Exhibit 1.1
EXECUTION COPY
$440,000,000
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1998-2, Class A
and
$22,500,000
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1998-2, Class B
GREEN TREE FLOORPLAN RECEIVABLES MASTER TRUST
UNDERWRITING AGREEMENT
August 20, 1998
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center, North Tower
New York, NY 10281
Dear Sirs:
Green Tree Floorplan Funding Corp. ("GTFFC") is a Delaware corporation
with its principal place of business in Saint ▇▇▇▇, Minnesota. GTFFC has filed a
Registration Statement on Form S-1 (hereinafter referred to as the "Registration
Statement") relating to $440,000,000 (Floating Rate) Floorplan Receivable Trust
Certificates, Series 1998-2, Class A and $22,500,000 (Floating Rate) Floorplan
Receivable Trust Certificates, Series 1998-2, 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
1998-2 Series Supple-
ment to the Pooling and Servicing Agreement (the "Series Supplement"), dated as
of August 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." $21,250,000 principal amount of Class C Certificates (the "Class C
Certificates"), $16,250,000 principal amount of Class D Certificates (the "Class
D Certificates") and the Exchangeable Transferor's Certificate (together with
the Offered Certificates, the Class C Certificates and the Class D Certificates,
the "Certificates") will also be issued pursuant to the Pooling and Servicing
Agreement. The assets of the Trust will consist of (i) all wholesale receivables
(the "Receivables") generated from time to time in a portfolio of revolving
financing arrangements between Green Tree and certain dealers in consumer and
commercial products (the "Accounts") satisfying certain criteria described in
the Prospectus, (ii) all funds collected from Obligors in respect of the
Receivables, (iii) all right, title, and interest of GTFFC in, to, and under a
receivables purchase agreement (the "Purchase Agreement"), dated as of December
1, 1995 between GTFFC and Green Tree, (iv) all funds on deposit in the Trust
Accounts, (v) Recoveries, (vi) an assignment of a security interest in the
Collateral Security, (vii) GTFFC's rights under all Floorplan Agreements, and
(viii) proceeds of the foregoing. The Receivables will be purchased from Green
Tree by GTFFC pursuant to the Purchase Agreement and thereafter transferred to
the Trust. The forms of the Pooling and Servicing Agreement and the Series
Supplement have been filed as exhibits to the Registration Statement.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement and the Purchase Agreement
(together, the "Designated Agreements").
The Certificates are more fully described in a Registration Statement
that GTFFC has furnished to you. The terms "you" or "Underwriters" as used
herein, unless the context otherwise requires, shall mean you, acting severally
and not jointly under this Agreement. The term "Representative" refers to ▇.▇.
▇▇▇▇▇▇ Securities Inc. acting as Representative of the Underwriters.
The offering of the Offered Certificates will be made through you.
GTFFC and Green Tree will also enter into an agreement (the "Terms Agreement")
providing for the sale of such Offered Certificates to, and the purchase thereof
by, you, severally and not jointly. The Terms Agreement shall specify, among
other things, the price or prices at which the Offered Certificates are to be
purchased by the Underwriters from the Trust and the initial public offering
price or prices or the method by which the price or prices at which the Offered
Certificates are to be sold will be determined. The Terms
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Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between you and GTFFC. The offering of the Offered Certificates will be governed
by this Agreement, as supplemented by the Terms Agreement.
GTFFC has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (Nos. ▇▇▇-▇▇▇▇▇-▇▇ and
333-59865) 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 August 19, 1998 (the "Effective Date"),
including the exhibits thereto, is referred to herein as the "Registration
Statement," and the prospectus dated August 20, 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 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 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
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date hereof, did not and does not, and as of the Representation Date
and the Closing Time will not, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, as amended or supplemented on the Effective Date and on the
date hereof, did not and does not, and as amended or supplemented as of
the Representation Date and the Closing Time will not, contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in, or omissions from, the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to GTFFC in writing by any Underwriter through
the Representative expressly for use in the Registration Statement or
Prospectus. There are no contracts or documents of GTFFC which are
required to be filed as exhibits to the Registration Statement pursuant
to the 1933 Act or the Regulations which have not been so filed or
incorporated by reference therein.
