Exhibit 2.3
FINAL
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GREEN TREE FLOORPLAN FUNDING CORP.
Buyer
and
GREEN TREE FINANCIAL CORPORATION
Seller
RECEIVABLES PURCHASE AGREEMENT
Dated as of December 1, 1995
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Table of Contents
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Page
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ARTICLE I DEFINITIONS.................................................... 1
SECTION 1.1. Definitions............................................. 1
SECTION 1.2. Other Definitional Provisions........................... 1
ARTICLE II CONVEYANCE OF RECEIVABLES...................................... 2
SECTION 2.1. Conveyance of Receivables............................... 2
SECTION 2.2. Representations and Warranties of the Seller
Relating to the Seller and the Agreement................ 4
SECTION 2.3. Representations and Warranties of the Seller
Relating to the Receivables............................. 6
SECTION 2.4. Addition of Accounts.................................... 8
SECTION 2.5. Covenants of the Seller................................. 10
SECTION 2.6. Removal of Eligible Accounts............................ 11
SECTION 2.7. Removal of Ineligible Accounts.......................... 12
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES.................... 13
SECTION 3.1. Acceptance of Appointment and Other Matters
Relating to the Servicer................................ 13
SECTION 3.2. Servicing Compensation.................................. 14
ARTICLE IV RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS.......................... 14
SECTION 4.1. Allocations and Applications of Collections
and Other Funds......................................... 14
ARTICLE V OTHER MATTERS RELATING TO THE SELLER........................... 14
SECTION 5.1. Merger or Consolidation of, or Assumption of,
the Obligations of the Seller........................... 14
SECTION 5.2. Seller's Indemnification of the Buyer................... 14
ARTICLE VI TERMINATION.................................................... 15
ARTICLE VII MISCELLANEOUS PROVISIONS....................................... 16
SECTION 7.1. Amendment............................................... 16
SECTION 7.2. Protection of Right, Title and Interest to Receivables.. 17
SECTION 7.3. Limited Recourse........................................ 18
SECTION 7.4. No Petition............................................. 18
SECTION 7.5. GOVERNING LAW........................................... 18
SECTION 7.6. Notices................................................. 18
SECTION 7.7. Severability of Provisions.............................. 18
SECTION 7.8. Assignment.............................................. 19
SECTION 7.9. Further Assurances...................................... 19
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SECTION 7.10. No Waiver; Cumulative Remedies.......................... 19
SECTION 7.11. Counterparts............................................ 19
SECTION 7.12. Third-Party Beneficiaries............................... 19
SECTION 7.13. Merger and Integration.................................. 19
SECTION 7.14. Headings................................................ 19
EXHIBITS
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Exhibit A Form of Assignment of Receivables in Additional Accounts........ A-1
Exhibit B Form of Opinion of Counsel regarding Amendments................. B-1
Exhibit C Form of Reassignment of Receivables in Removed Accounts......... C-1
Schedule 1 List of Accounts
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RECEIVABLES PURCHASE AGREEMENT, dated as of December 1, 1995, by and
between GREEN TREE FLOORPLAN FUNDING CORP., a Delaware corporation, as Buyer
("Buyer"), and GREEN TREE FINANCIAL CORPORATION, a Delaware corporation ("Green
Tree" or the "Seller"), as Seller.
W I T N E S S E T H:
WHEREAS the Seller in the ordinary course of its businesses finances the
purchase of floorplan inventory and other assets of dealers in, and
manufacturers and distributors of, commercial and consumer products, thereby
generating certain payment obligations;
WHEREAS the Seller wishes to sell certain of such existing and future
payment obligations from time to time to the Buyer; and
WHEREAS the Buyer desires to sell such payment obligations to the Green
Tree Floorplan Receivables Master Trust, pursuant to a Pooling and Servicing
Agreement dated as of December 1, 1995 (as the same may from time to time be
amended, supplemented or otherwise modified, the "Pooling and Servicing
Agreement"), among the Buyer, as transferor, Green Tree, as servicer, and
Norwest Bank Minnesota, National Association, as trustee (the "Trustee").
WHEREAS the Buyer is an Affiliate of the Seller.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used herein but not otherwise
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defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The rules of construction in Section 1.2 of the Pooling and
Servicing Agreement shall be applied to this Agreement. In addition, the term
"Agreement" means this Receivables Purchase Agreement, as the same may from time
to time be amended, supplemented or otherwise modified.
SECTION 1.2. Other Definitional Provisions.
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(a) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Article, Section, Schedule,
and Exhibit references are references to Articles, Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation."
(b) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1. Conveyance of Receivables. By execution of this Agreement,
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the Seller does hereby sell, transfer, assign, set over and otherwise convey,
without recourse (except as expressly provided herein), to the Buyer on the
first Closing Date, in the case of Initial Accounts, and on the applicable
Addition Date, in the case of Additional Accounts, all of its right, title and
interest in, to and under the Receivables in each Account and all Collateral
Security with respect thereto owned by the Seller at the close of business on
the Cut-off Date, in the case of the Initial Accounts, and on the applicable
Additional Cut-off Date, in the case of Additional Accounts, and all monies due
or to become due and all amounts received with respect thereto and all proceeds
(including "proceeds" as defined in Section 9-306 of the UCC as in effect in the
State of Minnesota and including Recoveries) thereof and all of the Seller's
rights, remedies, powers and privileges with respect to such Receivables under
the related Floorplan Agreements. Subject to Article VI, as of each Business
Day prior to the earlier of (x) the occurrence of an Insolvency Event as
specified in Section 9.2(a) of the Pooling and Servicing Agreement and (y) the
Trust Termination Date, on which Receivables are created in the Accounts (a
"Transfer Date"), the Seller does hereby sell, transfer, assign, set over and
otherwise convey, without recourse (except as expressly provided herein), to the
Buyer, all of its right, title and interest in, to and under the Receivables in
each Account (other than any Receivables created in any Removed Account from and
after the applicable Removal Date) and all Collateral Security with respect
thereto owned by the Seller at the close of business on such Transfer Date and
not theretofore conveyed to the Buyer, all monies due or to become due and all
amounts received with respect thereto and all proceeds (including "proceeds" as
defined in Section 9-306 of the UCC as in effect in the State of Minnesota and
including Recoveries) thereof and all of the Seller's rights, remedies, powers
and privileges with respect to such Receivables under the related Floorplan
Agreements. The foregoing sale, transfer, assignment, set-over and conveyance
and any subsequent sales, transfers, assignments, set-overs and conveyances do
not constitute, and are not intended to result in, the creation or an assumption
by the Buyer of any obligation of the Servicer, the Seller or any other Person
in connection with the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation under the Financing
Agreements or the Floorplan Agreements and any other obligation to any Dealer or
Manufacturer.
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On the Closing Date, pursuant to the terms of this Section 2.1, (i) the
Seller shall sell to the Buyer Receivables in the amount of $509,744,878.07,
together with the related Collateral Security and Floorplan Rights (defined
below). Subject to Article VI, the purchase price for the Receivables sold by
(a) the Seller to the Buyer on the Closing Date and (b) the Seller to the Buyer
on each Addition Date and on each Transfer Date thereafter shall be a price
agreed to by the Buyer and the Seller at the time of acquisition by the Buyer,
which price shall not, in the opinion of the Buyer, be materially less favorable
to the Buyer than prices for transactions of a generally similar character at
the time of the acquisition taking into account the quality of such Receivables
and other pertinent factors, including, without limitation, prevailing interest
rates; provided that such consideration shall in any event not be less than
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reasonably equivalent value therefor.
