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EXHIBIT 1.1
GREEN TREE LEASE FINANCE II, INC.
CONSECO FINANCE LEASE 2000-1, LLC
AND CONSECO FINANCIAL CORP.
Lease-Backed Notes, Class A-1, Class A-2
Class A-3, Class A-4 and Class B
UNDERWRITING AGREEMENT
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July __, 2000
First Union Securities, Inc.
Banc of America Securities LLC
c/o FIRST UNION SECURITIES, INC.
One First Union Center, TW-9
Charlotte, North Carolina 28288-0610
Dear Sirs:
Conseco Finance Lease 2000-1, LLC (the "Issuer") is a Delaware limited
liability company. Green Tree Lease Finance II, Inc. (the "SPC"), a wholly owned
subsidiary of Conseco Finance Vendor Services Corporation ("Vendor Services"),
is the sole member of the Issuer. Vendor Services is a wholly owned subsidiary
of Conseco Finance Corp. ("Conseco"). The Issuer's Lease-Backed Notes identified
in Schedule I hereto (the "Notes") will be issued pursuant to an Indenture,
dated as of July 1, 2000 (the "Indenture"), between the Issuer and Wells Fargo
Bank Minnesota, N.A. (the "Trustee"). The Notes will be secured by a pledge by
the Issuer of a pool of equipment lease contracts (the "Leases") and certain
other property, including certain rights to the proceeds of disposition of the
equipment underlying the Leases (the "Equipment") to be held in trust pursuant
to the Indenture. The Leases will be serviced by Vendor Services pursuant to a
Contribution and Servicing Agreement, dated as of July 1, 2000 (the
"Contribution and Servicing Agreement"), among the Issuer, Vendor Services and
the SPC. The Leases will have been contributed by Vendor Services, together with
Vendor Services' rights in the Equipment, to the SPC pursuant to a Transfer
Agreement, dated as of July 1, 2000 (the "Transfer Agreement"), between Vendor
Services and the SPC and the SPC will in turn contribute the Leases, together
with certain rights to the proceeds of disposition of the Equipment, to the
Issuer pursuant to the Contribution and Servicing Agreement. The forms of the
Indenture, Transfer Agreement and Contribution and Servicing Agreement
(collectively, the "Transaction Agreements") have been filed as exhibits to the
Registration Statement (hereinafter defined).
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The Notes are more fully described in the Registration Statement
(defined below) which the Issuer and the SPC as the registrants thereunder
(together, the "Registrants") have furnished to you. The Notes will be sold in a
public offering through the underwriters listed in Schedule I hereto, one or
more of which may act as representative of such underwriters (any underwriter
through which Notes are sold shall be referred to herein as an "Underwriter" or,
collectively, all such Underwriters may be referred to as "you" or the
"Underwriters") and First Union Securities, Inc., will act as representative of
the Underwriters and may be referred to herein as the "Representative".
Capitalized terms used but not defined herein shall have the meanings given to
them in the Registration Statement.
The offering of the Notes will be governed by this Underwriting
Agreement which forms one agreement between the Registrants and Conseco, on one
hand, and the Underwriters, on the other, and references herein to "this
Agreement" shall, unless the context provides otherwise, refer to this
Underwriting Agreement.
SECTION 1. Representations and Warranties. The Registrants and Conseco
represent and warrant to the Underwriters as of the date hereof as follows:
(a) The Registrants have prepared and filed with the
Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Securities Act"), a registration statement on Form S-1 (registration
numbers 333-85811 and 333-85811-01), including a form of prospectus,
relating to the Notes. The registration statement, and any
post-effective amendment thereto, each in the form heretofore delivered
to you and, excluding exhibits thereto, have been declared effective by
the Commission. As used in this Agreement, "Effective Time" means the
date and the time as of which such registration statement, or the most
recent post-effective amendment thereto, if any, was declared effective
by the Commission and "Effective Date" means the date of the Effective
Time. The Registrants have furnished to you, for use by the
Underwriters, copies of one or more preliminary prospectuses (each, a
"Preliminary Prospectus"), relating to the Notes. Except where the
context otherwise requires, the registration statement, as amended at
the Effective Time, including all documents filed as a part thereof,
and including any information contained in a prospectus subsequently
filed with the Commission pursuant to Rule 424(b) under the Securities
Act and deemed to be part of the registration statement as of the
Effective Time pursuant to Rule 430A under the Securities Act, is
herein called the "Registration Statement", and the prospectus, in the
form filed by the Registrants with the Commission pursuant to Rule
424(b) under the Securities Act or, if no such filing is required, the
form of final prospectus included in the Registration Statement at the
time it became effective, is hereinafter called the "Prospectus".
(b) The Registration Statement relating to the Notes, has been
filed with the Commission and such Registration Statement has become
effective. No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Registrants or
Conseco, threatened by the Commission. No order preventing or
suspending the use of any Preliminary Prospectus has been issued by the
Commission, and each Preliminary
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Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Securities Act, and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made (and taking
into account Rule 430A of the Securities Act, which permits certain
information to be omitted from a preliminary prospectus), not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon or
conformity with the Underwriters' Information (as defined in Section
10(d) herein).