(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 each of GTFFC and Green Tree may be a party to; and
each of GTFFC and Green Tree 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 is 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 may materially and adversely
affect the properties or assets thereof.
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(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 necessary corporate action on the part
of GTFFC and Green Tree, respectively; and neither the issuance and
sale of the Offered Certificates to the Underwriters, nor the execution
and delivery of this Agreement, the Terms Agreement or the Designated
Agreements by GTFFC or Green Tree, nor the consummation by GTFFC or
Green Tree of any of the transactions therein contemplated, nor
compliance by GTFFC or Green Tree with the provisions hereof or
thereof, will materially conflict with or result in a material breach
of, or constitute a material default under, any of the provisions of
any law, governmental rule, regulation, judgment, decree or order
binding on GTFFC or Green Tree or their respective properties or the
certificate of incorporation or by-laws of GTFFC or Green Tree, or any
of the provisions of any indenture, mortgage, contract or other
instrument to which GTFFC or Green Tree is a party or by which each 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 each of 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 each of 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)
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as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(g) As of the Closing Time, the Certificates will have been
duly and validly authorized, and, when executed and authenticated as
specified in the Pooling and Servicing Agreement, will be validly
issued and outstanding and will 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.
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(k) Neither GTFFC, Green Tree nor the Trust will be subject to
registration as an "investment company" under the Investment Company
Act of 1940, as amended (the "1940 Act").
(l) The Certificates and the Designated Agreements conform in
all material respects to the descriptions thereof contained in the
Prospectus.
(m) At the Closing Time, the Offered Certificates shall have
received the certificate ratings specified in the Terms Agreement.
(n) At the Closing Time, each of the representations and
warranties of GTFFC and Green Tree set forth in any of the Designated
Agreements will be true and correct.
SECTION 2. Purchase and Sale. The commitment of the Underwriters to
purchase the Offered Certificates pursuant to the Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
Payment of the purchase price for, and delivery of, the Offered
Certificates to be purchased by you shall be made at the office of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 of the
purchase price for the Offered Certificates shall be made to or at the direction
of GTFFC, in immediately available Federal funds wired to such bank as may be
designated by GTFFC. The Offered Certificates shall be in such denominations
specified by the Representative and registered in the name of Cede & Co., unless
the Representative shall otherwise specify in writing at least two business days
prior to the Closing Time. The Offered Certificates, which may be in temporary
form, will be made available for examination and packaging by you no later than
12:00 noon on the first business day prior to the Closing Time.
SECTION 3. Covenants of GTFFC and Green Tree. GTFFC and Green Tree
covenant with you as follows:
(a) Immediately following the execution of this Agreement and
the Terms Agreement, GTFFC will prepare the Prospectus setting forth
the principal amount of the Offered Certificates, the price at which
the Offered Certificates are to be purchased by you, either the initial
public offering price or the method by which the price at which the
7
Offered Certificates are to be sold will be determined, the selling
concession(s) and reallowance(s), if any, and such other information as
you and GTFFC deem appropriate in connection with the offering of the
Offered Certificates. GTFFC will, to the extent required by the
Regulations, promptly transmit copies of the Prospectus to the
Commission for filing pursuant to Rule 424 under the 1933 Act and will
furnish to you as many copies of the Prospectus as you shall reasonably
request.
(b) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Offered
Certificates by you, any event shall occur or condition exist as a
result of which it is necessary, in the opinion of your counsel,
counsel for GTFFC, or otherwise, to further amend or supplement the
Prospectus in order that the 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 with 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
8
comments from the Commission with respect to the Registration Statement
or the Prospectus, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or suspension of the
qualification of the Certificates or the initiation of any proceedings
for that purpose. GTFFC will make every reasonable effort to prevent
the issuance of any such stop order and, if any such stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(e) GTFFC will deliver to you as many signed and as many
conformed copies of the Registration Statement (as originally filed)
and of each amendment thereto (including 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.