In connection with such contribution and sales, the Seller agrees to record
and file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) naming the Seller as "seller" and the
Buyer as "purchaser" thereon with respect to the Receivables now existing and
hereafter created for the sale of chattel paper, accounts or general intangibles
(as defined in Section 9-105 or 9-106 of the UCC as in effect in any state where
the Seller's or the Servicer's chief executive offices or books and records
relating to the Receivables are located) meeting the requirements of applicable
state law in such manner and in such jurisdictions as are necessary to perfect
the sale and assignment of the Receivables, the Collateral Security and all of
the Seller's rights, remedies, powers and privileges with respect to such
Receivables under the related Floorplan Agreements (the "Floorplan Rights") to
the Buyer, and to deliver a file-stamped copy of such financing statements or
other evidence of such filing to the Buyer on or prior to the first Closing
Date, in the case of Initial Accounts, and (if any additional filing is so
necessary) the applicable Addition Date, in the case of Additional Accounts. In
addition, the Seller shall cause to be timely filed in the appropriate filing
office any UCC-1 financing statement and continuation statement necessary to
perfect any sale of Receivables to the Buyer. The Buyer shall be under no
obligation whatsoever to file such financing statement, or a continuation
statement to such financing statement, or to make any other filing under the UCC
in connection with such contribution and sales. The parties hereto intend that
the transfers of Receivables effected by this Agreement be sales.
In connection with such contribution and sales, the Seller further agrees,
at its own expense, on or prior to the first Closing Date, in the case of
Initial Accounts, the applicable Addition Date, in the case of Additional
Accounts, and the applicable Removal Date, in the case of Removed Accounts, (a)
to indicate in its books and records, which may include computer files, that the
Receivables created in connection with the Accounts (other than Removed
Accounts) have been sold, and the Collateral Security and the Floorplan Rights
assigned, to the Buyer pursuant to this Agreement and sold to the Trust pursuant
to the Pooling and Servicing Agreement for the benefit of the Certificateholders
and the other Beneficiaries and (b) to deliver to the Buyer a computer file or
microfiche or written list containing a
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true and complete list of all such Accounts (other than Removed Accounts)
specifying for each such Account, as of the Cut-off Date, in the case of Initial
Accounts, and the applicable Additional Cut-off Date, in the case of Additional
Accounts, (i) its account number and (ii) the aggregate amount of Principal
Receivables in such Account. Such file or list, as supplemented from time to
time to reflect Additional Accounts and Removed Accounts, shall be marked as
Schedule 1 to this Agreement and is hereby incorporated into and made a part of
this Agreement.
In the event that such contributions, sales and assignments are deemed to
constitute a pledge of security for a loan or loans (the "Secured Obligations"),
it is the intent of this Agreement that the Seller shall be deemed to have
granted to the Buyer a first priority perfected security interest in all of the
Seller's right, title and interest to and under the Receivables, the Collateral
Security and all proceeds thereof and the Floorplan Agreements, and that this
Agreement shall constitute a security agreement under applicable law.
SECTION 2.2. Representations and Warranties of the Seller Relating to the
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Seller and the Agreement. The Seller hereby represents and warrants to the
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Buyer, as to itself and the Receivables being transferred and sold by it
hereunder, as of each Closing Date that:
(a) Organization and Good Standing. The Seller is a corporation duly
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organized and validly existing and in good standing under the laws of the State
of Delaware and has, in all material respects, full corporate power, authority
and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Agreement.
(b) Due Qualification. The Seller is duly qualified to do business
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and, where necessary, is in good standing as a foreign corporation (or is exempt
from such requirement) and has obtained all necessary licenses and approvals in
each jurisdiction in which the conduct of its business requires such
qualification except where the failure to so qualify or obtain licenses or
approvals would not have a material adverse effect on its ability to perform its
obligations hereunder.
(c) Due Authorization. The execution and delivery of this Agreement
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and the consummation of the transactions provided for or contemplated by this
Agreement have been duly authorized by the Seller by all necessary corporate
action on the part of the Seller and are within its corporate powers.
(d) No Conflict. The execution and delivery of this Agreement, the
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performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof, will not conflict with, result in
any breach of any of the material terms and provisions of, or constitute (with
or without
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notice or lapse of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust, or other instrument to which the
Seller is a party or by which it or its properties are bound.
(e) No Violation. The execution and delivery of this Agreement, the
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performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof applicable to the Seller, will not
conflict with or violate any material Requirements of Law applicable to the
Seller or conflict with, violate, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice of lapse of time
or both) a material default under any indenture, contract, agreement, mortgage,
deed of trust, or other instrument to which the Seller is a party or by which
the Seller is bound.
(f) No Proceedings. There are no proceedings or, to the best
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knowledge of the Seller, investigations, pending or threatened against the
Seller, before any Governmental Authority (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, (iii) seeking any determination or ruling that,
in the reasonable judgment of the Seller, would materially and adversely affect
the performance by the Seller of its obligations under this Agreement, (iv)
seeking any determination or ruling that would materially and adversely affect
the validity or enforceability of this Agreement or (v) seeking to affect
adversely the income tax attributes of the Trust under the United States federal
or any state income, single business or franchise tax systems.
(g) All Consents Required. All appraisals, authorizations, consents,
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orders, approvals or other actions of any Person or of any governmental body or
official required in connection with the execution and delivery of this
Agreement, the performance of the transactions contemplated by this Agreement,
and the fulfillment of the terms hereof or thereof, have been obtained.
(h) Enforceability. This Agreement constitutes a legal, valid and
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binding obligation of the Seller enforceable against the Seller in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in general
and except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(i) Record of Accounts. As of the first Closing Date, in the case of
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Initial Accounts, as of the applicable Addition Date, in the case of the
Additional Accounts, and, as of the applicable Removal Date, in the case of
Removed Accounts, Schedule 1 to this Agreement is an accurate and complete
listing in all material respects of all the Accounts as of the Cut-off Date, the
applicable Additional Cut-off Date or the applicable Removal Date, as the case
may be, and the information contained therein with respect to the identity of
such Accounts and the Receivables
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existing thereunder is true and correct in all material respects as of the Cut-
off Date, such applicable Additional Cut-off Date or such Removal Date, as the
case may be.
(j) Valid Transfer. This Agreement or, in the case of Additional
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Accounts, the related Assignment constitutes a valid sale, transfer and
assignment to the Buyer of all right, title and interest of the Seller in the
Receivables and the Collateral Security and the proceeds thereof. Upon the
filing of the financing statements described in Section 2.1 with the Secretary
of State of the State of Minnesota and, in the case of the Receivables hereafter
created and the proceeds thereof, upon the creation thereof, the Buyer shall
have a first priority perfected ownership interest in such property. Except as
otherwise provided in the Pooling and Servicing Agreement, neither the Seller
nor any Person claiming through or under the Seller has any claim to or interest
in the Trust Assets.
The representations and warranties set forth in this Section 2.2 shall
survive the transfer and assignment of the Receivables to the Buyer. Upon
discovery by the Seller or the Buyer of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other party.
In the event of any breach of any of the representations and warranties set
forth in this Section 2.2 and if, in connection therewith, the Buyer shall be
obligated to purchase the Certificateholders' Interest pursuant to Section 2.4
of the Pooling and Servicing Agreement, the Seller shall repurchase the
Receivables, the Collateral Security and Floorplan Rights respectively conveyed
by them and shall pay to the Buyer on the Business Day preceding the
Distribution Date on which such purchase of the Certificateholders' Interest is
to be made an amount equal to the purchase price for the Certificateholders'
Interest as specified in the Pooling and Servicing Agreement. The obligation of
the Seller to purchase the Receivables pursuant to this Section 2.2 shall
constitute the sole remedy against such Seller respecting an event of the type
specified in the first sentence of this paragraph available to the Buyer and to
the Investor Certificateholders (or the Trustee on behalf of the Investor
Certificateholders).