(c) The Registration Statement conforms, and any amendments or
supplements thereto and the Prospectus will conform, in all material
respects to the requirements of the Securities Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and do
not and will not, as of the Effective Date and as of the Closing Date
(as defined herein), contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however that this representation and warranty shall not apply to (i)
that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) of the Trustee
under the Trust Indenture Act or (ii) any Underwriters' Information (as
defined in Section 10(d) herein) contained therein. The Indenture
conforms in all respects to the requirements of the Trust Indenture Act
and the rules and regulations of the Commission thereunder.
(d) The Issuer has been duly organized and is validly existing
as a limited liability company in good standing under the laws of the
State of Delaware. The SPC has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Minnesota. Each of Vendor Services and Conseco has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware. Each Registrant, Vendor
Services and Conseco possess the 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 Indenture, the Contribution and Servicing Agreement and
the Transfer Agreement, as applicable; and each Registrant and Conseco
are duly qualified as a foreign entity to transact business and are in
good standing in each jurisdiction in which the ownership or lease of
its properties or the conduct of its business requires such
qualification.
(e) None of the Registrants, Vendor Services or Conseco are in
violation of its limited liability company agreement or articles of
incorporation or by-laws, as the case may be, 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 such Registrant, Vendor Services or Conseco, as
applicable, or which might materially and adversely affect the
properties or assets thereof.
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(f) The execution, delivery and performance by each
Registrant, Vendor Services and Conseco of this Agreement and the
Transaction Agreements, as applicable, are within its corporate or
limited liability company power, as applicable, and have been duly
authorized by all necessary corporate or limited liability company
action on the part of such Registrant, Vendor Services or Conseco.
(g) The execution, delivery and performance of this Agreement,
the Transaction Agreements to which the Registrants, Vendor Services or
Conseco, as the case may be, is a party, the issuance and sale of the
Notes and the consummation of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which any of the Registrants, Vendor
Services or Conseco is a party or by which any of the Registrants,
Vendor Services or Conseco is bound or to which any of the property or
assets of any of the Registrants, Vendor Services or Conseco is
subject, nor will such actions result in any violation of the
provisions of the charter, by-laws or limited liability company
agreement, as applicable, of any of the Registrants, Vendor Services or
Conseco or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over any of the
Registrants, Vendor Services or Conseco or any of their properties or
assets; and except for the registration of the Notes under the
Securities Act, the qualification of the Indenture under the Trust
Indenture Act, such consents, approvals, authorizations, registrations
or qualifications as may be required under the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") and applicable state
securities laws in connection with the purchase and distribution of the
Notes by the Underwriters and the filing of any financing statements
required to perfect the Issuer's interest in the Trust Assets, no
consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement or the
Transaction Agreements, the issuance and sale of the Notes and the
consummation of the transactions contemplated hereby and thereby.
(h) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change, or any development involving a prospective change, in
or affecting the Registrants, Vendor Services or Conseco (other than as
may be contemplated in the Registration Statement) which would be
expected to have a material adverse effect on either (i) the ability of
such person to consummate the transactions contemplated by, or to
perform its respective obligations under, this Agreement or the
Transaction Agreements, as applicable, or (ii) the Leases or the Trust
Assets.
(i) Each of the Indenture, the Transfer Agreement and the
Contribution and Servicing Agreement when executed and delivered as
contemplated hereby and thereby will have been duly authorized,
executed and delivered by each of the Registrants or Vendor Services,
as the case may be, purporting to execute the same, and will constitute
when so executed and delivered, a legal, valid and binding instrument
enforceable against each such Registrant or Vendor Services, as
applicable, 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
and (ii) as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law).
(j) As of the Closing Date, the Notes will have been duly and
validly authorized by the Issuer, 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 Issuer to the extent provided in the
Indenture, 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).
(k) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act and which have not been so
described or filed.
(l) Any taxes, fees and other governmental charges on the part
of the Registrants or Vendor Services that are assessed and due in
connection with the execution, delivery and issuance of this Agreement
or the Transaction Agreements shall have been paid or will be paid at
or prior to the Closing Date to the extent then due.
(m) There are no legal or governmental proceedings pending to
which any of the Registrants, Vendor Services or Conseco is a party or
of which any property or assets of any of the Registrants, Vendor
Services or Conseco is the subject which, individually or in the
aggregate, would (i) be reasonably likely to, if determined adversely
to any of the Registrants, Vendor Services or Conseco, have a material
adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of any of the Registrants, Vendor
Services or Conseco, as the case may be, or taken as a whole; and to
the best of each Registrant's or Conseco's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others, that (i) assert the invalidity of this
Agreement or the Transaction Agreements, (ii) seek to prevent the
issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or the Transaction Agreements, (iii) be
reasonably likely to, if determined adversely to any of the
Registrants, Vendor Services or Conseco, materially and adversely
affect the performance by the Registrants, Vendor Services or Conseco,
as the case may be, of their respective obligations under, or the
validity or enforceability of, this Agreement or the Transaction
Agreements, as applicable, or (iv) seek to affect adversely the federal
income tax attributes of the Notes described in the Prospectus.
