Exhibit 1.1
B&W Draft 11/27/96
$___________
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1996-2, Class A
and
$__________
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1996-2, Class B
GREEN TREE FLOORPLAN RECEIVABLES MASTER TRUST
UNDERWRITING AGREEMENT
----------------------
December __, 1996
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
First Chicago Capital Markets Inc.
[Address]
Dear Sirs:
Green Tree Floorplan Funding Corp. ("GTFFC") is a Delaware corporation with
its principal place of business in Saint Xxxx, Minnesota. GTFFC has filed a
Registration Statement on Form S-1 (hereinafter referred to as the "Registration
Statement") relating to $___________ (Floating Rate) Floorplan Receivable Trust
Certificates, Series 1996-2, Class A and $__________ (Floating Rate) Floorplan
Receivable Trust Certificates, Series 1996-2, Class B (the "Offered
Certificates") evidencing interests in Green Tree Floorplan Receivables Master
Trust (the "Trust"). The Offered Certificates will be issued pursuant to a
pooling and servicing agreement (the "Pooling and Servicing Agreement") dated as
of December 1, 1995 among GTFFC, as transferor, Green Tree
Financial Corporation, as servicer ("Green Tree" or the "Servicer"), and Norwest
Bank Minnesota, National Association, as trustee (the "Trustee") and pursuant to
a 1996-2 Series Supplement to the Pooling and Servicing Agreement (the "Series
Supplement"), dated as of December 1, 1996 among GTFFC, as transferor, Green
Tree, as Servicer, and the Trustee, as trustee. The Pooling and Servicing
Agreement, as supplemented by the Series Supplement, is hereinafter referred to
as the "Pooling and Servicing Agreement." $_________ principal amount of Class
C Certificates (the "Class C Certificates"), $__________ principal amount of
Class D Certificates (the "Class D Certificates") and the Exchangeable
Transferor's Certificate (together with the Offered Certificates, the Class C
Certificates and the Class D Certificates, the "Certificates") will also be
issued pursuant to the Pooling and Servicing Agreement. The assets of the Trust
will consist of (i) all wholesale receivables (the "Receivables") generated from
time to time in a portfolio of revolving financing arrangements between Green
Tree and certain dealers in consumer and commercial products (the "Accounts")
satisfying certain criteria described in the Prospectus, (ii) all funds
collected from Obligors in respect of the Receivables, (iii) all right, title,
and interest of GTFFC in, to, and under a receivables purchase agreement (the
"Purchase Agreement"), dated as of December 1, 1995 between GTFFC and Green
Tree, (iv) all funds on deposit in the Trust Accounts, (v) Recoveries, (vi) an
assignment of a security interest in the Collateral Security, (vii) GTFFC's
rights under all Floorplan Agreements, and (viii) proceeds of the foregoing.
The Receivables will be purchased from Green Tree by GTFFC pursuant to the
Purchase Agreement and thereafter transferred to the Trust. The forms of the
Pooling and Servicing Agreement and the Series Supplement have been filed as
exhibits to the Registration Statement. Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement, the Series Supplement and the Purchase Agreement (together, the
"Designated Agreements"). GTFFC and Green Tree will be referred to collectively
herein as the "Green Tree Parties."
The Certificates are more fully described in a Registration Statement that
GTFFC has furnished to you. The terms "you" or "Underwriters" as used herein,
unless the context otherwise requires, shall mean you, acting severally and not
jointly under this Agreement. The term "Representative" refers to Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated acting as Representative of the
Underwriters.
The offering of the Offered Certificates will be made through you. GTFFC
and Green Tree will also enter into an agreement (the "Terms Agreement")
providing for the sale of such Offered Certificates to, and the purchase thereof
by, you,
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severally and not jointly. The Terms Agreement shall specify, among other
things, the price or prices at which the Offered Certificates are to be
purchased by the Underwriters from the Trust and the initial public offering
price or prices or the method by which the price or prices at which the Offered
Certificates are to be sold will be determined. The Terms Agreement, which
shall be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between you and
GTFFC. The offering of the Offered Certificates will be governed by this
Agreement, as supplemented by the Terms Agreement.
GTFFC has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 33-_____) and a related
preliminary prospectus for the registration of the Offered Certificates under
the Securities Act of 1933 (the "1933 Act"), and has filed, and proposes to
file, such amendments thereto as may have been required to the date hereof
pursuant to the 1933 Act and the rules of the Commission thereunder (the
"Regulations"). The registration statement (including the prospectus
constituting a part thereof and the information, if any, deemed to be part
thereof pursuant to Rule 430A(b) of the Regulations) in the form in which it
became effective under the Act on December __, 1996 (the "Effective Date"),
including the exhibits thereto, is referred to herein as the "Registration
Statement", and the prospectus dated December __, 1996 in the form in which it
was most recently filed with the Commission (including the information, if any,
deemed to be part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations)
is referred to herein as the "Prospectus", except that if any revised prospectus
shall be provided to you by GTFFC for use in connection with the offering of the
Offered Certificates which differs from the Prospectus on file at the Commission
at the time the Registration Statement becomes effective (whether or not such
revised prospectus is required to be filed by GTFFC pursuant to Rule 424(b) of
the 1933 Act Regulations), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to you for such use.
GTFFC understands that you propose to make a public offering of the Offered
Certificates as soon as you deem advisable after this Agreement and the Terms
Agreement have been executed and delivered.
