, no
additional underwriting commission shall be payable by GTFFC to X.X. Xxxxxx in
connection with the purchase of the Offered Certificates.
Public Offering price (exclusive of any accrued interest) at which X.X.
Xxxxxx will initially sell the Offered Certificates:
Class A [100%]
Class B [100%]
CLOSING DATE AND LOCATION:
On or about April __, 1998, offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000.
A-2
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you, GTFFC
and Green Tree in accordance with its terms.
X.X. Xxxxxx Securities Inc.
By:
-----------------------------------
Name:
Title:
ACCEPTED:
GREEN TREE FINANCIAL CORPORATION
By:
-------------------------------
Name:
Title:
GREEN TREE FLOORPLAN FUNDING CORP.
By:
-------------------------------
Name:
Title:
A-3
