[Form of Underwriting Agreement for Owner Trusts]
GREEN TREE FINANCIAL CORPORATION
(Seller and Servicer)
Green Tree Recreational, Consumer & Equipment Trust 199___
UNDERWRITING AGREEMENT
----------------------
[Date]
[Underwriters]
Dear Sirs:
Green Tree Financial Corporation (the "Company") is a Delaware corporation
with its principal place of business in Saint ▇▇▇▇, Minnesota. The Company has
filed a Registration Statement relating to the issuance and sale of asset-backed
notes (the "Notes") and asset-backed certificates (the "Certificates" and,
collectively with the Notes, the "Securities"). The Notes will represent
obligations of Green Tree Recreational, Consumer & Equipment Trust 199___ (the
"Trust"). The Certificates will evidence beneficial interests in the Trust.
The property of the Trust will include a pool of retail installment sales
contracts and promissory notes ("Contracts") having an aggregate outstanding
principal balance of $__________________ (approximate) for the purchase of a
variety of consumer products. The Notes and Certificates may be issued in
various series, and, within each series, in one or more classes, and, within
each class, in one or more sub-classes, in one or more offerings on terms
determined at the time of sale (each such series, a "Series" and each such
class, a "Class"). The Notes will be issued under an Indenture (the
"Indenture") between the Trust and a trustee to be identified in the prospectus
supplement (the "Indenture Trustee"). The Certificates will be issued under a
Trust Agreement (the "Trust Agreement") among the Company, as depositor (the
"Depositor"), a trustee to be identified in the prospectus supplement (the
"Owner Trustee") and certain other parties to be identified in the prospectus
supplement. Additionally, a Sale and Servicing Agreement will be entered into
by the Company, as seller and servicer, and the Owner Trustee. The
Securities will evidence specified obligations of and interests in separate
pools of Contracts (each, a "Contract Pool") and certain other property held in
trust with respect to such Series (each, a "Trust Fund"). The forms of each
Indenture, Trust Agreement and Sale and Servicing Agreement have been filed as
exhibits to the Registration Statement (hereinafter defined).
The Securities are more fully described in a Registration Statement which
the Company has furnished to you. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture, the Trust Agreement and
the Sale and Servicing Agreement, as applicable. The term "you" as used herein,
unless the context otherwise requires, shall mean you and such persons as are
named as co-managers in the Terms Agreement (defined below).
Each offering of Securities pursuant to this Agreement will be made through
you or through an underwriting syndicate managed by you. Whenever the Company
determines to make an offering of Securities, it will enter into an agreement
(the "Terms Agreement") providing for the sale of such Securities to, and the
purchase and offering thereof by, you and such other underwriters, if any,
selected by you and have authorized you to enter into such Terms Agreement on
their behalf (the "Underwriters," which term shall include you whether acting
alone in the sale of Securities or as a member of an underwriting syndicate).
The Terms Agreement relating to each offering of Securities shall specify, among
other things, the principal amount or amounts of Securities to be issued, the
price or prices at which the Securities are to be purchased by the Underwriters
from the Company and the initial public offering price or prices or the method
by which the price or prices at which such Securities are to be sold will be
determined. A Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between you and the Company. Each offering of
Securities will be governed by this Agreement, as supplemented by the applicable
Terms Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon the Underwriters participating in the offering of
such Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 33-_____________)
(the "Registration Statement"), relating to the offering of Securities from time
to time in accordance with Rule 415 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"). Such Registration Statement, as
amended at the time when it became effective under the 1933 Act, and the
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Prospectus relating to the sale of Securities by the Company constituting a part
thereof, as from time to time each is amended or supplemented pursuant to the
1933 Act or otherwise, are referred to herein as the "Registration Statement"
and the "Prospectus", respectively; provided, however that a supplement to the
Prospectus contemplated by Section 3(a) hereof (a "Prospectus Supplement") shall
be deemed to have supplemented the Prospectus only with respect to the offering
or offerings of Securities to which it relates.