SECTION 1. Representations and Warranties. Each of GTFFC and Green Tree
represents and warrants to you as of the date hereof, as of the date of the
Terms Agreement (the "Representation Date") and as of the Closing Time (as
defined below) as follows:
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(a) The Registration Statement and the Prospectus do, on the
Effective Date and on the date hereof, and as of the Representation Date
will, comply in all material respects with the requirements of the 1933 Act
and the Regulations. The Registration Statement, on the Effective Date and
on the date hereof, did not and does not, and as of the Representation Date
and the Closing Time will not, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus, as
amended or supplemented on the Effective Date and on the date hereof, did
not and does not, and as amended or supplemented as of the Representation
Date and the Closing Time will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in, or
omissions from, the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to GTFFC in writing by
any Underwriter through the Representative expressly for use in the
Registration Statement or Prospectus. There are no contracts or documents
of GTFFC which are required to be filed as exhibits to the Registration
Statement pursuant to the 1933 Act or the Regulations which have not been
so filed or incorporated by reference.
(b) Each of GTFFC and Green Tree has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
state of Delaware, with corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement, the Designated Agreements and the Terms Agreement as such Green
Tree Party may be a party to; and each of the Green Tree Parties is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the ownership or lease of its
properties or the conduct of its business under the Designated Agreements
requires such qualification.
(c) Neither GTFFC nor Green Tree is in violation of its certificate
of incorporation or by-laws or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or its properties may be
bound, which default might result in any material adverse change in its
financial condition, earn-
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ings, affairs or business or which might materially and adversely affect
the properties or assets thereof.
(d) The execution and delivery of this Agreement, the Terms Agreement
and the Designated Agreements by GTFFC and Green Tree are within the
corporate power of GTFFC and Green Tree, respectively, and have been duly
authorized by all necessary corporate action on the part of GTFFC and Green
Tree; and neither the issuance and sale of the Offered Certificates to the
Underwriters, nor the execution and delivery of this Agreement, the Terms
Agreement or the Designated Agreements by GTFFC or Green Tree, nor the
consummation by GTFFC or Green Tree of any of the transactions therein
contemplated, nor compliance by GTFFC or Green Tree with the provisions
hereof or thereof, will materially conflict with or result in a material
breach of, or constitute a material default under, any of the provisions of
any law, governmental rule, regulation, judgment, decree or order binding
on GTFFC or Green Tree or their respective properties or the certificate of
incorporation or by-laws of GTFFC or Green Tree, or any of the provisions
of any indenture, mortgage, contract or other instrument to which GTFFC or
Green Tree is a party or by which it is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of their respective
properties pursuant to the terms of any such indenture, mortgage, contract
or other instrument.
(e) This Agreement has been, and the Terms Agreement when executed
and delivered as contemplated hereby and thereby will have been, duly
authorized, executed and delivered by GTFFC and Green Tree, and each
constitutes, or will constitute when so executed and delivered, a legal,
valid and binding instrument enforceable against GTFFC and Green Tree in
accordance with its terms, subject (i) to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors rights generally, (ii) as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (iii) as to enforceability with respect
to rights of indemnity thereunder, to limitations of public policy under
securities laws.
(f) The Designated Agreements, when executed and delivered as
contemplated hereby and thereby, will have been duly authorized, executed
and delivered by GTFFC and Green Tree, and will constitute, when so
executed and delivered, a legal, valid and binding agreements, enforceable
against GTFFC and Green Tree in accordance with their respective terms,
subject (i) to applicable bankruptcy, reorganization,
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insolvency, moratorium or other similar laws affecting creditors' rights
generally and (ii) as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law).
(g) As of the Closing Time, the Certificates will have been duly and
validly authorized, and, when executed and authenticated as specified in
the Pooling and Servicing Agreement, will be validly issued and outstanding
and will be entitled to the benefits of the Pooling and Servicing
Agreement, and will be binding obligations of the Trust to the extent
provided in the Pooling and Servicing Agreement.
(h) No filing or registration with, notice to or consent, approval,
authorization or order of any court or governmental authority or agency is
required for the consummation by GTFFC or Green Tree of the transactions
contemplated by this Agreement, any of the Designated Agreements or the
Terms Agreement, except such as may be required under the 1933 Act, the
Regulations, or state securities or Blue Sky laws.
(i) There are no proceedings or investigations pending or, to the best
knowledge of GTFFC or Green Tree, threatened against GTFFC or Green Tree
before any governmental authority (i) asserting the invalidity of any
Designated Agreement or of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated thereby, (iii) seeking
any determination or ruling that would materially and adversely affect the
performance by GTFFC or Green Tree of its obligations thereunder or the
ability of Green Tree to originate Receivables, (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability thereof or (v) seeking to affect adversely the
tax attributes of the Trust.
(j) Each of GTFFC and Green Tree possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
business now operated by it or as described in the Prospectus and has not
received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the conduct of the
business, operations, financial condition or income of GTFFC or Green Tree,
respectively.
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(k) Neither GTFFC, Green Tree nor the Trust will be subject to
registration as an "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act").
(l) The Certificates and the Designated Agreements conform in all
material respects to the descriptions thereof contained in the Prospectus.
(m) At the Closing Time, the Offered Certificates shall have received
the certificate ratings specified in the Terms Agreement.
(n) At the Closing Time, each of the representations and warranties
of GTFFC and Green Tree set forth in any of the Designated Agreements will
be true and correct.