(g) The Servicer will file the Settlement Statement on Form
8-K for a period of twelve months following the applicable Closing
Time.
SECTION 4. Conditions of Underwriter's Obligations. The obligations of
the Underwriters to purchase the Offered Certificates pursuant to the Terms
Agreement are subject to the accuracy of the representations and warranties on
the part of GTFFC and Green Tree herein contained, to the accuracy of the
statements of officers of GTFFC and Green Tree made pursuant hereto, to the
performance by each of GTFFC and Green Tree of all of its obligations hereunder
and to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 4:00 p.m., New York time, on the day following the date of this Agreement
or such later date as shall have been consented to by the Representative; and at
the Closing Time (i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued or proceedings therefor ini-
9
tiated 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
Regulations within the prescribed time period, and prior to Closing Time GTFFC
shall have provided evidence satisfactory to the Representative of such timely
filing, or a post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirements of
Rule 430A of the Regulations.
(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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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'
10
or secured parties' rights generally, (B) such enforcement may
be limited by general principles of equity, including (without
limitation) concepts of materiality, reasonableness, good
faith and fair dealing, and other similar doctrines affecting
the enforceability of agreements generally (regardless of
whether enforcement is sought in a proceeding in equity or at
law), and (C) the enforceability as to rights to indemnity
thereunder is subject to the effect of federal and state
securities laws and public policy relating thereto.
(iv) The Designated Agreements have been duly
authorized, executed and delivered by GTFFC and Green Tree,
and are the valid and binding obligations of GTFFC and Green
Tree enforceable against GTFFC and Green Tree in accordance
with their respective terms, except that (A) such enforcement
may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (B) such
enforcement may be limited by general principles of equity
(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,
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in the case of the Offered Certificates, paid for pursuant to
this Agreement and the Terms Agreement, will be duly issued
and entitled to the benefits of the Pooling and Servicing
Agreement.
(vii) The Receivables are either "chattel
paper", "accounts" or "general intangibles" under the UCC. The
Purchase Agreement creates, in favor of GTFFC, a valid
security interest (as such term is defined in Section 1-201 of
the UCC) in the Receivables now existing and hereafter created
that are either chattel paper or accounts, which security
interest, if characterized as a transfer for security, will
secure the "Secured Obligations" (as defined in the Pooling
and Servicing Agreement) and, in the case of Receivables that
are general intangibles, is effective to transfer Green Tree's
ownership interest in such Receivables to GTFFC. The Pooling
and Servicing Agreement creates, in favor of the Trustee for
the benefit of the Certificateholders, a valid security
interest (as such term is defined in Section 1-201 of the UCC)
in the Receivables now existing and hereafter created, which
security interest, if characterized as a transfer for
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
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required to be obtained by GTFFC or Green Tree for the
consummation by GTFFC or Green Tree of the transactions
contemplated by this Agreement, the Terms Agreement or the
Designated Agreements, except such as may be required under
the 1933 Act or the Regulations, or state securities or Blue
Sky laws.
(ix) The Registration Statement is effective
under the 1933 Act and, to the best of such counsel's
knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued
under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(x) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended.
(xi) To the best of such counsel's knowledge,
there are no contracts or documents which are required to be
filed as exhibits to the Registration Statement pursuant to
the 1933 Act or the Regulations thereunder which have not been
so filed or incorporated by reference.
(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
13
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 Designated
Agreements and the Underwriting Agreement conform in all
material respects to the descriptions thereof contained in the
Prospectus.
(xvii) The Registration Statement and the
Prospectus (other than the financial statements and other
financial, statistical and numerical information included
therein, as to which no opinion need be rendered) as of their
respective effective or issue dates, complied as to form in
all material respects with the requirements of the 1933 Act
and the Regulations thereunder.