SECTION 1. Representations and Warranties. The Company represents and
warrants to you as of the date hereof, and to the Underwriters named in the
Terms Agreement, all as of the date of such Terms Agreement (in each case, the
"Representation Date"), as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective did, and as of the applicable
Representation Date will, comply in all material respects with the
requirements of the 1933 Act and the Regulations. The Registration
Statement, at the time it became effective did not, and as of the
applicable Representation Date 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 at the time the Registration
Statement became effective did not, and as amended or supplemented as of
the applicable Representation Date 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 the Company in writing
by the Underwriters expressly for use in the Registration Statement or
Prospectus. The conditions to the use by the Company of a registration
statement on Form S-3 under the 1933 Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement, as applicable, and the Prospectus. There are no
contracts or documents of the Company 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.
(b) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
corporate power and
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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 Trust Agreement, the Sale and
Servicing Agreement and the Terms Agreement; and the Company 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 requires such qualification.
(c) The Company is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance of
any 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 the financial
condition, earnings, affairs or business of the Company or which might
materially and adversely affect the properties or assets thereof.
(d) The execution and delivery by the Company of this Agreement, the
Terms Agreement, the Sale and Servicing Agreement and the Trust Agreement
are within the corporate power of the Company and have been duly authorized
by all necessary corporate action on the part of the Company; and neither
the issuance and sale of the Securities to the Underwriters, nor the
execution and delivery by the Company of this Agreement, the Sale and
Servicing Agreement and the Trust Agreement, nor the consummation by the
Company of the transactions therein contemplated, nor compliance by the
Company 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 the Company or its properties or the
certificate of incorporation or by-laws of the Company, or any of the
provisions of any indenture, mortgage, contract or other instrument to
which the Company is a party or by which it is bound or result in the
creation or imposition of any lien, charge or encumbrance upon any of its
property 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 the Company, and each constitutes, or
will constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against the Company in accordance with its terms,
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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 applicable securities laws.
(f) The Trust Agreement and the Sale and Servicing Agreement when
executed and delivered as contemplated hereby and thereby will have been
duly authorized, executed and delivered by the Company, and will constitute
when so executed and delivered, a legal, valid and binding instrument
enforceable against the Company in accordance with its terms, subject (i)
to applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally and (ii) as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(g) As of the Closing Time (as defined below), the Notes will have
been duly and validly authorized by the Indenture Trustee and, when
executed and authenticated as specified in the Indenture, will be validly
issued and outstanding and will be entitled to the benefits of the
Indenture, and will be binding obligations of the Trust to the extent
provided in the Indenture.
(h) As of the Closing Time (as defined below), the Certificates will
have been duly and validly authorized by the Owner Trustee and, when
executed and authenticated as specified in the Trust Agreement, will be
validly issued and outstanding and will be entitled to the benefits of the
Trust Agreement, and will be binding obligations of the Trust to the extent
provided in the Trust Agreement.
(i) 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 the Company of the transactions
contemplated by this Agreement, the Trust Agreement, or the Terms
Agreement, except such as may be required under the 1933 Act, the
Regulations, or state securities or Blue Sky laws.
(j) The Company 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 and as described in the Prospectus and the Company has
received no
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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 business, operations, financial
condition or earnings of the Company.
(k) As of the Closing Time, the Contracts constituting a portion of
the Trust Fund will have been duly and validly assigned to the Trustee in
accordance with the Indenture; and when such assignment is effected, a duly
and validly perfected transfer of all such Contracts subject to no prior
lien, mortgage, security interest, pledge, charge or other encumbrance
created by the Company will have occurred.
(l) As of the Closing Time, each of the Contracts will meet the
eligibility criteria described in the Prospectus.
(m) Neither the Company nor the Trust Fund created by the Trust
Agreement will be subject to registration as an "investment company" under
the Investment Company Act of 1940, as amended (the "1940 Act").
(n) The Securities, the Indenture, the Trust Agreement, the Sale and
Servicing Agreement, the Terms Agreement, any Limited Guaranty and any
Insurance Policies conform in all material respects to the descriptions
thereof contained in the Prospectus.