SECTION 2. Purchase and Sale. The commitment of the Underwriters to
purchase the Offered Certificates pursuant to the Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
Payment of the purchase price for, and delivery of, the Offered
Certificates to be purchased by you shall be made at the office of Xxxxxx &
Xxxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, or at such
other place as shall be agreed upon by you and GTFFC, at such time or date as
shall be agreed upon by you and GTFFC and Green Tree in the Terms Agreement
(such time and date being referred to as the "Closing Time"). Payment shall be
made to or at the direction of GTFFC, in immediately available Federal funds
wired to such bank as may be designated by GTFFC. The Offered Certificates
shall be in such denominations specified by the Representative and registered in
the name of Cede & Co., unless the Representative shall otherwise specify in
writing at least two business days prior to the Closing Time. The Offered
Certificates, which may be in temporary form, will be made available for
examination and packaging by you no later than 12:00 noon on the first business
day prior to the Closing Time.
SECTION 3. Covenants of GTFFC and Green Tree. GTFFC and Green Tree
covenant with you as follows:
(a) Immediately following the execution of this Agreement and the
Terms Agreement, GTFFC will prepare the Prospectus setting forth the
principal amount of the Offered Certificates, the price at which the
Offered Certificates are to be purchased by you, either the initial public
offering price or the method by which the price by which the Offered
Certificates are to be sold will be determined, the
7
selling concession(s) and reallowance(s), if any, and such other
information as you and GTFFC deem appropriate in connection with the
offering of the Offered Certificates. GTFFC will, to the extent required
by the Regulations, promptly transmit copies of the Prospectus to the
Commission for filing pursuant to Rule 424 under the 1933 Act and will
furnish to you as many copies of the Prospectus as you shall reasonably
request.
(b) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Certificates by you,
any event shall occur or condition exist as a result of which it is
necessary, in the opinion of your counsel, counsel for GTFFC, or otherwise,
to further amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of
circumstances existing at the time it is delivered to a purchaser, not
misleading or if it shall be necessary, in the opinion of any such counsel
or otherwise, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
1933 Act or the Regulations thereunder, GTFFC will promptly prepare and
will (1) file with the Commission such amendment or supplement as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement comply with such requirements and (2) within two
business days will furnish to you as many copies of the Prospectus, as so
amended or supplemented, as you shall reasonably request.
(c) GTFFC will give you reasonable notice of any intention to file
any amendment to the Registration Statement or any amendment or supplement
to the Prospectus, whether pursuant to the 1933 Act or otherwise (other
than reports to be filed pursuant to the Securities Exchange Act of 1934,
as amended (the "1934 Act")), and GTFFC will furnish you with copies of any
such amendment or supplement or other documents proposed to be filed a
reasonable time in advance of filing, and will not file any such amendment
or supplement or other documents in a form to which you or your counsel
shall object.
(d) GTFFC will notify you immediately, and confirm the notice in
writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing
of any supplement to the Prospectus or any document, other than reports to
be filed pursuant to the 1934 Act, (iii) of the receipt of any comments
from the Commission with respect to the Xxxxxxxx-
0
tion Statement or the Prospectus, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or suspension of the qualification of the
Certificates or the initiation of any proceedings for that purpose. GTFFC
will make every reasonable effort to prevent the issuance of any such stop
order and, if any such stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(e) GTFFC will deliver to you as many signed and as many conformed
copies of the Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein) as you may reasonably request.
(f) GTFFC will endeavor, in cooperation with you, to qualify the
Certificates for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as you may
designate, and will maintain or cause to be maintained such qualifications
in effect for as long as may be required for the distribution of the
Certificates. GTFFC will file or cause the filing of such statements and
reports as may be required by the laws of each jurisdiction in which the
Certificates have been qualified as above provided.
SECTION 4. Conditions of Underwriter's Obligations. The obligations of
the Underwriters to purchase the Offered Certificates pursuant to the Terms
Agreement are subject to the accuracy of the representations and warranties on
the part of GTFFC and Green Tree herein contained, to the accuracy of the
statements of officers of GTFFC and Green Tree made pursuant hereto, to the
performance by each of GTFFC and Green Tree of all of its obligations hereunder
and to the following further conditions:
(a) The Registration Statement shall have become effective not later than
4:00 p.m., New York time, on the day following the date of this Agreement or
such later date as shall have been consented to by the Representative; and at
the Closing Time (i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued or proceedings therefor initiated
or threatened by the Commission, (ii) the Offered Certificates shall have
received the ratings specified in the Terms Agreement, and (iii) there shall not
have come to your attention any facts that would cause you to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of the
9
Offered Certificates, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not misleading. If
GTFFC has elected to rely upon Rule 430A of the Regulations, the price of the
Offered Certificates and any price-related information previously omitted from
the effective Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the prescribed time period, and prior to Closing Time GTFFC
shall have provided evidence satisfactory to the Representative of such timely
filing, or a post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirements of
Rule 430A of the Regulations.
(b) At or prior to the Closing Time you shall have received:
(1) The favorable opinion (the "Underwriter Opinion"), dated as of the
Closing Time, of Xxxxxx & Xxxxxxx LLP, special counsel for GTFFC and Green Tree,
in form and substance satisfactory to you and your counsel, to the effect that:
(i) Each of GTFFC and Green Tree has been duly organized and is
validly existing as a corporation in good standing under the laws of
the State of Delaware.
(ii) The execution and delivery by each of GTFFC and Green Tree
of this Agreement, the Terms Agreement, the Purchase Agreement and the
Pooling and Servicing Agreement and the signing of the Registration
Statement by GTFFC are within the corporate power of GTFFC and Green
Tree, respectively, and each has been duly authorized by all necessary
corporate action on the part of each of GTFFC and Green Tree.