SECTION 2.3. Representations and Warranties of the Seller Relating to the
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Receivables.
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(a) Representations and Warranties. The Seller hereby represents and
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warrants to the Buyer, with respect to the Receivables conveyed by the Seller,
that:
(i) Each Receivable and all Collateral Security existing on the first
Closing Date or, in the case of Additional Accounts, on the applicable
Addition Date, and on each Transfer Date, has been conveyed to the Buyer
free and clear of any Lien other than any Permitted Lien.
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(ii) With respect to each Receivable and all Collateral Security
existing on the first Closing Date or, in the case of Additional Accounts,
on the applicable Addition Date, and on each Transfer Date, all consents,
licenses, approvals or authorizations of or registrations or declarations
with any Governmental Authority required to be obtained, effected or given
by the Seller in connection with the conveyance of such Receivable or
Collateral Security to the Buyer have been duly obtained, effected or given
and are in full force and effect.
(iii) On the Cut-off Date and each Closing Date, each Initial Account
is an Eligible Account and, in the case of Additional Accounts, on the
applicable Additional Cut-off Date and each subsequent Closing Date, each
such Additional Account is an Eligible Account.
(iv) On the first Closing Date, in the case of the Initial Accounts,
and, in the case of the Additional Accounts, on the applicable Additional
Cut-off Date, and on each Transfer Date, each Receivable conveyed to the
Buyer on such date is an Eligible Receivable.
(b) Notice of Breach. The representations and warranties set forth in this
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Section 2.3 shall survive the transfer and assignment of the Receivables to the
Buyer. Upon discovery by the Seller or the Buyer of a breach of any of the
representations and warranties set forth in this Section 2.3, the party
discovering such breach shall give prompt written notice to the other party.
The Seller agrees to cooperate with the Buyer in attempting to cure any breach.
(c) Repurchase. In the event any representation or warranty under Section
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2.3(a) is not true and correct as of the date specified therein with respect to
any Receivable or Account and the Buyer is, in connection therewith, required to
purchase such Receivable or all Receivables in such Account pursuant to Section
2.4(c) of the Pooling and Servicing Agreement, then, within 30 days (or such
longer period as may be agreed to by the Buyer) of the earlier to occur of the
discovery of any such event by the Seller or the Buyer, or receipt by the Seller
or the Buyer of written notice of any such event given by the Trustee or any
Enhancement Providers, the Seller shall repurchase the Receivable or Receivables
of which the Buyer is required to accept reassignment pursuant to the Pooling
and Servicing Agreement on the Business Day preceding the Determination Date on
which such reassignment is to occur.
The Seller shall purchase each such Receivable by making a payment to the
Buyer in immediately available funds on the Business Day preceding the
Distribution Date on which such reassignment is to occur in an amount equal to
the Purchase Price for such Receivable. Upon payment of the Purchase Price, the
Buyer shall automatically and without further action be deemed to sell,
transfer, assign, set over and otherwise convey to the Seller, without recourse,
representation or warranty, all the right, title and interest of the Buyer in
and to such Receivable, all
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Collateral Security, the related Floorplan Rights and all monies due or to
become due with respect thereto and all proceeds thereof. The Buyer shall
execute such documents and instruments of transfer or assignment and take such
other actions as shall reasonably be required by the Seller to effect the
conveyance of such Receivables pursuant to this Section. The obligation of the
Seller to repurchase any such Receivable shall constitute the sole remedy
respecting the event giving rise to such obligation available to the Buyer and
to the Certificateholders (or the Trustee on behalf of Certificateholders).
SECTION 2.4. Addition of Accounts.
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(a) The Seller may from time to time offer to designate additional Eligible
Accounts to be included as Accounts, subject to the conditions specified in
paragraph (b) below. If any such offer is accepted by the Buyer, Receivables
and Collateral Security, if any, from such Additional Accounts shall be sold to
the Buyer effective on a date (the "Addition Date") specified in a written
notice provided by the Seller (or the Servicer on its behalf) to the Buyer, the
Rating Agencies and any Enhancement Providers specifying the Additional Cut-off
Date and the Addition Date for such Additional Accounts (the "Addition Notice")
on or before the fifth Business Day but not more than the 30th day prior to the
related Addition Date or, if the Automatic Addition Condition is satisfied, on
the Determination Date following the Collection Period in which such Addition
Dates occur (the "Notice Date"). An Addition Notice may relate to one or more
Accounts on one or more Addition Dates.
(b) The Seller shall be permitted to convey to the Buyer the Receivables
and all Collateral Security, if any, related thereto in any Additional Accounts
designated by the Seller as such pursuant to Section 2.4(a) only upon
satisfaction of each of the following conditions on or prior to the related
Addition Date (except for the condition in clause (vii), if applicable, which
shall be satisfied on or before the tenth Business Day after such Notice Date):
(i) The Seller shall provide the Buyer, the Rating Agencies and any
Enhancement Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) The Seller shall have delivered to the Buyer a duly executed
written assignment (including an acceptance by the Buyer) covering the
Receivables specified in the Addition Notice in substantially the form of
Exhibit A (the "Assignment") and the computer file or microfiche or written
list required to be delivered pursuant to Section 2.1.
(iv) The Seller shall have delivered to the Buyer for deposit in the
Collection Account all Collections with respect to such Additional Accounts
since the Additional Cut-off Date.
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(v) (A) No selection procedures believed by the Seller to be
adverse to the interests of the Buyer or the Beneficiaries were used in
selecting such Additional Accounts; (B) the list of Additional Accounts
delivered pursuant to clause (iii) above is true and correct in all
material respects as of the Additional Cut-off Date and (C) as of each of
the Notice Date and the Addition Date, neither the Seller, the Buyer nor
the Servicer are insolvent nor will have been made insolvent by such
transfer nor are aware of any pending insolvency.
(vi) If the Automatic Addition Condition is not satisfied with
respect to such addition, the Rating Agency Condition shall have been
satisfied with respect to such addition.
(vii) If one or more of the Additional Accounts specified in such
Addition Notice will contain Receivables secured by a security interest in
a type of Product that has not been previously financed in the Floorplan
Business then, whether or not the Automatic Condition is satisfied, the
Rating Agency Condition shall have been satisfied in respect of the
addition of each such Additional Account on or prior to the related
Addition Date.
(viii) The addition of the Receivables arising in such Additional
Accounts shall not result in the occurrence of an Pay Out Event.
(ix) The Seller shall have delivered to the Buyer, the Rating
Agencies and any Enhancement Providers a certificate of a Vice President or
more senior officer confirming the items set forth in paragraphs (ii)
through (vi) and (viii) above.
(x) On or before each Notice Date, the Seller shall have delivered
to the Trustee, the Rating Agencies and any Enhancement Providers (A) an
Opinion of Counsel with respect to the Receivables in the Additional
Accounts added since the last delivery of such opinion substantially in the
form of Exhibit E-3 to the Pooling and Servicing Agreement and (B) except
in the case of an addition in connection with an addition of Receivables by
the Buyer to the Trust required by Section 2.6(a) of the Pooling and
Servicing Agreement, a Tax Opinion with respect to such addition; provided,
however, that if (x) the Automatic Addition Condition is satisfied with
respect to such addition and (y) the Seller's senior unsecured long-term
debt is then rated "A-" or higher by Standard & Poor's, and "Baa1" or
higher by Moody's, such Opinion of Counsel and Tax Opinion will be required
to be delivered no more frequently than semi-annually.