(xviii) The execution, delivery and performance by
GTFFC or Green Tree of the Designated Agreements do not
require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action in
respect of any federal, state or other 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
14
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, nothing has come to their attention that
leads such counsel to believe that the Registration Statement, when it became
effective, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Registration Statement and the
Prospectus on the date of this Agreement and the Terms Agreement contained, and
the Prospectus at Closing Time contains, any untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that such counsel need express no view with respect
to the financial statements, schedules and other financial, statistical and
numerical data included in or incorporated by reference into the Registration
Statement or the Prospectus.
Such counsel may state that they are admitted to practice only in the
State of Minnesota, that they are not admitted to the Bar in any other State and
are not experts in the law of any 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 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, 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
15
character of the business owned or leased by it makes such
qualification necessary, except where the failure to be so
qualified would not have a material adverse effect on the
financial condition of Green Tree.
(iii) Each of GTFFC and Green Tree possesses all
material licenses, certificates, authorities or permits issued
by the appropriate state or federal regulatory agencies or
bodies necessary to conduct the business now conducted by it
and as described in the Prospectus, except to the extent that
the failure to have such licenses, certificates, authorities
or permits does not have a material adverse effect on the
Receivables or the Certificates or the financial condition of
GTFFC or Green Tree, and neither GTFFC nor Green Tree has
received any notice of proceedings relating to the revocation
or modification of any such license, certificate, authority or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of its business, operations or
financial condition.
(iv) At the time of the transfer of the
Receivables to GTFFC, Green Tree owned the Receivables free
and clear of any lien, security interest, charge or other
interests of others, except such liens as are permitted under
the Pooling and Servicing Agreement.
(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
16
transactions contemplated in the Pooling and Servicing
Agreement.
(iv) No consent, approval or authorization of,
or registration, declaration or filing with, any court or
governmental agency or body of the jurisdiction of
incorporation of the Trustee is required for the execution,
delivery or performance by the Trustee of the Pooling and
Servicing Agreement.
In rendering such opinion, such counsel may rely, as to matters of
fact, to the extent deemed proper and stated therein, on certificates of
responsible officers of the Trustee or public officials.
(4) The favorable opinion, dated as of the Closing Time, of
counsel for the Underwriters with respect to the issue and sale of the
Certificates, the Registration Statement, this Agreement, the
Prospectus and other related matters as you may require.
(c) You shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel
for GTFFC, an opinion, dated as of the Closing Time and satisfactory in form and
substance to the Representative and to counsel to the Underwriters, to the
effect that the 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.
17
(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 time, in the form heretofore agreed to.
(f) At the Closing Time you shall have received, addressed to you, any
additional opinions delivered by counsel pursuant to the request of the Rating
Agencies rating the Offered Certificates.
(g) The Representative shall have received facsimile confirmation from
a filing service that (i) a copy of the UCC-1 financing statement on Form UCC-1
has been filed with the Secretary of State of the State of Minnesota with
respect to the transfer of the Receivables by Green Tree to GTFFC pursuant to
the Purchase Agreement, identifying the Receivables as collateral and naming
Green Tree as debtor and GTFFC as the secured party and (ii) a copy of the UCC-1
financing statement on Form UCC-1 has been filed with the Secretary of State of
the State of Minnesota with respect to the transfer of the Receivables by GTFFC
to the Trustee pursuant to the Pooling and Servicing Agreement, identifying the
Receivables as collateral and naming GTFFC as debtor and the Trustee as the
secured party.
(h) At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they reasonably may require for
the purpose of enabling them to pass upon the issuance and sale of the Offered
Certificates as herein contemplated and the related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions herein contained; and
all proceedings taken by GTFFC and Green Tree in connection with the issuance
and sale of the Certificates as herein contemplated shall be satisfactory in
form and substance to you and counsel for the Underwriters.
(i) As of the Closing Time, each of the Designated Agreements will have
been duly authorized, executed and delivered by, and will constitute a legal,
valid and binding obligation of, and will be enforceable against each of GTFFC
and Green Tree, in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally, and as to enforceability, to general principles of
equity (regardless of 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 ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. shall have delivered a letter to GTFFC
stating that the Class A Certificates are rated "AAA" and the Class B
Certificates are
18
rated "A" and ▇▇▇▇▇'▇ Investor Service, Inc. shall have delivered a letter to
GTFFC stating that the Class A Certificates are rated "Aaa" and the Class B
Certificates are rated "A3" 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-."