(iii) This Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by each of GTFFC and
Green Tree, and each is a valid and binding obligation of each of
GTFFC and Green Tree enforceable against GTFFC and Green Tree in
accordance with its terms, except that (A) such enforcement may be
subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' or secured parties' rights generally, (B) such
enforcement may be limited by general principles of equity, including
(without limitation) concepts of materiality, reasonableness, good
faith and fair dealing, and other
10
similar doctrines affecting the enforceability of agreements generally
(regardless of whether enforcement is sought in a proceeding in equity
or at law), and (C) the enforceability as to rights to indemnity
thereunder is subject to the effect of federal and state securities
laws and public policy relating thereto.
(iv) The Designated Agreements have been duly authorized,
executed and delivered by GTFFC and Green Tree, and are the valid and
binding obligations of GTFFC and Green Tree enforceable against GTFFC
and Green Tree in accordance with their respective terms, except that
(A) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) such
enforcement may be limited by general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).
(v) None of the transfer of the Receivables to the Trust, the
issue and sale of the Certificates or the consummation of the
transactions contemplated herein nor the fulfillment of the terms
hereof or of the Designated Agreements will, to the best of such
counsel's knowledge, conflict with or constitute a breach of, or
default under, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which GTFFC or Green Tree is a
party or by which either of them may be bound or to which the property
or assets of either of them are subject (which contracts, indentures,
mortgages, loan agreements, notes, leases and other such instruments
have been identified by GTFFC and Green Tree to such counsel), nor
will such action result in any violation of the provisions of the
certificate of incorporation or by-laws of GTFFC or Green Tree or, to
the best of such counsel's knowledge, any order or regulation known to
such counsel to be applicable to GTFFC or Green Tree of any state or
federal court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over GTFFC or Green Tree.
(vi) The Certificates have been duly authorized and, when
executed and authenticated as specified in the Pooling and Servicing
Agreement and delivered and, in the case of the Offered Certificates,
paid for pursuant to this Agreement and the Terms Agreement, will be
duly issued and entitled to the benefits of the Pooling and Servicing
Agreement.
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(vii) The Receivables are either "chattel paper", "accounts" or
"general intangibles" under the UCC. The Purchase Agreement creates,
in favor of GTFFC, a valid security interest (as such term is defined
in Section 1-201 of the UCC) in the Receivables now existing and
hereafter created that are either chattel paper or accounts, which
security interest, if characterized as a transfer for security, will
secure the "Secured Obligations" (as defined in the Pooling and
Servicing Agreement) and, in the case of Receivables that are general
intangibles, is effective to transfer Green Tree's ownership interest
in such Receivables to GTFFC. The Pooling and Servicing Agreement
creates, in favor of the Trustee for the benefit of the
Certificateholders, a valid security interest (as such term is defined
in Section 1-201 of the UCC) in the Receivables now existing and
hereafter created, which security interest, if characterized as a
transfer for security, will secure the "Secured Obligations" (as
defined in the Pooling and Servicing Agreement), and, in the case of
Receivables that are general intangibles, is effective to transfer
GTFFC's ownership interest in such Receivables to the Trustee. The
perfection and the effect of perfection or nonperfection of the
ownership or security interests in the Receivables created pursuant to
the Purchase Agreement or the Pooling and Servicing Agreement will be
governed by the laws of the State of Minnesota. The UCC-1 financing
statements are in appropriate form for filing with the Secretary of
State of Minnesota. Upon the filing of the UCC-1 financing statements
in the office of the Secretary of State of Minnesota, GTFFC will have
a perfected ownership interest in the Receivables, which ownership
interest shall have priority over any other security interest in the
Receivables, and the Trustee will have a perfected ownership or
security interest in the Receivables, which ownership or security
interest shall have priority over any other security interest in the
Receivables. In rendering such opinion, such counsel may take
customary exceptions acceptable to you.
(viii) To the best of such counsel's knowledge, no filing or
registration with or notice to or consent, approval, authorization or
order of any Minnesota or federal court or governmental authority or
agency is required to be obtained by GTFFC or Green Tree for the
consummation by GTFFC or Green Tree of the transactions contemplated
by this Agreement, the Terms Agreement or the Designated Agreements,
except such as may be re-
12
quired under the 1933 Act or the Regulations, or state securities or
Blue Sky laws.
(ix) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(x) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
(xi) To the best of such counsel's knowledge, there are no
contracts or documents which are required to be filed as exhibits to
the Registration Statement pursuant to the 1933 Act or the Regulations
thereunder which have not been so filed or incorporated by reference.
(xii) The statements in the Prospectus under the heading
"Certain Federal Income Tax Consequences," to the extent that they
constitute statements of law or legal conclusions as to the likely
outcome of material issues under the federal income tax laws, have
been prepared or reviewed by such counsel and are correct in all
material respects.
(xiii) The Trust created by the Pooling and Servicing Agreement
is not, and will not as a result of the offer and sale of the Offered
Certificates as contemplated in the Prospectus and in this Agreement
become, an "investment company" as such term is defined in the 1940
Act.
(xiv) The statements in the Prospectus under the caption
"Description of the Certificates," insofar as such statements purport
to summarize certain terms of the Certificates and the Pooling and
Servicing Agreement, constitute a fair and accurate summary of such
documents.
(xv) The statements in the Prospectus under the headings "Risk
Factors--Transfer of the Receivables; Insolvency Risk Considerations",
"Certain Legal Aspects of the Receivables--Certain Matters Relating to
Bankruptcy" and "Employee Benefit Plan Considerations", to the extent
that they constitute statements of law or legal conclusions with
respect thereto, have been re-
13
viewed by such counsel and are correct in all material respects.