(c) The Seller hereby represents and warrants as of the applicable
Addition Date as to the matters set forth in Section 2.4(b)(v). The
representations and warranties set forth in Section 2.4(b)(v) shall survive the
sale and assignment of the
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respective Receivables and Collateral Security, if any, to the Buyer. Upon
discovery by the Seller or the Buyer of a breach of any of the foregoing
representations and warranties, the party discovering the breach shall give
prompt written notice to the other parties and to any Enhancement Providers.
SECTION 2.5. Covenants of the Seller. The Seller hereby covenants that:
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(a) No Liens. Except for the conveyances hereunder, the Seller will
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not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on, any Receivable or any Collateral
Security, whether now existing or hereafter created, or any interest therein,
and the Seller shall defend the right, title and interest of the Buyer and the
Trust in, to and under the Receivables and the Collateral Security, whether now
existing or hereafter created, against all claims of third parties claiming
through or under the Seller.
(b) Financing Agreements and Guidelines. The Seller shall comply
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with and perform its servicing obligations with respect to the Accounts and
Receivables in accordance with (i) the Wholesale Financing Agreements and the
Asset-Based Financing Agreements relating to the Accounts and (ii) the Financing
Guidelines, except insofar as any failure to so comply or perform would not
materially and adversely affect the rights of the Buyer, the Trust or any of the
Beneficiaries. Subject to compliance with all Requirements of Law, the Seller
may change the terms and provisions of (i) the Wholesale Financing Agreements
and the Asset-Based Financing Agreements or (ii) the Financing Guidelines in any
respect (including the calculation of the amount or the timing of charge-offs
and the rate of the finance charge assessed thereon) only if such change would
be permitted pursuant to Section 3.1(d) of the Pooling and Servicing Agreement.
(c) Account Allocations. In the event that the Seller is unable for
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any reason to transfer Receivables to the Buyer, then the Seller agrees that it
shall allocate, after the occurrence of such event, payments on each Account
with respect to the principal balance of such Account first to the oldest
principal balance of such Account and to have such payments applied as
Collections in accordance with the terms of the Pooling and Servicing Agreement.
The parties hereto agree that Interest Receivables, whenever created, accrued in
respect of Principal Receivables which have been conveyed to the Buyer and by
the Buyer to the Trust shall continue to be a part of the Trust notwithstanding
any cessation of the transfer of additional Principal Receivables to the Buyer
and Collections with respect thereto shall continue to be allocated and paid in
accordance with Article IV of the Pooling and Servicing Agreement.
(d) Delivery of Collections. In the event that the Seller receives
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Collections, the Seller agrees to pay the Servicer or any Successor Servicer all
payments received by the Seller in respect of the Receivables as soon as
practicable after receipt thereof by the Seller, but in no event later than two
Business Days after the receipt by the Seller thereof.
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(e) Notice of Liens. The Seller shall notify the Buyer and the
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Trustee promptly after becoming aware of any Lien on any Receivable conveyed by
the Seller other than the conveyances hereunder or under the Pooling and
Servicing Agreement.
(f) Compliance with Law. The Seller hereby agrees to comply in all
-------------------
material respects with all Requirements of Law applicable to the Seller.
(g) Performance of Floorplan Agreements. The Seller shall perform its
-----------------------------------
obligations under each Floorplan Agreement in accordance with the terms thereof
in all material respects.
SECTION 2.6. Removal of Eligible Accounts.
----------------------------
(a) On each Determination Date on which Accounts, including all amounts
then held by the Trust or thereafter received by the Trust with respect to such
Accounts, are removed from the Trust pursuant to Section 2.7(b) of the Pooling
and Servicing Agreement, the Buyer shall be deemed to have offered to the Seller
automatically and without notice to or action by or on behalf of the Buyer, the
right to remove Eligible Accounts from the operation of this Agreement in the
manner prescribed in Section 2.6(b). The termination of an Account by a Dealer
upon such Dealer's payment in full of such Account shall not be a removal of an
Account under this Section.
(b) To accept such offer and remove Accounts, including all amounts then
held by the Trust or thereafter received by the Trust with respect to such
Accounts, the Seller (or the Servicer on its behalf) shall take the following
actions and make the following determinations:
(i) on or before the fifth Business Day prior to the Determination
Date on which such removal will occur, furnish to the Buyer, the Trustee,
any Enhancement Providers and the Rating Agencies a written notice (the
"Removal Notice") specifying the Determination Date on which removal of the
Receivables of one or more Accounts (the "Removed Accounts") will occur (a
"Removal Date");
(ii) from and after such Removal Date, cease to transfer to the Buyer
any and all Receivables arising in such Removed Accounts;
(iii) represent and warrant that the removal of any such Eligible
Account on any Removal Date shall not, in the reasonable belief of the
Seller, (w) cause a Pay Out Event to occur, (x) cause the Transferor
Interest to be less than the Minimum Transferor Interest on such Removal
Date or (y) cause the aggregate amount of Principal Receivables to be less
than the Minimum Aggregate Principal Receivables;
-11-
(iv) represent and warrant that no selection procedures believed by
the Seller to be adverse to the interests of the Beneficiaries were
utilized in selecting the Accounts to be removed; and
(v) on or before the fifth Business Day after the Removal Date,
furnish to the Trustee a computer file, microfiche list or other list of
the Removed Accounts that were removed on the Removal Date, specifying for
each Removed Account as of the date of the Removal Notice its number, the
aggregate amount outstanding in such Removed Account and the aggregate
amount of Principal Receivables therein and represent that such computer
file, microfiche list or other list of the Removed Accounts is true and
complete in all material respects.
(c) Subject to Section 2.6(b), on the Removal Date with respect to any such
Removed Account, such Removed Account shall be deemed removed by operation of
this Agreement for all purposes. After the Removal Date and upon the written
request of the Servicer, the Buyer shall deliver to the Seller a reassignment in
substantially the form of Exhibit C (the "Reassignment").
SECTION 2.7. Removal of Ineligible Accounts.
------------------------------
(a) On any date on which an Account becomes an Ineligible Account (which
shall be deemed the Removal Commencement Date with respect to such Account), the
Seller shall commence removal of the Receivables of such Ineligible Account in
the manner prescribed in Section 2.8(b) of the Pooling and Servicing Agreement.
(b) With respect to each Account that becomes an Ineligible Account, the
Seller (or the Servicer on its behalf) shall take the following actions and make
the following determinations:
(i) furnish to the Buyer, the Trustee, the Rating Agencies and any
Enhancement Providers a Removal Notice specifying a Removal Commencement
Date and the Ineligible Accounts to be treated as Designated Accounts;
(ii) determine on the Removal Commencement Date with respect to such
Designated Accounts the Designated Balance with respect to each such
Designated Account and amend Schedule 1 by delivering to the Buyer a
computer file or microfiche or written list containing a true and complete
list of the Removed Accounts specifying for each such Account, as of the
Removal Commencement Date, its account number, the aggregate amount of
Receivables outstanding in such Account and the Designated Balance;
-12-
(iii) from and after such Removal Commencement Date, cease to
transfer to the Buyer any and all Receivables arising in such Designated
Accounts;
(iv) from and after such Removal Commencement Date, allocate
Collections of Principal Receivables in respect of each Designated Account,
first to the oldest outstanding principal balance of such Designated
Account, until the Removal Date with respect thereto; and
(v) on each Business Day from and after such Removal Commencement
Date to and until the related Removal Date, allocate (A) to the Buyer
Defaulted Receivables and Collections of Interest Receivables in respect of
each Designated Account, based on the ratio of the aggregate amount of
Principal Receivables in all Designated Accounts sold to the Buyer on such
Business Day to the total aggregate amount of Principal Receivables in all
such Designated Accounts on such Business Day and (B) to the Seller, the
remainder of the Defaulted Receivables and Collections of Interest
Receivables in all such Designated Accounts on such Business Day.