SECTION 2. Purchase and Sale. The commitment of the Underwriters to
purchase Securities pursuant to any Terms Agreements 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, any Securities to be
purchased by the Underwriters shall be made at the office of ▇▇▇▇▇ & Wood, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be
agreed upon by you and the Company, at such time or date as shall be agreed upon
by you and the Company in the Terms Agreement (each such time and date being
referred to as a "Closing Time"). Unless otherwise specified in the Terms
Agreement, payment shall be made to the Company, at the option of the Company,
either (a) by certified or official bank check or checks in New York Clearing
House or similar next day funds payable to the order of the Company, or (b) in
immediately available Federal funds wired to such bank as may be designated by
the Company; provided, however, that if payment is made in immediately available
Federal funds if so specified in the Terms Agreement, the Company shall
simultaneously reimburse the
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Underwriters for the cost to the Underwriters of such funds, based on the
Underwriters' cost of borrowing such funds for one day at their most favorable
commercial paper rate at the Closing Time. Such Securities shall be in such
denominations and registered in such names as you may request in writing at
least two business days prior to the applicable Closing Time. Such Securities,
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
applicable Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each of
you and the Underwriters participating in the applicable offering of Securities,
as follows:
(a) Immediately following the execution of the Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of Securities covered thereby, the price or prices at which the
Securities are to be purchased by the Underwriters from the Trust, either
the initial public offering price or prices or the method by which the
price or prices by which the Securities are to be sold will be determined,
the selling concession(s) and reallowance(s), if any, any delayed delivery
arrangements, and such other information as you and the Company deem
appropriate in connection with the offering of the Securities. The Company
will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 under the 1933 Act and will
furnish to the Underwriters as many copies of the Prospectus and such
Prospectus Supplement 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 Securities by you or the
Underwriters, any event shall occur or condition exist as a result of which
it is necessary, in the opinion of your counsel, counsel for the Company,
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, the Company
will promptly prepare and 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
within two business days will furnish to the
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Underwriters as many copies of the Prospectus, as so amended or
supplemented, as you shall reasonably request.
(c) The Company will give you reasonable notice of its 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 Act, as amended (the "1934 Act")), 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) The Company will notify you immediately, and confirm the notice
in writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing
of any supplement to the Prospectus or any document, other than reports to
be filed pursuant to the 1934 Act, (iii) of the receipt of any comments
from the Commission with respect to the Registration Statement, the
Prospectus or any Prospectus Supplement, (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 Securities or the initiation of any proceedings for
that purpose. The Company will make every reasonable effort to prevent the
issuance of any such stop order or suspension and, if any such stop order
or suspension is issued, to obtain the lifting thereof at the earliest
possible moment.
(e) The Company will deliver to you as many signed and as many
conformed copies of the Registration Statement (as ordinarily filed) and of
each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated by reference in the
Prospectus) as you may reasonably request.
(f) The Company will endeavor, in cooperation with you, to qualify
the Securities 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
Securities. The Company will file or cause the filing of such statements
and reports as may be required by the laws of
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each jurisdiction in which the Securities have been qualified as above
provided.
SECTION 4. Conditions of Underwriters' Obligations. The Obligations of
the Underwriters to purchase Securities pursuant to any Terms Agreement are
subject to the accuracy of the representations and warranties on the part of the
Company herein contained, to the accuracy of the statements of the Company's
officers made pursuant hereto, to the performance by the Company of all of its
obligations hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued or
proceedings therefor initiated or threatened by the Commission, (ii) the
Securities shall have received the rating or 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, together with the
applicable Prospectus Supplement at the time it was required to be
delivered to a purchaser of the Securities, 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.
(b) At the applicable Closing Time you shall have received:
(1) The favorable opinion, dated as of the applicable Closing
Time, of ________________________, counsel for the Company, as seller and
servicer of the Contracts, in form and substance satisfactory to such of
you as may be named in the applicable Terms Agreement, to the effect that:
(i) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware.
(ii) The Company has the corporate power and corporate authority
to carry on its business as described in the Prospectus and to own and
operate its properties in connection therewith.