In addition to the above conditions, Green Tree and GTFFC understand
that Green Tree and ▇▇▇▇▇▇ Guaranty Trust Company of New York ("▇▇▇▇▇▇") are
parties to the 1992 ISDA Master Agreement (Multi-currency Cross-border) and the
confirmation thereunder that relates to the Series 1998-A Certificates and the
Series 1995-1 Certificates, dated August 3, 1998 (the "Green Tree Swap
Agreement"). Green Tree and GTFFC agree that, pursuant to the Green Tree Swap
Agreement, ▇▇▇▇▇▇ will be permitted to retain proceeds from the issuance of the
Offered Certificates if Green Tree fails to satisfy any of its obligations under
the Green Tree Swap Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement and the Terms
Agreement may be terminated by you by notice to GTFFC at any time at or prior to
the Closing Time, and such termination shall be without liability of any party
to any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. Green Tree will pay all expenses
incident to the performance of the obligations of GTFFC or Green Tree under this
Agreement, including without limitation those related to (i) the filing of the
Registration Statement and all amendments thereto, (ii) the printing and
delivery to the Underwriters, in such quantities as you may reasonably request,
of copies of this Agreement, the Terms Agreement, any agreements among
underwriters and selling agreements and the Underwriters' questionnaires and
powers of attorney, (iii) the preparation, issuance and delivery of the Offered
Certificates to the Underwriters, (iv) the fees and disbursements of GTFFC's and
Green Tree's counsel and accountants, (v) the qualification of the Offered
Certificates under securities and Blue Sky laws and the determination of the
eligibility of the Offered Certificates for investment in accordance with the
provisions of Section 3(g), including filing fees, and the fees and
disbursements of your counsel in connection therewith and in connection with the
preparation of any Blue Sky Survey and Legal Investment Survey, (vi) the
printing and delivery to the Underwriters, in such quantities as you may
reasonably request, hereinafter stated, of copies of the Registration Statement
and Prospectus and all amendments and supplements thereto, and of any Blue Sky
Survey and Legal Investment Survey, (vii) the printing and delivery to the
Underwriters, in such quantities as you may reasonably
19
request, of copies of the Pooling and Servicing Agreement, (viii) the fees
charged by the Rating Agencies for rating the Offered Certificates, (ix) the
fees and expenses incurred in connection with the listing of the Offered
Certificates on any securities exchange, (x) the fees and expenses, if any,
incurred with respect to the National Association of Securities Dealers, Inc.,
including the fees and disbursements of counsel for you in connection therewith
and (xi) the fees and expenses of the Trustee and its counsel.
If this Agreement and the Terms Agreement is terminated by you in
accordance with the provisions of Section 4 or Section 9(i) hereof, Green Tree
shall reimburse you for all reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 6. Indemnification. (a) GTFFC and Green Tree, jointly and
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless such untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information furnished to GTFFC by
any Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, (A) if such settlement is effected with
the written consent of GTFFC, or (B) if such settlement is effected without the
written consent of GTFFC more than 30 days after receipt by GTFFC of a notice
from the Underwriters, substantially reflecting the proposed terms of such
20
settlement, to which GTFFC has not responded prior to the date
such settlement is effected; and
(iii) against any and all expenses whatsoever (including the
fees and disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing to defend or defending against any litigation,
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.