(c) On the Removal Date with respect to any such Designated Account, the
Seller shall cease to allocate any Collections therefor in accordance herewith
and such Designated Account shall be deemed a Removed Account. After the
Removal Date and upon the written request of the Servicer, the Buyer shall
deliver to the Seller a Reassignment.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.1. Acceptance of Appointment and Other Matters Relating to the
-----------------------------------------------------------
Servicer.
--------
(a) Green Tree agrees to act as the Servicer under this Agreement and the
Pooling and Servicing Agreement, and the Buyer consents to Green Tree acting as
Servicer. Green Tree, as Servicer, may delegate some or all of its servicing
duties to a wholly owned subsidiary of Green Tree, for so long as such
subsidiary remains, directly or indirectly, a wholly owned subsidiary of Green
Tree. Green Tree will have ultimate responsibility for servicing, managing and
making collections on the Receivables and will have the authority to make any
management decisions relating to such Receivables, to the extent such authority
is granted to the Servicer under this Agreement and the Pooling and Servicing
Agreement.
(b) Green Tree shall service and administer the Receivables in accordance
with the provisions of the Pooling and Servicing Agreement.
-13-
SECTION 3.2. Servicing Compensation. As full compensation for its
----------------------
servicing activities hereunder and under the Pooling and Servicing Agreement,
Green Tree shall be entitled to receive the Servicing Fee on each Distribution
Date so long as it is the Servicer under the Pooling and Servicing Agreement.
The Servicing Fee shall be paid in accordance with the terms of the Pooling and
Servicing Agreement.
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.1. Allocations and Applications of Collections and Other Funds.
-----------------------------------------------------------
The Servicer will apply all Collections with respect to the Receivables and all
funds on deposit in the Collection Account as described in Article IV of the
Pooling and Servicing Agreement.
ARTICLE V
OTHER MATTERS RELATING TO THE SELLER
SECTION 5.1. Merger or Consolidation of, or Assumption of, the Obligations
-------------------------------------------------------------
of the Seller. The Seller shall not consolidate with or merge into any other
-------------
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which the Seller
is merged or the Person which acquires by conveyance or transfer the properties
and assets of the Seller substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America or any
State or the District of Columbia and, if the Seller is not the surviving
entity, such corporation shall assume, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, the
performance of every covenant and obligation of the Seller hereunder; and
(b) the Seller has delivered to the Buyer and the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation,
merger, conveyance or transfer comply with this Section 5.1 and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
SECTION 5.2. Seller's Indemnification of the Buyer. The Seller shall
-------------------------------------
indemnify and hold harmless the Buyer, from and against any loss, liability,
expense, claim, damage or injury suffered or sustained by reason of any acts,
omissions or alleged acts or omissions arising out of activities of the Seller
pursuant
-14-
to this Agreement arising out of or based on the arrangement created by this
Agreement and the activities of the Seller taken pursuant thereto, including any
judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim; provided, however, that the Seller shall
-------- -------
not indemnify the Buyer if such acts, omissions or alleged acts or omissions
constitute fraud, gross negligence or wilful misconduct by the Buyer; and
provided further, that the Seller shall not indemnify the Buyer for any
-------- -------
liabilities, cost or expense of the Buyer with respect to any federal, state or
local income or franchise taxes (or any interest or penalties with respect
thereto) required to be paid by the Buyer in connection herewith to any taxing
authority. Any indemnification under this Article V shall survive the
termination of the Agreement.
ARTICLE VI
TERMINATION
This Agreement will terminate immediately after the Trust terminates
pursuant to the Pooling and Servicing Agreement. In addition, the Buyer shall
not purchase Receivables from the Seller nor shall the Seller designate
Additional Accounts if (i) the Seller shall consent to the appointment of a
bankruptcy trustee or receiver or liquidator for the winding-up or liquidation
of its affairs or (ii) the Seller shall become an involuntary party to (or be
made the subject of) any proceeding provided for by any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Seller or relating to all or substantially all of its property
(an "Involuntary Case") and such Involuntary Case shall have continued for a
period of ten Business Days from and including the day of receipt by the Seller
at its principal corporate office of notice of such Involuntary Case; provided,
--------
that during such ten Business Day period, the Buyer shall suspend its purchase
----
of Receivables and shall hold all Collections of Principal Receivables that
would have been available to purchase Receivables in the Collection Account and
(a) if by the first Business Day after such ten Business Day period, the Buyer
has not obtained an order from the court having jurisdiction of such case or
filing which order approves the continuation of the sale of Receivables by the
Seller to the Buyer and which provided that the Buyer and any of its transferees
(including the Trustee) may rely on such order for the validity and nonavoidance
of such transfer (the "Order"), the Buyer shall hold such Collections in the
Collection Account until such time as they may be paid as elsewhere provided
herein and shall not purchase Receivables thereafter or designate Additional
Accounts for transfer to the Buyer, or (b) if by such first Business Day, the
Buyer has obtained such Order, the Seller may continue selling Receivables, and
the Buyer may continue purchasing Receivables, pursuant to the terms hereof, as
modified by the immediately succeeding sentence. During the period after the
ten Business Day period described above and before the end of the 60-day period
described below, the purchase price of the Receivables transferred during such
period, notwithstanding anything in this Agreement to the
-15-
contrary, shall be paid to the Seller by the Buyer in cash not later than the
same Business Day of any sale of Receivables. During such period, Receivables
will be considered transferred to the Buyer only to the extent that the purchase
price therefor has been paid in cash on the same Business Day. If an Order is
obtained but subsequently is reversed or rescinded or expires, the Seller shall
immediately cease selling Receivables to the Buyer and the Buyer shall
immediately cease buying Receivables. The Seller shall give prompt written
notice to each of the Buyer and the Trustee immediately upon becoming a party to
an Involuntary Case. If by the first Business Day after the 60-day period after
such involuntary filing, such Involuntary Case has not been dismissed, the Buyer
shall not purchase thereafter Receivables or designated Additional Accounts for
transfer to the Trust.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Amendment.
---------
(a) This Agreement may be amended from time to time by the Seller and the
Buyer; provided, however, that such action shall not, as evidenced by an Opinion
-------- -------
of Counsel for the Seller addressed and delivered to the Trustee, adversely
affect in any material respect the interests of any Investor Certificateholder.
(b) This Agreement may also be amended from time to time by the Buyer and
the Seller with the consent of the Holders of Investor Certificates evidencing
more than 50% of the aggregate unpaid principal amount of the Investor
Certificates of all materially adversely affected Series, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Seller; provided, however, that no such amendment shall (i) reduce in any manner
-------- -------
the amount of or delay the timing of any distributions to be made to Investor
Certificateholders or deposits of amounts to be so distributed with the amount
available under any Enhancement without the consent of each affected Investor
Certificateholder, (ii) change the definition of or the manner of calculating
the interest of any Investor Certificates without the consent of each affected
Certificateholder, (iii) reduce the aforesaid percentage required to consent to
any such amendment without the consent of each Certificateholder or
(iv) adversely affect the rating of any Series or Class by any Rating Agency (if
such Rating Agency has received prior notice of such amendment and has so
notified the Buyer or the Seller) without the consent of the Holders of all of
the Investor Certificates of such Series or Class. Any amendment to be effected
pursuant to this paragraph shall be deemed to materially adversely affect all
outstanding Series, other than any Series with respect to which such action
shall not, as evidenced by an Opinion of Counsel for the Seller, addressed and
delivered to the Trustee, adversely affect in any material respect the interests
of any Investor Certificateholder of such Series. The Trustee may, but shall not
be obligated to, enter
-16-
into any such amendment which affects the Trustee's rights, duties or immunities
under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other
than an amendment pursuant to paragraph (a), the Seller shall furnish
notification of the substance of such amendment to each Investor
Certificateholder, each Enhancement Provider, each Agent and each Rating Agency.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Investor Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
(e) Notwithstanding anything in this Section to the contrary, no amendment
may be made to this Agreement which would adversely affect in any material
respect the interests of any Enhancement Provider without the consent of such
Enhancement Provider.