(iii) The Company is qualified to do business, and is in good
standing, as a foreign corporation in each U.S. jurisdiction in which
the character of the business owned or leased by it makes such
qualification necessary, except where the failure to be so qualified
would not
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have a material adverse effect on the financial condition of the
Company.
(iv) This Agreement and the Terms Agreement have been duly
authorized, executed and delivered by the Company, and each is a valid
and binding obligation of the Company enforceable against the Company
in accordance with its terms, except that (A) such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, (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), and (C) the enforceability as to rights to
indemnity thereunder may be limited under applicable law.
(v) The Trust Agreement and the Sale and Servicing Agreement
have been duly authorized, executed and delivered by the Company, and
are valid and binding obligations of the Company enforceable against
the Company in accordance with their 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).
(vi) The execution and delivery by the Company of this Agreement,
the Terms Agreement, the Sale and Servicing Agreement and the Trust
Agreement and the signing of the Registration Statement by the Company
are within the corporate power of the Company and have been duly
authorized by all necessary corporate action on the part of the
Company; and neither the issue and sale of the Securities, nor the
consummation of the transactions contemplated herein nor the
fulfillment of the terms hereof will, to the best of such counsel's
knowledge, conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company is a party or by which it may be bound
or to which the property or assets of the Company are subject (which
contracts, indentures, mortgages, loan agreements, notes, leases and
other such instruments have been identified by the Company to such
counsel), nor will
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such action result in any violation of the provisions of the
certificate of incorporation or by-laws of the Company or, to the best
of such counsel's knowledge, any law, administrative regulation or
administrative or court decree.
(vii) The Notes have been duly authorized and, when executed and
authenticated as specified in the Indenture and delivered and paid for
pursuant to this Agreement and the Terms Agreement, will be duly
issued and entitled to the benefits of the Indenture.
(viii) The Certificates have been duly authorized and, when
executed and authenticated as specified in the Trust Agreement and
delivered and paid for pursuant to this Agreement and the Terms
Agreement, will be duly issued and entitled to the benefits of the
Trust Agreement.
(ix) The Indenture creates a valid security interest in favor of
the Indenture Trustee in the Contracts and other property included in
the Trust Fund on the date hereof, which security interest of the
Trustee in the Contracts and the Trust Fund will be perfected and will
constitute a first perfected security interest upon the Trustee's
taking possession of the Contracts and the filing of Uniform
Commercial Code ("UCC") financing statements in the offices of the
Secretary of State of Minnesota; provided, however, that (1) for
purposes of its opinion in this paragraph, and based upon certificates
of the Company, such counsel may assume that (a) the Company has good
title and is the sole owner and holder of each Contract free and clear
of any right of rescission, set-off, defense or counterclaim, charges
or security interests of any nature and has full right and authority,
subject to no agreement with any other party, to sell, pledge and
assign the same, (b) the Company was named as secured party under the
Contract, (c) no Contract was overdue or had been dishonored or
subject to the circumstances described in Section 3-304 of the UCC;
and (d) no Contract is subject to a third party's security interest
that could be perfected without possession pursuant to Section 9-304
of the UCC, or constitutes proceeds of any property subject to a third
party's security interest; and (2) for purposes of its opinion in this
paragraph, such counsel may assume that (a) the Trustee took the
Contracts in good faith for value and without notice or knowledge (i)
of any adverse claims, liens or encumbrances, (ii) that any Contract
was overdue or had been dishonored or subject to the circumstances
described in Section 3-304 of the UCC, or
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(iii) of any defense against or claim to the Contract on the part of
any entity; and (b) the Indenture Trustee gave value for the Contracts
and took possession of the Contracts in the ordinary course of the
Indenture Trustee's business; and (3) such counsel need express no
opinion (a) as to the continuation of a security interest in the
Contracts in the event the Indenture Trustee relinquishes possession
of such Contracts and a subsequent purchaser takes possession without
notice of the Indenture Trustee's interest, (b) as to the continuation
of a security interest in the Contracts if the Indenture Trustee does
not file continuation statements as required by the Indenture or (c)
as to the priority of any security interest in the Contracts against
any liens, claims or other interests that arise by operation of law
and do not require any filing or similar action in order to take
priority over perfected security interests.