(b) Each Underwriter severally agrees to indemnify and hold harmless
each of GTFFC and Green Tree, each director of GTFFC and Green Tree, each of
GTFFC's officers who signed the Registration Statement, and each person, if any,
who controls either GTFFC or Green Tree within the meaning of Section 15 of the
1933 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, but only
with respect to untrue statements or omissions or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to GTFFC by any Underwriter
through the Representative expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto). This indemnity agreement will be in addition to any liability that
such Underwriter may otherwise have.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it with respect to which
indemnity may be sought hereunder, although 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
21
to be unenforceable by the indemnified parties although applicable in accordance
with its terms, GTFFC and Green Tree on the one hand, and the Underwriters on
the other, shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by GTFFC and Green Tree and one or more of the Underwriters (i) in such
proportion as shall be appropriate to reflect the relative benefit received by
the Underwriters, as represented by the percentage that the Underwriting
discount or discounts on the cover of the Prospectus bears to the initial public
offering price or prices as set forth thereon, and GTFFC and Green Tree, as
applicable, shall be responsible for the balance; or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the benefit referred to in
clause (i) above but also the relative fault of GTFFC and Green Tree, as
applicable, on the one hand and the Underwriters on the other with respect to
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations, provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation and, provided further, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price of the
Offered Certificates purchased by such Underwriter pursuant to the Terms
Agreement exceeds the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. For purposes of this Section, each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Underwriters and each
director of GTFFC and 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 the Underwriters or controlling person thereof, or by or on behalf
of GTFFC or Green Tree and shall survive delivery of any Offered Certificates to
the Underwriters.
22
SECTION 9. Termination of Agreement. The Representative may terminate
this Agreement and the Terms Agreement, immediately upon notice to GTFFC, at any
time at or prior to the Closing Time (i) if there has been, since the date of
the Terms Agreement or since the respective dates as of which information is
given in the Registration Statement or the Prospectus, any change, or any
development involving a prospective change in, or affecting, the condition,
financial or otherwise, earnings, affairs or business of GTFFC or Green Tree
whether or not arising in the ordinary course of business, which in your
judgment would materially impair the market for, or the investment quality of,
the Offered Certificates, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or if there has occurred
any outbreak of hostilities or other calamity or crisis the effect of which on
the financial markets of the United States is such as to make it, in the
judgment of the Representative, impracticable to market the Offered Certificates
or enforce contracts for the sale of the Offered Certificates, or (iii) if
trading in any securities of Green Tree has been suspended or limited by the
Commission or the New York Stock Exchange, or if trading generally on either the
New York Stock Exchange or the American Stock Exchange has been suspended, or
minimum or maximum prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either Federal, Minnesota or New
York authorities. In the event of any such termination, (A) the covenants set
forth in Section 3 with respect to the offering of the Offered Certificates
shall remain in effect so long as the Underwriters own any Offered Certificates
purchased pursuant to the Terms Agreement, and (B) the covenant set forth in
Section 3(c), the provisions of Section 5, the indemnity agreement set forth in
Section 6, the contribution provisions set forth in Section 7, and the
provisions of Sections 8 and 13 shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters participating in the offering of the Offered Certificates
shall fail at the Closing Time to pur- chase the Offered Certificates which it
or they are obligated to purchase hereunder and under the Terms Agreement (the
"Defaulted Certificates"), then the Representative shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Certificates in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, you have not completed such arrangements
within such 24-hour period, then:
(1) if the aggregate principal amount of Defaulted
Certificates does not exceed 10% of the aggregate principal
23
amount of the Offered Certificates to be purchased pursuant to such
Terms Agreement, the non-defaulting Underwriters shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all such non-defaulting Underwriters, or
(2) if the aggregate principal amount of Defaulted
Certificates exceeds 10% of the aggregate principal amount of the
Certificates to be purchased pursuant to such Terms Agreement, the
Terms Agreement shall terminate, without any liability on the part of
any non-defaulting Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriters from liability with respect to any default of such Underwriters
under this Agreement and the Terms Agreement.
In the event of a default by any Underwriters as set forth in this
Section, either the Representative or GTFFC shall have the right to postpone the
Closing Time for a period of time not exceeding seven days in order that any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements may be effected.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you at the respective addresses set forth on
the first page hereof, attention of the Syndicate Department. Notices to GTFFC
shall be directed to Green Tree Floorplan Funding Corp., 500 Landmark Towers,
▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, Attention of the
Secretary, with a copy to the Treasurer. Notices to Green Tree shall be directed
to Green Tree Financial Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of the Secretary, with a copy to the
Treasurer.