SECTION 7.2. Protection of Right, Title and Interest to Receivables.
------------------------------------------------------
(a) The Seller shall cause this Agreement, all amendments hereto and/or all
financing statements and continuation statements and any other necessary
documents covering the Buyer's right, title and interest to the Receivables and
Collateral Security relating thereto to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Buyer hereunder. The Seller shall
deliver to the Buyer file-stamped copies of, or filing receipts for, any
document recorded, registered or filed as provided above, as soon as available
following such recording, registration or filing. The Buyer shall cooperate
fully with the Seller in connection with the obligations set forth above and
will execute any and all documents reasonably required to fulfill the intent of
this Section 7.2(a).
(b) Within 30 days after the Seller makes any change in its name, identity
or corporate structure which would make any financing statement or continuation
statement filed in accordance with Section 7.2(a) seriously misleading within
the meaning of Section 9-402(7) of the UCC as in effect in the State of
Minnesota, or such other applicable jurisdiction, the Seller shall give the
Buyer and any Agent notice of any such change and shall file such financing
statements or amendments as may be necessary to continue the perfection of the
Buyer's security interest in the Receivables and the proceeds thereof.
(c) The Seller will give the Buyer prompt written notice of any relocation
of any office at which it keeps Records concerning the Receivables or of its
principal
-17-
executive office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement and shall
file such financing statements or amendments as may be necessary to perfect or
to continue the perfection of the Buyer's security interest in the Receivables
and the proceeds thereof. The Seller will at all times maintain its principal
executive offices within the United States of America.
(d) The Seller will deliver to the Buyer upon the execution and delivery of
each amendment of this Agreement, an Opinion of Counsel to the effect specified
in Exhibit B.
SECTION 7.3. Limited Recourse. Notwithstanding anything to the contrary
----------------
contained herein, the obligations of the Buyer hereunder shall not be recourse
to the Buyer (or any person or organization acting on behalf of the Buyer or any
affiliate, officer or director of the Buyer), other than to the portion of the
Transferor Interest on any date of determination which is in excess of the
Minimum Transferor Interest; provided, however, that any payment by the Buyer
-------- -------
made in accordance with this Section 7.3 shall be made only after payment in
full of any amounts that the Buyer is obligated to deposit in the Collection
Account pursuant to this Agreement; provided further that the Investor
-------- -------
Certificateholders shall be entitled to the benefits of the subordination of the
Collections allocable to the Transferor Interest to the extent provided in any
Supplements to the Pooling and Servicing Agreement.
SECTION 7.4. No Petition. The Seller hereby covenants and agrees that it
-----------
will not at any time institute against the Buyer any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law.
SECTION 7.5. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 7.6. Notices. All demands, notices and communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to the
parties at such addresses specified in the Pooling and Servicing Agreement.
SECTION 7.7. Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability
-18-
of the other provisions of this Agreement or of the Certificates or rights of
the Certificateholders.
SECTION 7.8. Assignment. Notwithstanding anything to the contrary
----------
contained herein, this Agreement may not be assigned by the Seller without the
prior consent of the Buyer and the Trustee. The Buyer may assign its rights,
remedies, powers and privileges under this Agreement to the Trust pursuant to
the Pooling and Servicing Agreement.
SECTION 7.9. Further Assurances. The Seller agrees to do and perform,
------------------
from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the Buyer more fully to effect
the purposes of this Agreement, including the execution of any financing
statements or continuation statements relating to the Receivables for filing
under the provisions of the UCC of any applicable jurisdiction.
SECTION 7.10. No Waiver; Cumulative Remedies. No failure to exercise and
------------------------------
no delay in exercising, on the part of the Buyer, any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
SECTION 7.11. Counterparts. This Agreement may be executed in two or more
------------
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 7.12. Third-Party Beneficiaries. This Agreement will inure to the
-------------------------
benefit of and be binding upon the parties hereto, the Certificateholders, the
Trustee and the other Beneficiaries and their respective successors and
permitted assigns. Except as otherwise provided in this Agreement, no other
Person will have any right or obligation hereunder.
SECTION 7.13. Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 7.14. Headings. The headings herein are for purposes of reference
--------
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
-19-
IN WITNESS WHEREOF, the Seller and the Buyer have caused this Receivables
Purchase Agreement to be duly executed by their respective officers as of the
day and year first above written.
GREEN TREE FLOORPLAN FUNDING
CORP., Buyer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
GREEN TREE FINANCIAL
CORPORATION, Seller
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
--------------------------------------------------------------------------------
-20-
EXHIBIT A
TO RPA
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.4
of the Receivables Purchase Agreement)
ASSIGNMENT No. _____ OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
__________, ____, between Green Tree Floorplan Funding Corp., as buyer (the
"Buyer"), and Green Tree Financial Corporation, as seller (the "Seller"),
pursuant to the Receivables Purchase Agreement referred to below.
W I T N E S S E T H:
-------------------
WHEREAS the Seller and the Buyer are parties to a Receivables Purchase
Agreement dated as of December 1, 1995 (as amended or supplemented, the
"Receivables Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, the Seller wishes
to designate Additional Accounts to be included as Accounts and to convey the
Receivables and related Collateral Security of such Additional Accounts, whether
now existing or hereafter created, to the Buyer as part of the corpus of the
Trust (as each such term is defined in the Receivables Purchase Agreement); and
WHEREAS the Buyer is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller and the Buyer hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have the
-------------
meanings ascribed to them in the Receivables Purchase Agreement unless otherwise
defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
-------------
designated hereby, __________, 19__.
2. Designation of Additional Accounts. The Seller hereby delivers
----------------------------------
herewith a computer file or microfiche or written list containing a true and
complete list of all such Additional Accounts specifying for each such Account,
as of the Additional Cut-off Date, its account number, the aggregate amount of
A-1
Receivables outstanding in such Account and the aggregate amount of Principal
Receivables in such Account. Such file or list shall, as of the date of this
Assignment, supplement Schedule 1 to the Receivables Purchase Agreement.
3. Conveyance of Receivables.
-------------------------
(a) The Seller does hereby sell, transfer, assign, set over and otherwise
convey, without recourse (except as expressly provided in the Receivables
Purchase Agreement), to the Buyer, on the Addition Date all of its right, title
and interest in, to and under the Receivables in such Additional Accounts, all
Collateral Security and the related Floorplan Rights with respect thereto, owned
by the Seller and existing at the close of business on the Additional Cut-off
Date and thereafter created from time to time, all monies due or to become due
and all amounts received with respect thereto and all proceeds (including
"proceeds" as defined in Section 9-306 of the UCC as in effect in the State of
Minnesota and including Recoveries) thereof. The foregoing sale, transfer,
assignment, set-over and conveyance does not constitute and is not intended to
result in the creation or an assumption by the Buyer of any obligation of the
Servicer, the Seller or any other Person in connection with the Accounts, the
Receivables or under any agreement or instrument relating thereto, including any
obligation under any Financing Agreement or Floorplan Agreement, including any
other obligation to any Dealer or Manufacturer.