(n) This Agreement has been duly authorized, executed and
delivered by each of the Registrants and Conseco.
(o) Each of the Registrants, Vendor Services and Conseco
possess 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 has received no notice of proceedings
relating to
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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 its business, operations, financial condition or
earnings.
(p) As of the Closing Date, the Leases and the other Trust
Assets will have been duly and validly granted to the Trustee in
accordance with the Indenture; and when such assignment is effected, a
duly and validly perfected transfer to the Trustee of all such Trust
Assets subject to no prior lien, mortgage, security interest, pledge,
charge or other encumbrance created by Vendor Services or any of the
Registrants, will have occurred.
(q) The representations and warranties of the SPC in Section
3.2 of the Transfer Agreement and of Vendor Services in Section 3.1 of
the Transfer Agreement will be true and correct as of the Closing Date.
(r) Neither the Issuer nor the Trust Assets created by the
Indenture is required to be registered under the Investment Company Act
of 1940, as amended (the "1940 Act").
(s) The Notes, the Indenture, the Contribution and Servicing
Agreement, and the Transfer Agreement conform in all material respects
to the descriptions thereof contained in the Prospectus.
SECTION 2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the covenants, representations and warranties herein set forth,
the Issuer agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Issuer, the principal amount of
Notes set forth opposite such Underwriter's name in Schedule I hereto. The
purchase price for the Notes shall be as set forth in Schedule I hereto.
SECTION 3. Delivery and Payment. Payment for the Notes shall be made to
the Issuer or to its order by wire transfer of same day funds at the office of
Dorsey & Whitney LLP, 220 South Sixth Street, Minneapolis, Minnesota 55402, at
10:00 a.m., Minneapolis time, on the Closing Date, or at such other time on the
same or such other date as the Representative and the Issuer may agree upon. The
time and date of such payment for the Notes as specified in Schedule I hereto
are referred to herein as the "Closing Date." As used herein, the term "Business
Day" means any day other than a day on which banks are permitted or required to
be closed in New York City or Minneapolis, Minnesota.
Payment for the Notes shall be made against delivery to the
Representative for the respective accounts of the several Underwriters of the
Notes registered in the name of Cede & Co. as nominee of The Depository Trust
Company and in such denominations as the Representative shall request in writing
not later than two full Business Days prior to the Closing Date. The Issuer
shall make the Notes available for inspection by the Representative in
Minneapolis, Minnesota not later than one full Business Day prior to the Closing
Date.
SECTION 4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Notes for sale to the public, which may
include selected dealers, as set forth in the Prospectus.
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SECTION 5. Covenants of the Registrants and Conseco. Each of the
Registrants and Conseco , jointly and severally, covenants with each of the
Underwriters, as follows:
(a) The Registrants will prepare the Prospectus in a form
approved by the Representative and file such Prospectus pursuant to
Rule 424(b) under the Securities Act not later than the Commission's
close of business on the second business day following the execution
and delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Securities Act.
(b) During the period that a prospectus relating to the Notes
is required to be delivered under the Securities Act in connection with
sales of such Notes (such period being hereinafter sometimes referred
to as the "prospectus delivery period"), before filing any amendment or
supplement to the Registration Statement or the Prospectus, the
Registrants will furnish to the Representative a copy of the proposed
amendment or supplement for review and will not file any such proposed
amendment or supplement to which the Representative reasonably objects.
(c) During the prospectus delivery period, the Registrants
will advise the Representative promptly after it receives notice
thereof, (i) when any amendment to the Registration Statement shall
have become effective, (ii) of any request by the Commission for any
amendment or supplement to the Registration Statement or the Prospectus
or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any
proceeding for that purpose, (iv) of the issuance by the Commission of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or the initiation or threatening of any
proceedings for that purpose and (v) of any notification with respect
to any suspension of the qualification of the Notes for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and will use its best efforts to prevent the issuance
of any such stop order or suspension and, if any is issued, will
promptly use its best efforts to obtain the withdrawal thereof.
(d) If, at any time during the prospectus delivery period, any
event occurs as a result of which the Prospectus as then supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it shall be necessary to amend or supplement the Prospectus to
comply with the Securities Act, the Registrants promptly will prepare
and file with the Commission, an amendment or a supplement which will
correct such statement or omission or effect such compliance.
(e) The Registrants will endeavor to qualify the Notes for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request and will
continue such qualification in effect so long as reasonably required
for distribution of the Notes; provided, however, that neither
Registrant shall be obligated to qualify to do business in any
jurisdiction in which it is not currently so qualified; and
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provided, further, that neither Registrant shall be required to file a
general consent to service of process in any jurisdiction.
(f) The Registrants will furnish to the Representative,
without charge, two copies of the Registration Statement (including
exhibits thereto), one of which will be signed, and to each Underwriter
conformed copies of the Registration Statement (without exhibits
thereto) and, during the prospectus delivery period, as many copies of
any Preliminary Prospectus and the Prospectus and any supplement
thereto as the Underwriters may reasonably request.