(xvi) The Certificates, the Pooling and Servicing Agreement and
the Underwriting Agreement conform in all material respects to the
descriptions thereof contained in the Prospectus.
(xvii) The Registration Statement and the Prospectus (other than
the financial statements and other financial, statistical and
numerical information included therein, as to which no opinion need be
rendered) as of their respective effective or issue dates, complied as
to form in all material respects with the requirements of the 1933 Act
and the Regulations thereunder.
(xviii) The execution, delivery and performance by GTFFC or
Green Tree of the Designated Agreements do not require the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of any federal, state or other
governmental agency or authority which has not previously been
effected.
(xix) To such counsel's knowledge, there are no pending or
overtly threatened lawsuits or claims against GTFFC or Green Tree or
relating to the transactions contemplated by this Agreement or the
Designated Agreements which, if adversely determined, would have a
materially adverse effect on the transactions contemplated by this
Agreement and the Designated Agreements.
Such counsel shall deliver to you such additional opinions addressing the
transfer by Green Tree to GTFFC and the transfer by GTFFC to the Trust of each
of its right, title and interest in and to the Receivables and other property
included in the Trust on the Closing Time as may be reasonably required by the
Rating Agencies rating the Offered Certificates.
Such counsel shall state that it has participated in conferences with
officers and other representatives of GTFFC and Green Tree, your counsel,
representatives of the independent accountants for GTFFC and Green Tree and you
at which the contents of the Registration Statement and the Prospectus were
discussed and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs
14
(xii), (xiv), (xv) and (xvi) above) and has made no independent check or
verification thereof for the purpose of rendering this opinion, on the basis of
the foregoing (relying as to materiality to a large extent upon the certificates
of officers and other representatives of GTFFC and Green Tree), nothing has come
to their attention that leads such counsel to believe that the Registration
Statement, when it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Registration Statement and the Prospectus on the date of this Agreement and the
Terms Agreement contained, and the Prospectus at Closing Time contains, any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that such
counsel need express no view with respect to the financial statements, schedules
and other financial, statistical and numerical data included in or incorporated
by reference into the Registration Statement or the Prospectus.
Such counsel may state that they are admitted to practice only in the State
of Minnesota, that they are not admitted to the Bar in any other State and are
not experts in the law of any other State and to the extent that the foregoing
opinions concern the laws of any other State such counsel may rely upon the
opinion of counsel satisfactory to you and admitted to practice in such
jurisdiction. Any opinions relied upon by such counsel as aforesaid shall be
addressed to you and shall be delivered together with the opinion of such
counsel, which shall state that such counsel believes that their reliance
thereon is justified.
(2) The favorable opinion, dated as of the applicable Closing Time, of
Xxxx X. Xxxxxxxxx, Senior Vice President and General Counsel to Green Tree,
as Servicer of the Receivables, in form and substance satisfactory to you
and your counsel, to the effect that:
(i) There are no pending or, to his knowledge, threatened
litigation or administrative proceeding of or before any court,
tribunal or governmental agency, authority or body or any arbitrator
which, if adversely determined, would have a material adverse effect
on the financial condition of GTFFC or Green Tree.
(ii) Each of GTFFC and Green Tree is qualified to do business,
and is in good standing, as a foreign corporation in each U.S.
jurisdiction in which the character of the business owned or leased by
it makes such qualification necessary, except where the failure
15
to be so qualified would not have a material adverse effect on the
financial condition of Green Tree.
(iii) Each of GTFFC and Green Tree possesses all material
licenses, certificates, authorities or permits issued by the
appropriate state or federal regulatory agencies or bodies necessary
to conduct the business now conducted by it and as described in the
Prospectus, except to the extent that the failure to have such
licenses, certificates, authorities or permits does not have a
material adverse effect on the Receivables or the Certificates or the
financial condition of GTFFC or Green Tree, and neither GTFFC nor
Green Tree has received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of its business, operations or financial
condition.
(iv) At the time of the transfer of the Receivables to GTFFC,
Green Tree owned the Receivables free and clear of any lien, security
interest, charge or other interests of others, except such liens as
are permitted under the Pooling and Servicing Agreement.
(3) The favorable opinion of counsel to the Trustee, dated as of the
Closing Time, addressed to you and in form and scope satisfactory to your
counsel, to the effect that:
(i) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee and is enforceable against the
Trustee in accordance with its terms, subject to customary and usual
exceptions.
(ii) The Trustee has full power and authority to execute and
deliver the Pooling and Servicing Agreement and to perform its
obligations thereunder.
(iii) To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened against
or affecting the Trustee before or by any court, arbitrator,
administrative agency or other governmental authority which, if
adversely decided, would materially and adversely affect the ability
of the Trustee to carry out the transactions contemplated in the
Pooling and Servicing Agreement.
16
(iv) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body
of the jurisdiction of incorporation of the Trustee is required for
the execution, delivery or performance by the Trustee of the Pooling
and Servicing Agreement.
In rendering such opinion, such counsel may rely, as to matters of fact, to
the extent deemed proper and stated therein, on certificates of responsible
officers of the Trustee or public officials.
(4) The favorable opinion or opinions, dated as of the Closing Time,
of counsel for the Underwriters with respect to the issue and sale of the
Certificates, the Registration Statement, this Agreement, the Prospectus
and other related matters as you may require.
(c) You shall have received from Xxxxxx & Whitney LLP, special counsel for
GTFFC, an opinion, dated as of the Closing Time and satisfactory in form and
substance to the Representative and to counsel to the Underwriters, to the
effect that the Offered Certificates will be characterized for Minnesota income
and franchise tax purposes as indebtedness secured by the Receivables and
Certificateholders not otherwise subject to taxation in Minnesota will not be
subject to tax in respect of the Offered Certificates.