(b) In connection with such sale, the Seller agrees to record and file, at
its own expense, a financing statement on form UCC-1 (and continuation
statements when applicable) with respect to the Receivables now existing and
hereafter created for the sale of chattel paper, accounts and general
intangibles (as defined in Section 9-105 or 9-106 of the UCC as in effect in any
state where the Seller's or the Servicer's chief executive offices or books and
records relating to the Receivables are located) meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the sale and assignment of the Receivables and the Collateral
Security to the Buyer, and to deliver a file-stamped copy of such financing
statements or other evidence of such filing to the Buyer on or prior to the
Addition Date to the extent, if any, that the UCC-1 financing statements filed
pursuant to Section 2.1 of the Receivables Purchase Agreement are not sufficient
for such purpose. In addition, the Seller shall cause to be timely filed in the
appropriate filing office any UCC-1 financing statement and continuation
statement necessary to perfect any sale of Receivables to the Seller. The Buyer
shall be under no obligation whatsoever to file such financing statement, or a
continuation statement to such financing statement, or to make any other filing
under the UCC in connection with such sale. The parties hereto intend that the
sales of Receivables effected by this Agreement be sales.
--------------------------------------------------------------------------------
A-2
(c) In connection with such sale, the Seller further agrees, at its own
expense, on or prior to the Addition Date, to indicate in its books and records,
which may include its computer files, that the Receivables created in connection
with the Additional Accounts designated hereby have been sold and the Collateral
Security assigned to the Buyer pursuant to this Assignment and sold to the Trust
pursuant to the Pooling and Servicing Agreement for the benefit of the
Certificateholders and the other Beneficiaries.
4. Acceptance by Buyer. Subject to the satisfaction of the conditions
-------------------
set forth in Section 6 of this Assignment, the Buyer hereby acknowledges its
acceptance of all right, title and interest to the property, now existing and
hereafter created, conveyed to the Buyer pursuant to Section 3(a) of this
Assignment. The Buyer further acknowledges that, prior to or simultaneously
with the execution and delivery of this Assignment, the Seller delivered to the
Buyer the computer file or microfiche or written list relating to the Additional
Accounts described in Section 2 of this Assignment.
5. Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Buyer, on behalf of the Trust, as of the date of
this Assignment and as of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This Assignment constitutes a
-----------------------------------
legal, valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting creditors' rights in
general and except as such enforceability may be limited by general principles
of equity (whether considered in a suit at law or in equity);
(b) Organization and Good Standing. The Seller is a corporation duly
------------------------------
organized and validly existing and in good standing under the law of the State
of Delaware and has, in all material respects, full corporate power, authority
and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Assignment;
(c) Due Qualification. The Seller is duly qualified to do business and,
-----------------
where necessary, is in good standing as a foreign corporation (or is exempt from
such requirement) and has obtained all necessary licenses and approvals in each
jurisdiction in which the conduct of its business requires such qualification
except where the failure to so qualify or obtain licenses or approvals would not
have a material adverse effect on its ability to perform its obligations
hereunder;
--------------------------------------------------------------------------------
A-3
(d) Eligible Accounts. Each Additional Account designated hereby is an
-----------------
Eligible Account;
(e) Selection Procedures. No selection procedures believed by the Seller
--------------------
to be adverse to the interests of the Beneficiaries were utilized in selecting
the Additional Accounts designated hereby;
(f) Insolvency. As of the Notice Date and the Addition Date, the Seller is
----------
not insolvent nor, after giving effect to the conveyance set forth in Section 3
of this Assignment, will it have been made insolvent, nor is it aware of any
pending insolvency;
(g) Valid Transfer. This Assignment constitutes a valid sale, transfer and
--------------
assignment to the Buyer of all right, title and interest of the Seller in the
Receivables and the Collateral Security and the proceeds thereof and upon the
filing of the financing statements described in Section 3 of this Assignment
with the Secretary of State of the State of Minnesota and other applicable
states and counties and, in the case of the Receivables and the Collateral
Security hereafter created and the proceeds thereof, upon the creation thereof,
the Buyer shall have a first priority perfected ownership interest in such
property, except for Liens permitted under Section 2.6(a) of the Receivables
Purchase Agreement;
(h) Due Authorization. The execution and delivery of this Assignment and
-----------------
the consummation of the transactions provided for or contemplated by this
Assignment have been duly authorized by the Seller by all necessary corporation
action on the part of the Seller;
(i) No Conflict. The execution and delivery of this Assignment, the
-----------
performance of the transactions contemplated by this Assignment and the
fulfillment of the terms hereof, will not conflict with, result in any breach of
any of the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust, or other instrument to which the
Seller is a party or by which it or its properties are bound;
(j) No Violation. The execution and delivery of this Assignment by the
------------
Seller, the performance of the transactions contemplated by this Assignment and
the fulfillment of the terms hereof will not conflict with or violate any
material Requirements of Law applicable to the Seller;
(k) No Proceedings. There are no proceedings or, to the best knowledge of
--------------
the Seller, investigations pending or threatened against the Seller before any
Governmental Authority (i) asserting the invalidity of this Assignment, (ii)
seeking
A-4
to prevent the consummation of any of the transactions contemplated by this
Assignment, (iii) seeking any determination or ruling that, in the reasonable
judgment of the Seller, would materially and adversely affect the performance by
the Seller of its obligations under this Assignment, (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of this Assignment or (v) seeking to affect adversely the
income tax attributes of the Trust under the United States federal or any State
income, single business or franchise tax systems;
(l) Record of Accounts. As of the Addition Date, Schedule 1 to this
------------------
Assignment is an accurate and complete listing in all material respects of all
the Additional Accounts as of the Additional Cut-off Date and the information
contained therein with respect to the identity of such Accounts and the
Receivables existing thereunder is true and correct in all material respects as
of the Additional Cut-off Date;
(m) No Liens. Each Receivable and all Collateral Security existing on the
--------
Addition Date has been conveyed to the Buyer free and clear of any Lien (other
than Permitted Liens);
(n) All Consents Required. With respect to each Receivable and all
---------------------
Collateral Security existing on the Addition Date, all consents, licenses,
approvals or authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by the Seller
in connection with the conveyance of such Receivable or Collateral Security to
the Buyer, the execution and delivery of this Assignment and the performance of
the transactions contemplated hereby have been duly obtained, effected or given
and are in full force and effect; and
(o) Eligible Receivables. On the Additional Cut-off Date each Receivable
--------------------
conveyed to the Buyer as of such date is an Eligible Receivable.
6. Conditions Precedent. The acceptance of the Trustee set forth in
--------------------
Section 4 of this Assignment is subject to the satisfaction, on or prior to the
Addition Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by the Seller in Section 5 of this Assignment shall be true and
correct as of the date of this Assignment and as of the Addition Date;
(b) Agreement. Each of the conditions set forth in Section 2.4(b) of the
---------
Receivables Purchase Agreement applicable to the designation of the Additional
Accounts to be designated hereby shall have been satisfied; and
--------------------------------------------------------------------------------
A-5
(c) Addition Information. The Seller shall have delivered to the Buyer
--------------------
such information as was reasonably requested by the Buyer to satisfy itself as
to the accuracy of the representation and warranty set forth in Section 5(d) of
this Assignment.
7. Ratification of Agreement. As supplemented by this Assignment, the
-------------------------
Receivables Purchase Agreement is in all respects ratified and confirmed and the
Receivables Purchase Agreement as so supplemented by this Assignment shall be
read, taken and construed as one and the same instrument.
8. Counterparts. This Assignment may be executed in two or more
------------
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
-------------
THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
--------------------------------------------------------------------------------
A-6
IN WITNESS WHEREOF, the Seller and the Buyer have caused this Assignment to
be duly executed and delivered by their respective duly authorized officers as
of the day and the year first above written.