(g) For a period from the date of this Agreement until the
retirement of the Notes, or until such time as the Underwriters shall
cease to maintain a secondary market in the Notes, whichever first
occurs, the Registrants will deliver to the Representative (i) the
annual statements of compliance under the Indenture, (ii) the annual
independent certified public accountants' reports furnished to the
Trustee, (iii) all documents required to be distributed to the
Noteholders of the Trust and (iv) all documents filed with the
Commission pursuant to the Exchange Act or any order of the Commission
thereunder, in each case as provided to the Trustee or filed with the
Commission, as soon as such statements and reports are furnished to the
Trustee or filed or as soon thereafter as practicable.
(h) To the extent, if any, that the rating provided with
respect to the Notes by the rating agency or agencies that initially
rate the Notes is conditional upon the furnishing of documents or the
taking of any other actions by the Registrants, the Registrants shall
furnish such documents and take any such other actions.
(i) The Issuer will use the net proceeds received by it from
the issuance of the Notes in the manner specified in the Prospectus
under the caption "Use of Proceeds".
(j) The Registrants will file the Monthly Report on Form 8-K
for a period of twelve months following the Closing Date.
SECTION 6. Conditions to the Obligations of the Underwriters. The
respective obligations of the several Underwriters to purchase Notes pursuant to
this Agreement are subject to the accuracy of the representations and warranties
on the part of the Registrants and Conseco herein contained, to the accuracy of
the statements of the officers of each of the Registrants, Vendor Services and
Conseco made pursuant hereto, to the performance by each of the Registrants and
Conseco of all of its obligations hereunder and to the following further
conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424 in the manner and within the applicable time
period prescribed for such filing by the rules and regulations of the
Commission under the Securities Act and in accordance with Section 5(a)
of this Agreement; and, prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceedings for such purpose
shall have been initiated or threatened by the Commission; and all
requests for additional information from the
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Commission with respect to the Registration Statement shall have been
complied with to the reasonable satisfaction of the Representative.
(b) (i) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the
Transaction Agreements, the Notes, the Registration Statement, the
Preliminary Prospectus and the Prospectus, and all other legal matters
relating to such agreements and the transactions contemplated hereby
and thereby shall be reasonably satisfactory in all material respects
to counsel for the Underwriters, and the Registrants shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters and (ii)
prior to or contemporaneously with the purchase of Notes hereunder, all
transactions contemplated to be consummated under such Transaction
Documents on the Closing Date shall have been so consummated to the
reasonable satisfaction of the Underwriters.
(c) At the Closing Date you shall have received:
(1) The favorable opinion, dated as of the Closing
Date, of Dorsey & Whitney L.L.P., counsel for the Registrants,
in form and substance satisfactory to you, to the effect that:
(i) The Issuer has been duly organized and
is validly existing as a limited liability company in
good standing under the laws of the State of
Delaware; the SPC has been duly organized and is
validly existing as a corporation in good standing
under the laws of the State of Minnesota, and that
each of Conseco and Vendor Services has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of the State of
Delaware.
(ii) The execution and delivery by the
Registrants, Vendor Services and Conseco, as
applicable, of this Agreement and the Transaction
Agreements and the signing of the Registration
Statement by the Registrants are within the corporate
or limited liability company power of the Registrants
and have been duly authorized by all necessary
corporate or limited liability company action on the
part of the Registrants.
(iii) This Agreement has been duly
authorized, executed and delivered by the Registrants
and Conseco, and each is a valid and binding
obligation of the Registrants and Conseco enforceable
against the Registrants and Conseco in accordance
with its terms, except that (A) such enforcement may
be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' or
secured parties' rights generally, (B) such
enforcement may be limited by general principles of
equity, including (without limitation) concepts of
materiality, reasonableness, good faith and fair
dealing, and other similar doctrines affecting the
enforceability of agreements generally (regardless of
whether enforcement is sought in a
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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 Transaction Agreements and the
Registration Statement have been duly authorized,
executed and delivered by each of Vendor Services, if
applicable, and the Registrants purporting to execute
the same, and are the valid and binding obligations
of Vendor Services and the Registrants, as
applicable, enforceable against Vendor Services and
the Registrants, as applicable, 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 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 Leases and
its rights in the Equipment by Vendor Services to the
SPC or of the Leases and its rights to disposition
proceeds of the Equipment by the SPC to the Issuer,
the pledge of the Trust Assets by the Issuer, the
issue and sale of the Notes by the Issuer or 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, any
contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which Vendor Services or
any of the Registrants may be a party or by which any
may be bound or to which the property or assets of
Vendor Services or any of the Registrants are subject
(which contracts, indentures, mortgages, loan
agreements, notes, leases and other such instruments
have been identified by Vendor Services and the
Registrants to such counsel), nor will such action
result in any violation of the provisions of the
certificate of incorporation or by-laws or limited
liability company agreement, as the case may be, of
Vendor Services or any of the Registrants or, to the
best of such counsel's knowledge, any order or
regulation known to us to be applicable to Vendor
Services or any of the Registrants of any state or
federal court, regulatory body, administrative
agency, governmental body or arbitrator having
jurisdiction over Vendor Services or any of the
Registrants.