(d) At the Closing Time you shall have received a certificate of the
President or a Vice President of each of GTFFC and Green Tree, dated as of such
Closing Time, to the effect that (i) the representations and warranties of each
of GTFFC and Green Tree contained in Section 1 are true and correct with the
same force and effect as though such Closing Time were the Representation Date;
(ii) GTFFC or Green Tree, as applicable, has complied in all material respects
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied under this Agreement at or prior to the Closing Time;
(iii) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been initiated or, to
GTFFC's or Green Tree's knowledge, threatened by the Commission as of the
Closing Time; and (iv) nothing has come to such person's attention that would
lead such person to believe that the Prospectus contains an untrue statement of
a material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(e) You shall have received from KPMG Peat Marwick LLP, or other
independent certified public accountants acceptable to you,
17
a letter, dated as of the Closing Time, delivered at such times, in the form
heretofore agreed to.
(f) At the Closing Time you shall have received, addressed to you, any
additional opinions delivered by counsel pursuant to the request of the Rating
Agencies rating the Offered Certificates.
(g) The Representative shall have received facsimile confirmation from a
filing service that (i) a copy of the UCC-1 financing statement on Form UCC-1
has been filed with the Secretary of State of the State of Minnesota with
respect to the transfer of the Receivables by Green Tree to GTFFC pursuant to
the Purchase Agreement, identifying the Receivables as collateral and naming
Green Tree as debtor and GTFFC as the secured party, and (ii) a copy of the UCC-
1 financing statement on Form UCC-1 has been filed with the Secretary of State
of the State of Minnesota with respect to the transfer of the Receivables by
GTFFC to the Trustee pursuant to the Pooling and Servicing Agreement,
identifying the Receivables as collateral and naming GTFFC as debtor and the
Trustee as the secured party.
(h) At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they reasonably may require for
the purpose of enabling them to pass upon the issuance and sale of the Offered
Certificates as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by GTFFC and Green Tree in connection with the issuance
and sale of the Certificates as herein contemplated shall be satisfactory in
form and substance to you and counsel for the Underwriters.
(i) As of the Closing Time, each of the Designated Agreements will have
been duly authorized, executed and delivered by, and will constitute a legal,
valid and binding obligation of, and will be enforceable against each of GTFFC
and Green Tree, in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally and as to enforceability, to general principles of
equity (regardless whether enforcement is sought in a proceeding in equity or at
law).
(j) At the Closing Time, Standard & Poor's Ratings Services, A Division of
The XxXxxx-Xxxx Companies, Inc. shall have delivered a letter to GTFFC stating
that the Class A Certificates are rated "AAA" and the Class B Certificates are
rated "A" and Xxxxx'x Investor Service, Inc. shall have delivered
18
a letter to GTFFC stating that the Class A Certificates are rated "Aaa" and the
Class B Certificates are rated "A3".
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement and the Terms Agreement may
be terminated by you by notice to GTFFC at any time at or prior to the Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 5.
SECTION 5. Payment of Expenses. Green Tree will pay all expenses incident
to the performance of the obligations of GTFFC or Green Tree under this
Agreement, including without limitation those related to (i) the filing of the
Registration Statement and all amendments thereto, (ii) the printing and
delivery to the Underwriters, in such quantities as you may reasonably request,
of copies of this Agreement, the Terms Agreement, any agreements among
underwriters and selling agreements and the Underwriters' questionnaires and
powers of attorney, (iii) the preparation, issuance and delivery of the Offered
Certificates to the Underwriters, (iv) the fees and disbursements of GTFFC's and
Green Tree's counsel and accountants, (v) the qualification of the Offered
Certificates under securities and Blue Sky laws and the determination of the
eligibility of the Offered Certificates for investment in accordance with the
provisions of Section 3(g), including filing fees, and the fees and
disbursements of your counsel in connection therewith and in connection with the
preparation of any Blue Sky Survey and Legal Investment Survey, (vi) the
printing and delivery to the Underwriters, in such quantities as you may
reasonably request, hereinafter stated, of copies of the Registration Statement
and Prospectus and all amendments and supplements thereto, and of any Blue Sky
Survey and Legal Investment Survey, (vii) the printing and delivery to the
Underwriters, in such quantities as you may reasonably request, of copies of the
Pooling and Servicing Agreement, (viii) the fees charged by the Rating Agencies
for rating the Offered Certificates, (ix) the fees and expenses incurred in
connection with the listing of the Offered Certificates on any securities
exchange, (x) the fees and expenses, if any, incurred with respect to the
National Association of Securities Dealers, Inc., including the fees and
disbursements of counsel for you in connection therewith and (xi) the fees and
expenses of the Trustee and its counsel.
If this Agreement and the Terms Agreement is terminated by you in
accordance with the provisions of Section 4 or Section 9(i) hereof, Green Tree
shall reimburse you for all reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
19
SECTION 6. Indemnification. (a) GTFFC and Green Tree, jointly and
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless such untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information furnished to GTFFC by
any Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, (A) if such settlement is effected with
the written consent of GTFFC or (B) if such settlement is effected without the
written consent of GTFFC more than 30 days after receipt by GTFFC of a notice
from the Underwriters, substantially reflecting the proposed terms of such
settlement, to which GTFFC has not responded prior to the date such settlement
is effected; and
(iii) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by you), reasonably incurred in investigating,
preparing to defend or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above, which expenses shall
be reimbursed as they are incurred.