(x) To the best of such counsel's knowledge, no filing or
registration with or notice to or consent, approval, authorization or
order of any Minnesota or federal court or governmental authority or
agency is required for the consummation by the Company of the
transactions contemplated by this Agreement or the Terms Agreement,
except such as may be required under the 1933 Act or the Regulations,
or state securities or Blue Sky laws.
(xi) The Registration Statement is effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or, to the best of such
counsel's knowledge and information, have proceedings therefor been
initiated or threatened by the Commission.
(xii) The Trust Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended.
(xiii) The Indenture is duly qualified under the Trust Indenture
Act of 1939, as amended.
(xiv) The conditions to the use by the Company of a registration
statement on Form S-3 under the 1933 Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus. To the best of such
counsel's knowledge, there are no contracts or documents of the
Company which are required to be filed as exhibits to the
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Registration Statement pursuant to the 1933 Act or the Regulations
thereunder which have not been so filed.
(xv) The statements in the Prospectus Supplement under the
headings "Summary of the Terms of the Securities -- Tax Status" and
"Certain Federal Income Tax Consequences" and in the Prospectus under
the heading "Certain Federal Income Tax Consequences", to the extent
that such statements constitute matters of law or legal conclusions
with respect thereto, have been prepared or reviewed by such counsel
and are correct in all material respects.
(xvi) The Trust Fund created by the Trust Agreement is not, and
will not as a result of the offer and sale of the Securities as
contemplated in the Prospectus and in this Agreement become, an
"investment company" as such term is defined in the 1940 Act.
(xvii) The statements in the Prospectus under the captions "The
Certificates" and "The Notes" and in the Prospectus Supplement under
the caption "Description of the Securities", insofar as such
statements purport to summarize certain terms of the Securities, the
Trust Agreement, the Indenture and the Sale and Servicing Agreement,
constitute a fair and accurate summary of such documents.
(xviii) 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.
(xix) The execution, delivery and performance by the Company of the
Trust Agreement and the Sale and Servicing Agreement 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.
Such counsel shall deliver to you such additional opinions addressing the
transfer by the Company to the Indenture Trustee of its right, title and
interest in and to the Contracts and other property included in the Trust Fund
on the Closing Time as may be required by each Rating Agency rating the
Securities.
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Such counsel shall state that it has participated in the conferences with
officers and other representatives of the Company, your counsel, representatives
of the independent accountants for the Company and you at which the contents of
the Registration Statement and the Prospectus were discussed and, although such
counsel is not passing upon and does not assume responsibility for, the factual
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except as stated in paragraphs (xiii)
and (xv) above) and has made no independent check or verification thereof for
the purpose of rendering this opinion, on the basis of the foregoing (relying as
to materiality to a large extent upon the certificates of officers and other
representatives of the Company), 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 the Terms Agreement contained, and the Prospectus on
the date hereof 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.
Said counsel may state that they are admitted to practice only in the State
of Minnesota, that they are not admitted to the Bar in any other State and are
not experts in the law of any other State and to the extent that the foregoing
opinions concern the laws of any other State such counsel may rely upon the
opinion of counsel satisfactory to the Underwriters and admitted to practice in
such jurisdiction. Any opinions relied upon by such counsel as aforesaid shall
be addressed to the Underwriters and shall be delivered together with the
opinion of such counsel, which shall state that such counsel believes that their
reliance thereon is justified.
(2) The favorable opinion of counsel to the Trust, dated as of
the applicable Closing Time, addressed to you and in form and scope
satisfactory to your counsel, to the effect that:
(i) The Trust Agreement has been duly authorized, executed and
delivered by the Owner Trustee and is enforceable against the Owner
Trustee in accordance with its terms, subject to customary and usual
exceptions.
14
(ii) The Trust has been duly formed and is validly existing as a
business trust under Title 12, Delaware Code, Part V, Chapter 28 (the
"Business Trust Statute").
(iii) The Owner Trustee has full power and authority to execute
and deliver the Trust Agreement and to perform its obligations
thereunder.