(vi) The Notes have been duly authorized and
executed by the Issuer and when authenticated as
specified in the Indenture and delivered and paid for
pursuant to this Agreement, will be duly issued
obligations of the Issuer, entitled to the benefits
of the Indenture.
(vii) The Indenture creates a valid security
interest in favor of the Trustee in the Leases and
other property included in the Trust Assets on the
date hereof, which security interest of the Trustee
in the Leases and the Trust Assets will be perfected
and will constitute a first perfected security
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interest upon the filing of Uniform Commercial Code
("UCC") financing statements in the offices of the
Secretary of State of Minnesota and Delaware;
provided, however, that such counsel may take
customary exceptions acceptable to you. Such counsel
need express no opinion (a) as to the continuation of
a security interest in the Leases if the Trustee does
not file continuation statements as required by the
Indenture or (b) as to the priority of any security
interest in the Leases 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.
(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
Vendor Services or the Registrants for the
consummation by Vendor Services or any of the
Registrants, as applicable, of the transactions
contemplated by the Transaction Agreements, except
such as may be required under the Securities Act or
the regulations thereunder, or state securities or
Blue Sky laws.
(ix) The Registration Statement is effective
under the Securities 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 Securities Act or
proceedings therefor initiated or threatened by the
Commission.
(x) The Indenture has been duly qualified
under the Trust Indenture Act.
(xi) To the best of such counsel's
knowledge, there are no contracts or documents of the
Registrants which are required to be filed as
exhibits to the Registration Statement pursuant to
the Securities Act or the regulations thereunder
which have not been so filed or incorporated by
reference.
(xii) The statements in the Prospectus under
the heading "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 Issuer is not and will not as a
result of the offer and sale of the Notes as
contemplated in the Prospectus and in this Agreement
become, an "investment company" or "under the control
of an investment company" as such terms are defined
in the 1940 Act.
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(xiv) The statements in the Prospectus under
the captions "Description of the Notes," "The Leases
- Representations and Warranties Made by Vendor
Services" and "Description of the Contribution and
Servicing Agreement" insofar as such statements
purport to summarize certain terms of the Notes, and
the Transaction Agreements constitute a fair and
accurate summary of such documents.
(xv) 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 Securities Act
and the regulations thereunder.
(xvi) The execution, delivery and
performance by Vendor Services or the Registrants, as
applicable, of the Transaction 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.
(xvii) To such counsel's knowledge, there
are no pending or overtly threatened lawsuits or
claims against the Registrants or Conseco, or
relating to the transaction, Vendor Services or
contemplated by the Underwriting Agreement and the
Transaction Agreements which, if adversely
determined, would have a material adverse effect on
the transactions contemplated by the Underwriting
Agreement and the Transaction Agreements.
Such counsel shall deliver to you such additional opinions addressing
the transfer by Vendor Services or the Registrants of any right, title and
interest in and to the Leases and other property included in the Trust Assets on
the Closing Date as may be required by each Rating Agency rating the Notes.
Such counsel shall state that it has participated in the conferences
with officers and other representatives of the Registrants, your counsel,
representatives of the independent accountants for the Registrants and you at
which the contents of the Registration Statement and the Prospectus were
discussed and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xii) and (xiv) above) and has made no independent check or
verification thereof for the purpose of rendering this opinion, on the basis of
the foregoing, nothing has come to their attention that leads such counsel to
believe that the Registration Statement, when it became effective, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus on the date of this Agreement contained, or on the
Closing Date 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,
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<PAGE>
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 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, dated as of the Closing
Date, of [Senior Vice President and General Counsel] to
Conseco, in form and substance satisfactory to you and your
counsel, to the effect that:
(i) There are no pending or 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 Vendor Services or any of
the Registrants or Conseco.
(ii) Each of Vendor Services or the
Registrants and Conseco is qualified to do business,
and is in good standing, as a foreign corporation or
other appropriate entity in each U.S. jurisdiction in
which the character of the business owned or leased
by it makes such qualification necessary, except
where the failure to be so qualified would not have a
material adverse effect on the financial condition of
Vendor Services, such Registrant or Conseco.
(3) The favorable opinion of counsel to the Trustee,
dated as of the Closing Date, addressed to you and in form and
scope satisfactory to your counsel, to the effect that:
(i) The Trustee has duly authorized,
executed and delivered the Indenture and the
Indenture is enforceable against the Trustee in
accordance with its terms, except as such
enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in
general and by general principles of equity
regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(ii) The Trustee has full power and
authority to execute and deliver the Indenture 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
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<PAGE>
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 Indenture.
(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 Indenture.
(v) The Notes have been duly authenticated
by the Trustee.
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 Date, of Brown & Wood LLP, counsel for the
Underwriters, with respect to the issue and sale of the Notes,
the Registration Statement, this Agreement, the Prospectus,
and other related matters as the Underwriters may require and
the Registrants shall have furnished to such counsel such
documents as they reasonably request for enabling them to pass
upon such matters.