SECTION 12. Parties. This Agreement and the Terms Agreement shall inure
to the benefit of and be binding upon you, GTFFC, Green Tree and each
Underwriter who becomes a party to this Agreement and the Terms Agreement, and
their respective successors. Nothing expressed or mentioned in this Agreement or
the Terms Agreement is intended or shall be construed to give any person, firm
or corporation, other than the parties hereto or thereto and their respective
successors and the controlling 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
24
Agreement or the Terms Agreement or any provision herein or therein contained.
This Agreement and the Terms Agreement and all conditions and provisions hereof
or thereof are intended to be for the sole and exclusive benefit of the parties
and their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives (to the extent of their
rights as specified herein and therein) and for the benefit of no other person,
firm or corporation. No purchaser of Offered Certificates from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement and the
Terms Agreement shall be governed by the laws of the State of New
York. Specified times of day refer to New York City time.
SECTION 14. Counterparts. This Agreement and the Terms Agreement may be
executed in counterparts, each of which shall constitute an original of any
party whose signature appears on it, and all of which shall together constitute
a single instrument.
SECTION 15. Representations and Warranties of the Underwriters. Each of
the Underwriters represents and warrants as of the date hereof, as of the
Representation Date and as of the Closing Time as follows:
(a) Such Underwriter has not offered or sold and, prior to the
expiry of the period of six months from the Closing Date, such
Underwriter 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) Such Underwriter has 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) Such Underwriter has 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
25
is a person to whom such document may otherwise lawfully be
issued or passed on.
26
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 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
GREEN TREE FINANCIAL CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
27
EXHIBIT A
$440,000,000
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1998-2, Class A
and
$22,500,000
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1998-2, Class B
GREEN TREE FLOORPLAN RECEIVABLES MASTER TRUST
FORM OF TERMS AGREEMENT
Dated: August 20, 1998
To: Green Tree Financial Corporation, ("GreenTree"),
Green Tree Floorplan Funding Corp. ("GTFFC")
Re: Underwriting Agreement dated August 20, 1998
Terms of the Certificates:
Original
Principal Certificate
Amount Rate
------ ----
Class A $440,000,000 the lesser of (i) one-
month LIBOR determined as
of the second LIBOR
business day prior to the
relevant Interest Accrual
Period plus 0.055% per
annum or (ii) the Net
Receivables Rate
Class B $ 22,500,000 the lesser of (i) one-
month LIBOR determined as
of the second LIBOR
business day prior to the
relevant Interest Accrual
Period plus 0.225% per
annum or (ii) the Net
Receivables Rate
1
Servicer:
---------
Green Tree Financial Corporation (in such capacity, the
"Servicer")
Purchase Price:
---------------
The purchase price payable by the Underwriters for the Class A
Certificates is 99.651563% of the principal amount of the Class A Certificates
plus accrued interest, if any, at the Class A Certificate Rate from September
14, 1998. ▇.▇. ▇▇▇▇▇▇ Securities Inc. shall purchase $220,000,000 principal
amount of the Class A Certificates and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated shall purchase $220,000,000 principal amount of the Class A
Certificates.
The purchase price payable by ▇.▇. ▇▇▇▇▇▇ for the Class B Certificates
is 99.547656% of the principal amount of the Class B Certificates plus accrued
interest, if any, at the Class B Certificate Rate from September 14, 1998. ▇.▇.
▇▇▇▇▇▇ shall purchase $11,250,000 principal amount of the Class B Certificates
and ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated shall purchase
$11,250,000 principal amount 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 the
Underwriters in connection with the purchase of the Offered Certificates.
Public Offering price (exclusive of any accrued interest) at which the
Underwriters will initially sell the Offered Certificates:
Class A 99.851563%
Class B 99.847656%
Closing Date and Location:
--------------------------
On or about September 14, 1998, offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
ACCEPTED:
GREEN TREE FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
GREEN TREE FLOORPLAN FUNDING CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
3