(iv) To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened against
or affecting the Owner 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 Owner Trustee to carry out the transactions contemplated in the
Trust Agreement.
(v) 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 Owner Trustee is required
for the execution, delivery or performance by the Owner Trustee of the
Trust 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 Owner Trustee or public officials.
(3) To the extent specified in the applicable Terms Agreement,
if any of the Contracts constituting a portion of the Trust Fund with
respect to a Series have been or are being purchased by the Company from a
third party, the favorable opinion of counsel to such third party, dated as
of the applicable Closing Time, addressed to you and in form and scope
satisfactory to your counsel to the effect that such third party has
effectively conveyed to the Company all of its right, title and interest in
and to such Contracts as of the applicable Closing Time, and upon the
occurrence of any proceedings with respect to such third party under the
federal or state bankruptcy, insolvency or similar law, or the appointment
of or taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of such third party or of
any substantial part of its property or the making by such third party of
an assignment for the benefit of creditors, such Contracts would not be
deemed to be part of the assets of such third party pursuant to the
principles of substantive consolidation or otherwise.
15
(4) The favorable opinion or opinions, dated as of the
applicable Closing Time, of counsel for the Underwriters with respect to
the issue and sale of the Securities, the Registration Statement, this
Agreement, the Prospectus, the applicable Prospectus Supplement and other
related matters as the Underwriters may require.
(c) At the applicable Closing Time you shall have received a
certificate of the President or a Vice President of the Company, dated as
of such Closing Time, to the effect that the representations and warranties
of the Company contained in Section 1 are true and correct with the same
force and effect as though such Closing Time were a Representation Date.
(d) You shall have received from _____________________, or other
independent certified public accountants acceptable to you, a letter, dated
as of the date of the applicable Terms Agreement, or as soon thereafter as
is practicable, and as of the applicable Closing Time, delivered at such
times, in the form heretofore agreed to.
(e) At the applicable Closing Time you shall have received, addressed
to you, any additional opinions delivered by counsel pursuant to the
request of the Rating Agency or Rating Agencies rating the Securities.
(f) At the applicable 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 Securities as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of any of
the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to you and counsel
for the Underwriters.
(g) At the applicable Closing Time, each of the representations and
warranties of the Company set forth in the Trust Agreement and the Sale and
Servicing Agreement will be true and correct.
(h) As of the applicable Closing Time, any Limited Guaranty will have
been duly and validly authorized, executed and delivered by, and will
constitute a legal, valid and binding obligation of, the provider of such
Limited Guaranty, enforceable in accordance with its terms, subject to
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally
16
and as to enforceability, to general principles of equity (regardless
whether enforcement is sought in a proceeding in equity or at law).
(i) As of the applicable Closing Time, the Trust Agreement and the
Sale and Servicing Agreement will have been duly authorized, executed and
delivered by, and will constitute legal, valid and binding obligations of,
the Company, enforceable against the Company in accordance with their
terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally and
as to enforceability, to general principles of equity (regardless whether
enforcement is sought in a proceeding in equity or at law).
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms Agreement may be
terminated by you by notice to the Company at any time at or prior to the
applicable 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. The Company will pay all expenses
incident to the performance of its obligations 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,
each 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 Securities to the Underwriters, (iv)
the fees and disbursements of the Company's counsel and accountants, (v) the
qualification of the Securities under securities and Blue Sky laws and the
determination of the eligibility of the Securities for investment in accordance
with the provisions of Section 3(g), including filing fees, and the fees and
disbursements of counsel for the Underwriters 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 request, of copies of
the Trust Agreement, (viii) the fees charged by investment rating agencies for
rating the Securities, (ix) the fees and expenses incurred in connection with
the listing of the Securities on any national securities exchange, (x) the fees
and expenses incurred with respect to the National Association of Securities
Dealers,
17
Inc., including the fees and disbursements of counsel for the Underwriters in
connection therewith and (xi) the fees and expenses of the Owner Trustee, the
Indenture Trustee and their counsel.