(d) Each of the Registrants shall have furnished to the
Representative a certificate, dated the Closing Date, of any of its
Chairman of the Board, President or Vice President and its chief
financial officer stating that (i) such officers have carefully
examined the Registration Statement and the Prospectus, (ii) the
Prospectus does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (provided that
each of the Registrants may exclude Underwriters' Information (as
defined in Section 10(d) herein) from such representation), (iii) the
representations and warranties of any of the Registrants contained in
this Agreement and the Transaction Agreements are true and correct in
all material respects on and as of the Closing Date, (iv) each of the
Registrants has complied in all material respects with all agreements
and satisfied in all material respects all conditions on its part to be
performed or satisfied hereunder and under such agreements at or prior
to the Closing Date, (v) no stop order suspending the effectiveness of
the Registration Statement has been issued and is outstanding and no
proceedings for that purpose have been instituted and not terminated
or, to the best of his or her knowledge, are contemplated by the
Commission, and (vi) since the date of its most recent financial
statements, there has been no material adverse change in the financial
position or results of operations of any of the Registrants or Conseco,
as applicable, or any change, or any development including a
prospective change, in or affecting the condition (financial or
otherwise), results of operations or business of any of the
Registrants, Vendor Services or Conseco except as set forth in or
contemplated by the Registration Statement and the Prospectus.
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<PAGE>
(e) Subsequent to the date of this Agreement, there shall not
have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or
properties of any of the Registrants, Vendor Services or Conseco which
materially impairs the investment quality of the Notes; (ii) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended or
limited, or minimum prices shall have been established on either of
such exchanges or such market by the Commission, by such exchange or by
any other regulatory body or governmental authority having
jurisdiction, or trading in securities of any of the Registrants or
Conseco on any exchange or in the over-the-counter market shall have
been suspended or (iii) a general moratorium on commercial banking
activities shall have been declared by Federal or New York State
authorities or (iv) an outbreak or escalation of hostilities or a
declaration by the United States of a national emergency or war or such
a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the
judgment of the Representative, impracticable or inadvisable to proceed
with the public offering or the delivery of the Notes on the terms and
in the manner contemplated in the Prospectus.
(f) The Underwriters shall have received from
PriceWaterhouseCoopers LLP or other independent certified public
accountants acceptable to the Underwriter, a letter, dated as of the
date hereof and as of the Closing Date, delivered at such times, in the
form heretofore agreed to.
(g) The Underwriters shall receive evidence satisfactory to
them that, on or before the Closing Date, UCC-1 financing statements
have been or are being filed in each office in each jurisdiction in
which such financing statements are required to perfect the first
priority security interests created by the Transaction Agreements
reflecting the interest of the Trustee in the Trust Assets and the
proceeds thereof.
(h) At the Closing Date, the Class A-1, Class A-2, Class A-3,
Class A-4, Class B, Class C and Class D Notes shall have the ratings
specified in the Prospectus.
(i) The Class C and Class D Notes shall have been duly issued
and shall have been purchased by First Union Securities, Inc. pursuant
to the Note Purchase Agreement, dated the date hereof, between First
Union Securities, Inc. on the one hand, and the Issuer and Conseco on
the other.
All opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
SECTION 7. Termination of Agreement. The obligations of the
Underwriters hereunder may be terminated by the Representative, in its absolute
discretion, by notice given to and received by the Registrants prior to delivery
of and payment for the Notes if, prior to that time, any of the events described
in Section 6(e) or Section 6(j) shall have occurred.
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<PAGE>
SECTION 8. Defaulting Underwriters.
(a) If, on the Closing Date, any Underwriter or Underwriters
default in the performance of its or their obligations under this
Agreement, the Representative may make arrangements for the purchase of
such Notes by other persons satisfactory to the Registrants and the
Representative, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, then each remaining
non-defaulting Underwriter shall be severally obligated to purchase the
Notes which the defaulting Underwriter or Underwriters agreed but
failed to purchase on the Closing Date in the respective proportions
which the principal amount of Notes set forth opposite the name of each
remaining non-defaulting Underwriter in Schedule I hereto bears to the
aggregate principal amount of Notes set forth opposite the names of all
the remaining non-defaulting Underwriters in Schedule I hereto;
provided, however, that the remaining non-defaulting Underwriters shall
not be obligated to purchase any of the Notes on the Closing Date if
the aggregate principal amount of Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such date
exceeds one-eleventh of the aggregate principal amount of the Notes to
be purchased on the Closing Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase in total more than 10%
of the principal amount of the Notes which it agreed to purchase on the
Closing Date pursuant to the terms of Section 2. If the foregoing
maximums are exceeded and the remaining Underwriters or other
underwriters satisfactory to the Representative and the Registrants do
not elect to purchase the Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter or the Registrants, except that the provisions of Sections
9 and 13 shall not terminate and shall remain in effect. As used in
this Agreement, the term "Underwriter" includes, for all purposes of
this Agreement unless the context otherwise requires, any party not
listed in Schedule I hereto who, pursuant to this Section 8, purchases
Notes which a defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have for damages caused by its
default. If other Underwriters are obligated or agree to purchase the
Notes of a defaulting Underwriter, either the Representative or the
Registrants may postpone the Closing Date for up to seven full business
days in order to effect any changes that in the opinion of counsel for
the Registrants or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or
arrangement, and the Registrants agrees to file promptly any amendment
or supplement to the Registration Statement or the Prospectus that
effects any such changes.