GREEN TREE FLOORPLAN FUNDING
CORP., Buyer
By:
--------------------------------------------------------------------------------
Name:
-------------------------------
Title:
-------------------------------
GREEN TREE FINANCIAL
CORPORATION, Seller
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
A-7
EXHIBIT B
TO RPA
FORM OF OPINION OF COUNSEL
(As required by Section 7.2(d) of
---------------------------------
the Receivables Purchase Agreement)
-----------------------------------
(a) The Amendment to the Receivables Purchase Agreement, attached hereto as
Schedule 1 (the "Amendment"), has been duly authorized, executed and delivered
by the Seller and constitutes the legal, valid and binding agreement of the
Seller, enforceable in accordance with its terms except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally from time to time in
effect. The enforceability of the Seller's obligations is also subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(b) The Amendment has been entered into in accordance with the terms and
provisions of Section 7.1 of the Receivables Purchase Agreement.
(c) The Amendment will not adversely affect in any material respect the
interests of the Investor Certificateholders. [Include this clause (iii) only
in the case of amendments effected pursuant to Section 7.1(a) of the Receivables
Purchase Agreement.]
B-1
EXHIBIT C
TO RPA
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 2.6 of the Receivables
Purchase Agreement referred to below)
REASSIGNMENT NO. ____ OF RECEIVABLES, dated as of __________, ____,
by and between GREEN TREE FLOORPLAN FUNDING CORP., as buyer (the
"Buyer"), and GREEN TREE FINANCIAL CORPORATION, as seller (the
"Seller"), pursuant to the Receivables Purchase Agreement referred
to below.
WITNESSETH
WHEREAS the Seller and the Buyer are parties to the Receivables
Purchase Agreement dated as of December 1, 1995 (as amended or supplemented, the
"Receivable Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, the Seller
wishes to remove all Receivables from certain Accounts, the Collateral Security
thereof and the related Floorplan Rights (the "Removed Accounts") and to cause
the Buyer to reconvey the Receivables of such Removed Accounts and such
Collateral Security and Floorplan Rights, whether now existing or hereafter
created, and all amounts currently held by the Buyer or thereafter received by
the Trust in respect of such Removed Accounts, from the Buyer to the Seller (as
each such term is defined in the Receivables Purchase Agreement); and
WHEREAS the Buyer is willing to accept such removal and to reconvey
the Receivables in the Removed Accounts, such Collateral Security and any
related amounts held or received by the Trust subject to the terms and
conditions hereof.
NOW, THEREFORE, the Seller and the Buyer hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used
-------------
herein shall have such defined meanings when used herein, unless otherwise
defined herein.
"Removal Date" shall mean, with respect to the Removed Accounts
------------
designated hereby, __________________.
C-1
2. Notice of Removed Accounts. The Seller shall deliver to the Buyer,
--------------------------
the Trustee, any Enhancement Providers and the Rating Agencies a computer file
or microfiche or written list containing a true and complete list of the Removed
Accounts specifying for each such Account, as of the Removal Commencement Date,
its account number, the aggregate amount of Receivables outstanding in such
Accounts and the Designated Balance. Such list shall be marked as Schedule 1 to
this Reassignment and shall be incorporated into and made a part of this
Reassignment as of the Removal Date and shall amend Schedule 1 to the
Receivables Purchase Agreement.
3. Conveyance of Receivables and Accounts.
--------------------------------------
(a) The Buyer does hereby transfer, assign, set over and otherwise convey
to the Seller, without recourse, representation or warranty on and after the
Removal Date, all right, title and interest of the Buyer in, to and under all
Receivables now existing at the close of business on the Removal Date and
thereafter created from time to time until the termination of the Trust in the
Removed Accounts designated hereby, all Collateral Security thereof, the related
Floorplan Rights, all monies due or to become due and all amounts received with
respect thereto and all proceeds (as defined in Section 9-306 of the UCC as in
effect in the State of Minnesota and including Recoveries) thereof relating
thereto.
(b) If requested by the Seller, in connection with such transfer, the
Buyer agrees to execute and deliver to the Seller, on or prior to the date of
this Reassignment, a termination statement with respect to the Receivables
existing at the close of business on the Removal Date and thereafter created
from time to time and Collateral Security thereof in the Removed Accounts
reassigned hereby (which may be a single termination statement with respect to
all such Receivables and Collateral Security) evidencing the release by the
Trust of its lien on the Receivables in the Removed Accounts and the Collateral
Security, and meeting the requirements of applicable state law, in such manner
and such jurisdictions as are necessary to remove such lien.
4. Acceptance by Buyer. The Buyer hereby acknowledges that, prior to or
-------------------
simultaneously with the execution and delivery of this Reassignment, the Seller
delivered to the Buyer the computer file or such microfiche or written list
described in section 2(b) of this Reassignment.
5. Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Buyer as of the date of this Reassignment and as
of the Removal Date:
C-2
(a) Legal, Valid and Binding Obligation. This Reassignment constitutes a
-----------------------------------
legal, valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights generally and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in equity);
(b) No Pay Out Event. The removal of the Accounts hereby removed shall
----------------
not, in the reasonable belief of the Seller, cause a Pay Out Event to occur or
cause the Transferor Interest to be less than the Minimum Transferor Interest;
(c) Selection Procedures. No selection procedures believed by the Seller
--------------------
to be adverse to the interests of the Beneficiaries were utilized in selecting
the Accounts to be removed; and
(d) True and Complete List. The list of Removed Accounts described in
----------------------
Section 2(b) of this Assignment is, as of the Removal Commencement Date, true
and complete in all material respects.
provided, however, that in the event that the removal on such Removal Date
-------- -------
relates solely to Ineligible Accounts, the Seller shall be deemed to make only
the representations and warranties contained in paragraph 5(a) above.
6. Condition Precedent. In addition to the conditions precedent set
-------------------
forth in Section 2.6 of the Receivables Purchase Agreement, the obligation of
the Buyer to execute and deliver this Reassignment is subject to the Seller
having delivered on or prior to the Removal Date to the Trustee, the Buyer and
any Enhancement Providers an Officers' Certificate certifying that (i) as of the
Removal Date, all requirements set forth in Section 2.6 of the Agreement for
removing such Accounts and reconveying the Receivables of such Removed Accounts,
the Collateral Security and the related Floorplan Rights, whether existing at
the close of business on the Removal Date or thereafter created from time to
time until the termination of the Trust, have been satisfied, and (ii) each of
the representations and warranties made by the Seller in Section 5 hereof is
true and correct as of the date of this Reassignment and as of the Removal Date.
The Buyer may conclusively rely on such Officer's Certificate, shall have no
duty to make inquiries with regard to the matters set forth therein and shall
incur no liability in so relying.
7. Ratification of Agreement. As supplemented by this Reassignment the
-------------------------
Receivables Purchase Agreement is in all respects ratified and confirmed and the
Receivables Purchase Agreement as so supplemented by this Reassignment shall be
read, taken and construed as one and the same instrument.
C-3
8. Counterparts. This Reassignment may be executed in two or more
------------
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
-------------
WITH THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
C-4
IN WITNESS WHEREOF, the undersigned have caused this Reassignment to be
duly executed and delivered by their respective duly authorized officers on the
day and year first above written.
GREEN TREE FLOORPLAN FUNDING
CORP., Buyer
By:
------------------------------------
Name:
------------------------------
Title:
------------------------------
GREEN TREE FINANCIAL
CORPORATION, Seller
By:
------------------------------------
Name:
------------------------------
Title:
------------------------------
C-5
Schedule 1
----------
List of Accounts
----------------
[Deemed to be incorporated.]