If a Terms Agreement is terminated by you in accordance with the provisions
of Section 4 or Section 9(i) hereof, the Company shall reimburse you for all
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriter.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and hold
harmless the Underwriters and each person, if any, who controls the Underwriters
within the meaning of Section 15 of the 1933 Act as follows:
(1) 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 the Company by the Underwriters expressly
for use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto);
(2) 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 the Company or (B) if
such settlement is effected without the written consent of the Company more
than 30 days after receipt by the Company of a notice from the
Underwriters, substantially reflecting the proposed terms of such
settlement, to which the Company has not responded prior to the date such
settlement is effected; and
(3) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by you),
18
reasonably incurred in investigating, preparing to defend or defending
against any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above, which expenses shall be reimbursed as
they are incurred.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have. Insofar as this indemnity may permit
indemnification for liabilities under the 1933 Act of any person who is a
partner of the Underwriters entitled to indemnity hereby or who controls the
Underwriters within the meaning of Section 15 of the 1933 Act and who, at the
date of this Agreement, is a director, officer or controlling person of the
Company, such indemnity agreement is subject to the undertaking of the Company
in the Registration Statement.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of the Company's directors, each of the Company's
officers who signed the Registration Statement, and each person, if any,
who controls the Company 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, as incurred, 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 the Company by the Underwriters 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 which 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 but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have on account
of this indemnity agreement to the extent such indemnifying party was not
materially prejudiced by such failure or which it may have otherwise than
on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action. In no event
shall the indemnifying parties be liable for the fees and expenses of more
than one counsel (in addition to local counsel) for all indemnified parties
in connection with any one action or separate but
19
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company 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 the Company 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 such Prospectus
Supplement bears to the initial public offering price or prices as set forth
thereon, and the Company 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 the Company 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls the Underwriters within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Underwriters and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
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 the Company 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 the Company
and shall survive delivery of any Securities to the Underwriters.
SECTION 9. Termination of Agreement. This Agreement may be terminated for
any reason at any time by either the Company or you upon the giving of thirty
days' written notice of such termination
20
to the other party hereto. You, as Representative of the Underwriters named in
any Terms Agreement, may also terminate such Terms Agreement, immediately upon
notice to the Company, at any time at or prior to the applicable Closing Time
(i) if there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Registration Statement
or Prospectus any change, or any development involving a prospective change in,
or affecting, the condition, financial or otherwise, earnings, affairs or
business of the Company 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 Securities, or (ii) if there has occurred any
outbreak or escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
your judgment, impracticable to proceed with the offering or delivery of the
Securities or enforce contracts for the sale of the Securities, or (iii) if
trading generally on either the New York Stock Exchange or the American Stock
Exchange has been suspended, or minimum or maximum prices for securities have
been required, by either of said exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium has been declared by
either Federal, Minnesota or New York authorities. In the event of any such
termination, (A) the covenants set forth in Section 3 with respect to any
offering of Securities shall remain in effect so long as the Underwriters own
any such Securities purchased from the Company pursuant to the applicable 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, and 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 an offering of Securities shall fail at the
applicable Closing Time to purchase the Securities which it or they are
obligated to purchase hereunder and under the applicable Terms Agreement (the
"Defaulted Securities"), then such of you as are named therein 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 Securities 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:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated to purchase the full
amount
21
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all such non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Securities to be purchased
pursuant to such Terms Agreement, the applicable 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 applicable Terms Agreement.
In the event of a default by any Underwriters as set forth in this Section,
either you or the Company shall have the right to postpone the applicable
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
Underwriter shall be directed to you at the address set forth on the first page
hereof, attention of the Syndicate Registration Department. Notices to the
Company shall be directed to Green Tree Financial Corporation, 1100 Landmark
Towers, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of the
Secretary, with a copy to the Treasurer.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon you and the Company and any Terms Agreement shall inure to the
benefit of and be binding upon the Company and any Underwriter who becomes a
party to a Terms Agreement, and their respective successors. Nothing expressed
or mentioned in this Agreement or a Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
or thereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives any legal or equitable right, remedy or claim under or with
respect to this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any 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
22
rights as specified herein and therein) and for the benefit of no other person,
firm or corporation. No purchaser of Securities from any Underwriters shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement and each 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 any Terms Agreement may be
executed in counterparts, each of which shall constitute an original of any
party whose signature appears on it, and all of which shall together constitute
a single instrument.