SECTION 9. Reimbursement of Underwriters' Expenses. If (i) the Issuer
shall fail to tender the Notes for delivery to the Underwriters for any reason
permitted under this Agreement or (ii) the Underwriters shall decline to
purchase the Notes for any reason permitted under this Agreement, Conseco shall
reimburse the Underwriters for the fees and expenses of their counsel and for
such other out-of-pocket expenses as shall have been reasonably incurred by them
in connection with this Agreement and the proposed purchase of the Notes, and
upon demand Conseco shall pay the full amount thereof to the Representative. If
this Agreement is terminated
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pursuant to Section 8 by reason of the default of one or more Underwriters,
Conseco shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
SECTION 10. Indemnification.
(a) The Registrants and Conseco shall, jointly and severally,
indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of the Securities Act
(collectively referred to for the purposes of this Section 10 as the
Underwriter) against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which that Underwriter
may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of or is based
upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in
any amendment thereof or supplement thereto, or in any Preliminary
Prospectus or the Prospectus or in any amendment thereof or supplement
thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse each Underwriter
for any legal or other expenses reasonably incurred by that Underwriter
directly in connection with investigating or preparing to defend or
defending against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that none of the Registrants or
Conseco shall be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of or is based upon
an untrue statement or alleged untrue statement in or omission or
alleged omission from any Registration Statement as originally filed or
in any amendment thereof or supplement thereto, or in any Preliminary
Prospectus or the Prospectus or in any amendment thereof or supplement
thereto in reliance upon and in conformity with the Underwriters'
Information (as defined in Section 10(d) herein), and provided,
further, that none of the Registrants or Conseco shall be liable to any
Underwriter or any person controlling such Underwriter under the
indemnity agreement in this subsection (a) with respect to any of such
documents to the extent that any such loss, claim, damage or liability
of such Underwriter or such controlling person results from the fact
that such Underwriter sold Notes to a person to whom there was not sent
or given, at or prior to the written confirmation of such sale, a copy
of the Prospectus or of the Prospectus as then amended or supplemented,
whichever is most recent, if the Registrants have previously furnished
copies thereof to you.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless each of the Registrants and Conseco, and
each of their directors, each officer of the Registrants and Conseco
who signed the Registration Statement and each person, if any, who
controls the Registrants and Conseco within the meaning of the
Securities Act, against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Registrants and
Conseco may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of
or is based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof or supplement thereto, or
in any Preliminary Prospectus or the Prospectus or in any amendment
thereof or supplement thereto or (ii) the omission or alleged omission
to state
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<PAGE>
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to
the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with the Underwriters' Information (as defined in Section
10(d) herein), and shall reimburse the Registrants and Conseco for any
legal or other expenses reasonably incurred by the Registrants and
Conseco in connection with investigating or preparing to defend or
defending against or appearing as third party witness in connection
with any such loss, claim, damage or liability (or any action in
respect thereof) as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 10 except to the extent it has been materially prejudiced
by such failure; and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 10. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying
party). After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action,
the indemnifying party shall not be liable to the indemnified party
under this Section 10 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided,
however, that the Representative shall have the right to employ counsel
to represent jointly the Representative and the other Underwriters (and
their respective controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought
under this Section 10) if, in the reasonable judgment of the
Representative, it is advisable for the Representative and the other
Underwriters and controlling persons to be jointly represented by
separate counsel, and in that event the fees and expenses of such
separate counsel shall be paid by the Registrants and Conseco. Each
indemnified party, as a condition of the indemnity agreements contained
in Sections 10(a) and 10(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action
or claim. No indemnifying party shall be liable for any settlement of
any such action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason
of such settlement or judgment.
(d) The Underwriters confirm that the information (such
information, the "Underwriters' Information") set forth (i) in the last
paragraph on the cover page, and
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<PAGE>
(ii) in the second sentence of the second paragraph under the caption
"Underwriting" in the Prospectus is correct and constitutes the only
information furnished in writing to the Registrants by or on behalf of
the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
(e) The obligations of the Registrants and Conseco in this
Section 10 shall be in addition to any liability which the Registrants
or Conseco may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within
the meaning of the Securities Act; and the obligations of the
Underwriters under this Section 10 shall be in addition to any
liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each director and
officer of the Registrants and Conseco (including any person who, with
his or her consent, is named in the Registration Statement as about to
become a director of the Registrants or Conseco) and to each person, if
any, who controls the Registrants or Conseco within the meaning of the
Securities Act.
SECTION 11. Contribution. If the indemnification provided for in
Section 10 is unavailable or insufficient to hold harmless an indemnified party
under Section 10, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or any
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Registrants and Conseco on the one
hand and the Underwriters on the other from the offering of the Notes 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 relative benefits
referred to in clause (i) above but also the relative fault of the Registrants
and Conseco on the one hand and the Underwriters on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or any action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Registrants and
Conseco on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Notes purchased hereunder (before deducting expenses)
received by the Issuer bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Notes purchased hereunder, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Registrants and Conseco on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Registrants and Conseco and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 11 were to be determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim damage or
liability referred to above in Section 10 shall be deemed to include, for
purposes of this Section 11, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
claim or any action. Notwithstanding the provisions of this Section 11, no
Underwriter shall be required to contribute
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any amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to the public less
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. No person guilty of fraudulent misrepresentation (within the
meaning of Section 10(d) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to indemnify and contribute as
provided in Section 10 and this Section 11 are several in proportion to their
respective underwriting obligations and not joint.