This indemnity agreement will be in addition to any liability which either
GTFFC or Green Tree may otherwise have. Insofar as this indemnity may permit
indemnification for liabilities
20
under the 1933 Act of any person who is a partner of any Underwriter entitled to
indemnity hereby or who controls any Underwriter within the meaning of Section
15 of the 1933 Act and who, at the date of this Agreement is a director, officer
or controlling person of either GTFFC or Green Tree, such indemnity agreement is
subject to the undertaking of GTFFC in the Registration Statement.
(b) Each Underwriter severally agrees to indemnify and hold harmless each
of GTFFC and Green Tree, each director of GTFFC or Green Tree, each of GTFFC's
officers who signed the Registration Statement, and each person, if any, who
controls either GTFFC or Green Tree within the meaning of Section 15 of the 1933
Act against any and all loss, liability, claim, damage and expense described in
the indemnity contained in subsection (a) of this Section, but only with respect
to untrue statements or omissions or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to GTFFC by any Underwriter through the
Representative expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto). This
indemnity agreement will be in addition to any liability that such Underwriter
may otherwise have.
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it with respect to which indemnity may be
sought hereunder but failure to so notify an indemnifying party shall not
relieve it from any liability that it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense in
the defense of such action. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in addition to local
counsel) for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, GTFFC and Green Tree
on the one hand, and the Underwriters, on the other, shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by GTFFC and Green Tree and
one or more of the Underwriters (i) in such proportion as shall be appropriate
to reflect the relative benefit received by the Underwriters, as represented by
21
the percentage that the Underwriting discount or discounts on the cover of the
Prospectus bears to the initial public offering price or prices as set forth
thereon, and GTFFC and Green Tree, as applicable, shall be responsible for the
balance; or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
benefit referred to in clause (i) above but also the relative fault of GTFFC and
Green Tree, as applicable, on the one hand and the Underwriters on the other
with respect to statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation and, provided further, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price of the
Offered Certificates purchased by such Underwriter pursuant to the Terms
Agreement exceeds the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. For purposes of this Section, each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Underwriters and each
director of GTFFC or Green Tree, each officer of GTFFC who signed the
Registration Statement, and each person, if any, who controls GTFFC or Green
Tree within the meaning of Section 15 of the 1933 Act shall have the same rights
to contribution as GTFFC and Green Tree.
SECTION 8. Representations, Warranties and Agreements to survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of Officers of GTFFC or Green Tree submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
termination of this Agreement, or any investigation made by or on behalf of the
Underwriters or controlling person thereof, or by or on behalf of GTFFC or Green
Tree and shall survive delivery of any Offered Certificates to the Underwriters.
SECTION 9. Termination of Agreement. The Representative may terminate
this Agreement and the Terms Agreement, immediately upon notice to GTFFC, at any
time at or prior to the Closing Time (i) if there has been, since the date of
the Terms Agreement or since the respective dates as of which information is
given in the Registration Statement or the Prospectus any change, or any
development involving a prospective change in, or affecting, the condition,
financial or otherwise, earnings, affairs or business of GTFFC or Green Tree
whether or not arising in the ordinary
22
course of business, which in your judgment would materially impair the market
for, or the investment quality of, the Offered Certificates, or (ii) if there
has occurred any outbreak of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make it, in
the judgment of the Representative, impracticable to market the Offered
Certificates or enforce contracts for the sale of the Offered Certificates, or
(iii) if trading generally on either the New York Stock Exchange or the American
Stock Exchange has been suspended, or minimum or maximum prices for securities
have been required, by either of said exchanges or by order of the Commission or
any other governmental authority, or if a banking moratorium has been declared
by either Federal, Minnesota or New York authorities. In the event of any such
termination, (A) the covenants set forth in Section 3 with respect to the
offering of the Offered Certificates shall remain in effect so long as the
Underwriters own any Offered Certificates purchased pursuant to the Terms
Agreement and (B) the covenant set forth in Section 3(c), the provisions of
Section 5, the indemnity agreement set forth in Section 6, 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 the offering of the Offered Certificates shall
fail at the Closing Time to purchase the Offered Certificates which it or they
are obligated to purchase hereunder and under the Terms Agreement (the
"Defaulted Certificates"), then the Representative shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Certificates in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, you have not completed such arrangements
within such 24-hour period, then:
(1) if the aggregate principal amount of Defaulted Certificates does
not exceed 10% of the aggregate principal amount of the Offered
Certificates to be purchased pursuant to such Terms Agreement, the non-
defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all such non-defaulting
Underwriters, or
(2) if the aggregate principal amount of Defaulted Certificates
exceeds 10% of the aggregate principal amount of the Certificates to be
purchased pursuant to such Terms Agreement, the Terms Agreement shall
terminate, without any liability on the part of any non-defaulting
Underwriters.
23
No action taken pursuant to this Section shall relieve any defaulting
Underwriters from liability with respect to any default of such Underwriters
under this Agreement and the Terms Agreement.
In the event of a default by any Underwriters as set forth in this Section,
either the Representative or GTFFC shall have the right to postpone the Closing
Time for a period of time not exceeding seven days in order that any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements may be effected.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you at the respective addresses set forth on
the first page hereof, attention of the Syndicate Department. Notices to GTFFC
shall be directed to Green Tree Floorplan Funding Corp., 500 Landmark Towers,
000 Xx. Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxx, 00000-0000, Attention of the
Secretary, with a copy to the Treasurer. Notices to Green Tree shall be directed
to Green Tree Financial Corporation, 1100 Landmark Towers, 000 Xx. Xxxxx Xxxxxx,
Xxxxx Xxxx, Xxxxxxxxx 00000-0000, attention of the Secretary, with a copy to the
Treasurer.