23
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 and the
Company in accordance with its terms.
Very truly yours,
GREEN TREE FINANCIAL CORPORATION
By______________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
[UNDERWRITERS]
By___________________________________
Name:
Title:
24
EXHIBIT A
[Form of Terms Agreement]
GREEN TREE FINANCIAL CORPORATION
(Seller and Servicer)
Green Tree Recreational, Consumer & Equipment Trust 199___
TERMS AGREEMENT
---------------
Dated: ________________
To: Green Tree Financial Corporation, (the "Company")
Re: Underwriting Agreement dated _________________
Series Designation: Green Tree Recreational, Consumer & Equipment Trust 199___
------------------
Co-managers:
-----------
[Underwriters]
Terms of the Securities:
----------------------------------
Original
Principal Remittance
Securities Amount* Rate
----------------------- --------- ----------------
Class A-1 Notes ________ ____% per annum,
computed on the basis
of a 360-day year of
twelve 30-day months
Class A-2 Notes ________ ____% per annum,
computed on the basis
of a 360-day year of
twelve 30-day months
A-1
Certificates ________ ____% per annum,
computed on the basis
of a 360-day year of
twelve 30-day months
* Approximate. Subject to permitted variance of plus or minus 5%.
Security Ratings:
----------------
Class A-1 Notes: "____" by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and
"____" by both Standard & Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. ("S&P") and Fitch Investors Service, L.P. ("Fitch").
Class A-2 Notes: "____" by Moody's and "____" by both S&P and Fitch.
Certificates: "____" by Moody's and "____" by both S&P and Fitch.
Servicer:
--------
Green Tree Financial Corporation (in such capacity, the "Servicer")
Trust:
-----
The Trust shall include retail installment sales contracts and promissory
notes (the "Contracts") for the purchase of a variety of consumer products (the
"Products").
The Trust shall include (i) the Contracts, including all rights to receive
payments on the Contracts on and after the Cutoff Date, (ii) an assignment of
the Company's security interests in the Products and of the right to receive
proceeds from claims on certain insurance policies covering the Products or the
Obligors, (iii) the assignment of certain rights of the Company against the
Dealers originating such Contracts, (iv) the amounts held from time to time in
the Collection Account, including all investments therein, all income from the
investment of funds therein and all proceeds thereof, and (v) certain other
accounts and the proceeds thereof.
Credit Enhancement:
------------------
A-2
Distribution Dates:
------------------
The 15th day (or if such day is not a business day, the next succeeding
business day) of each month commencing ________________.
Purchase Price:
--------------
Subject to the terms of the following paragraph, the purchase price payable
by the Underwriters for the Securities is _____________% of the principal amount
of the Class A-1 Notes; _____________% of the principal amount of the Class A-2
Notes; and _____________% of the principal amount of the Certificates.
Any allocation of the Certificates between [Underwriter] and [Underwriter]
will be governed by the Agreement Among Underwriters.
Payment of the purchase price shall be in immediately available Federal
funds wired to such bank as may be designated by the Company.
Underwriting Commission:
-----------------------
Notwithstanding anything to the contrary in the Underwriting Agreement, no
additional underwriting commission shall be payable by the Company to the
Underwriters in connection with the purchase of the Securities.
Public Offering price and/or method of determining price at which the
Underwriters will sell the Securities:
Class A-1 Notes: %
Class A-2 Notes: %
Certificates: %
Closing Date and Location:
-------------------------
On or about ________________ at the offices of ▇▇▇▇▇ & ▇▇▇▇, One World
Trade Center, New York, New York.
A-3
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 and the
Company in accordance with its terms.
[UNDERWRITERS]
By:__________________________________
Name:
Title:
ACCEPTED:
GREEN TREE FINANCIAL CORPORATION
By:_______________________________
Name:
Title:
A-4