SECTION 12. Parties. This Agreement and the Terms Agreement shall inure
to the benefit of and be binding upon you, GTFFC, Green Tree and any Underwriter
who becomes a party to this Agreement and the Terms Agreement, and their
respective successors. Nothing expressed or mentioned in this Agreement or the
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives any legal or
equitable right, remedy or claim under or with respect to this Agreement or the
Terms Agreement or any provision herein or therein contained. This Agreement and
the Terms Agreement and all conditions and provisions hereof or thereof are
intended to be for the sole and exclusive benefit of the parties and their
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives (to the extent of their rights as
specified herein and therein) and for the benefit of no other person, firm or
corporation. No purchaser of Offered Certificates from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
24
SECTION 13. Governing Law and Time. This Agreement and the Terms
Agreement shall be governed by the laws of the State of New York. Specified
times of day refer to New York City time.
SECTION 14. Counterparts. This Agreement and the Terms Agreement may be
executed in counterparts, each of which shall constitute an original of any
party whose signature appears on it, and all of which shall together constitute
a single instrument.
SECTION 15. Representations and Warranties of the Underwriters. Each of
the Underwriters represents and warrants as of the date hereof, as of the
Representation Date and as of the Closing Time as follows:
(a) Such Underwriter has not offered or sold and, prior to the expiry
of the period of six months from the Closing Date, such Underwriter will
not offer or sell any Class A or Class B Certificates to persons in the
United Kingdom, except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public in
the United Kingdom within the meaning of the Public Offers of Securities
Regulation 1998;
(b) Such Underwriter has complied and will comply with all applicable
provisions of the Financial Services Xxx 0000 with respect to anything done
by it in relation to the Class A or Class B Certificates in, from or
otherwise involving the United Kingdom; and
(c) Such Underwriter has only issued or passed on and will only issue
or pass on in the United Kingdom any document received by it in connection
with the issue of the Class A or Class B Certificates to a person who is of
a kind described in Article 11(3) of the Financial Services Xxx 0000
(Investment Advertisements) (Exemptions) Order 1995, or is a person to whom
such document may otherwise lawfully be issued or passed on.
25
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you, GTFFC
and Green Tree in accordance with its terms.
Very truly yours,
GREEN TREE FLOORPLAN FUNDING CORP.
By______________________________
Name:
Title:
GREEN TREE FINANCIAL CORPORATION
By______________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By___________________________
Name:
Title:
FIRST CHICAGO CAPITAL
By___________________________
Name:
Title:
26
$___________
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1996-2, Class A
and
$__________
(Floating Rate) Floorplan Receivable Trust Certificates,
Series 1996-2, Class B
EXHIBIT A
GREEN TREE FLOORPLAN RECEIVABLES MASTER TRUST
FORM OF TERMS AGREEMENT
-----------------------
Dated: December __, 1996
To: Green Tree Financial Corporation, ("GreenTree"),
Green Tree Floorplan Funding Corp. ("GTFFC")
Re: Underwriting Agreement dated December __, 1996
Terms of the Certificates:
-------------------------
Original
Principal Certificate
Amount Rate
--------- --------------------
Class A $___________ the lesser of (i) one-month LIBOR
determined as of the second LIBOR
business day prior to the relevant
Interest Accrual Period plus ___% per
annum or (ii) the Net Receivables Rate
Class B $__________ the lesser of (i) one-month LIBOR
determined as of the second LIBOR
business day prior to the relevant
Interest Accrual Period plus ___% per
annum or (ii) the Net Receivables Rate
A-1
Servicer:
--------
Green Tree Financial Corporation (in such capacity, the "Servicer")
Purchase Price:
--------------
The purchase price payable by the Underwriters for the Class A Certificates
is ______% of the principal amount of the Class A Certificates plus accrued
interest, if any, at the Class A Certificate Rate from December __, 1996.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") shall
purchase $___________ principal amount of the Class A Certificates and First
Chicago Capital Markets Inc. (" ") shall purchase $___________ principal amount
of the Class A Certificates.
The purchase price payable by Xxxxxxx Xxxxx for the Class B Certificates is
____% of the principal amount of the Class B Certificates plus accrued interest,
if any, at the Class B Certificate Rate from December __, 1996. Xxxxxxx Xxxxx
shall purchase all of the Class B Certificates and First Chicago Capital Markets
Inc. will not purchase any of the Class B Certificates.
Underwriting Commission:
-----------------------
Notwithstanding anything to the contrary in the Underwriting Agreement, no
additional underwriting commission shall be payable by GTFFC to the Underwriters
in connection with the purchase of the Offered Certificates.
Public Offering price (exclusive of any accrued interest) at which the
Underwriters will initially sell the Offered Certificates:
Class A 100%
Class B 100%
Closing Date and Location:
-------------------------
On or about December __, 1996, offices of Xxxxxx & Whitney LLP, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000.
A-2
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you, GTFFC
and Green Tree in accordance with its terms.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
----------------------------------
Name:
Title:
FIRST CHICAGO CAPITAL MARKETS INC.
By:
----------------------------------
Name:
Title:
ACCEPTED:
GREEN TREE FINANCIAL CORPORATION
By:
----------------------------------
Name:
Title:
GREEN TREE FLOORPLAN FUNDING CORP.
By:
----------------------------------
Name:
Title:
A-3