SECTION 12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon you, the Registrants and
Conseco and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Sections 10
and 11 and their heirs and legal representatives any legal or equitable right,
remedy or claim under or with respect to this Agreement or any provision herein
or therein contained.
SECTION 13. Expenses. Conseco will pay all expenses incident to the
performance of the Registrants' obligations under this Agreement, including
without limitation those related to (i) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Notes and any taxes payable in
that connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (iii) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus and the
Prospectus, all as provided in this Agreement; (iv) the costs of reproducing and
distributing this Agreement and any other underwriting and selling group
documents by mail, telex or other means of communications; (v) the fees and
expenses of qualifying the Notes under the securities laws of the several
jurisdictions as provided in Section 5(e) and of preparing, printing and
distributing Blue Sky Memoranda and Legal Investment Surveys (including the
related reasonable and documented fees and expenses of counsel to the
Underwriters); (vi) any fees charged by rating agencies for rating the Notes;
(vii) all fees and expenses of the Trustee and its counsel; (viii) any transfer
taxes payable in connection with its sale of the Notes pursuant to this
Agreement; and (ix) all other costs and expenses incident to the performance of
the obligations of the Registrants under this Agreement; provided that, except
as otherwise provided in this Section 13, the Underwriters shall pay their own
costs and expenses, including, the costs and expenses of their counsel and the
expenses of advertising any offering of the Notes made by the Underwriters.
SECTION 14. Survival. The respective indemnities, rights of
contribution, agreements, representations, warranties and other statements of
the Registrants, Conseco and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or any of the
Registrants or Conseco, or any officer, director or controlling person of the
Registrants or Conseco, and shall survive delivery of and payment for the Notes.
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SECTION 15. 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 telecommunications and, (i) if sent to the
Underwriters will be mailed, delivered or telecopied and confirmed to them at
First Union Securities, Inc., Asset Securitization Division, 301 South College
Street, TW-9, Charlotte, North Carolina 28288-0610, Telecopy Number: (704)
374-3254; provided, however, that any notice to an Underwriter pursuant to
Section 9(c) shall be delivered or sent by mail, delivery or telecopy to such
Underwriter at its address set forth in its acceptance telex to the
Representative, which address will be supplied to any other party hereto by the
Representative upon request; and (ii) if sent to the Issuer, the SPC, Vendor
Services or Conseco will be mailed, delivered or telecopied and confirmed to
them at 1100 Landmark Towers, 345 St. Peter Street, Saint Paul, Minnesota
55102-1639, attention of the Secretary, with a copy to the Treasurer Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof. The Issuer, the SPC, the Servicer and Conseco shall be entitled
to act and rely upon any request, consent, notice or agreement given or made on
behalf of the Underwriters by the Representative.
SECTION 16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 17. Counterparts. This 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 one and the
same instrument.
SECTION 18. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
SECTION 19. Effectiveness. This Agreement shall become effective upon
execution and delivery.
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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 among
you, the Registrants and Conseco in accordance with its terms.
Very truly yours,
GREEN TREE LEASE FINANCE II, INC.
By:
---------------------------------------
Name:
Title:
CONSECO FINANCE LEASE 2000-1, LLC
By: GREEN TREE LEASE FINANCE II, INC.
By:
---------------------------------------
Name:
Title:
CONSECO FINANCE CORP.
By:
---------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
FIRST UNION SECURITIES, INC.,
as Representative of the Underwriters
By:
-----------------------------------
Name:
Title:
22
<PAGE>
SCHEDULE I
Date of Underwriting Agreement: July __, 2000
Underwriters: First Union Securities, Inc.
Banc of America Securities LLC
Title, Purchase Price and Description of Notes Purchased by each Underwriter:
Class A-1 Notes First Union Banc of America
---------------
Title:
Price to public:
Purchase price:
Underwriting
discount:
Maturity:
Class A-2 Notes
---------------
Title:
Price to public:
Purchase price:
Underwriting
discount:
Maturity:
Class A-3 Notes
---------------
Title:
Price to public:
Purchase price:
Underwriting
discount:
Maturity:
Class A-4 Notes
---------------
Title:
Price to public:
Purchase price:
Underwriting
discount:
Maturity:
Schedule I-1
<PAGE>
Class B Notes
-------------
Title:
Price to public:
Purchase price:
Underwriting
discount:
Maturity:
Closing Date and Location:
--------------------------
Date: [ ]
Location: Dorsey & Whitney LLP, Minneapolis, Minnesota
Privately issued Notes:
__% $____________________Class C Notes, Maturity:
__% $____________________Class D Notes, Maturity:
Except as expressly stated therein, all references to the "Notes" in the
Underwriting Agreement shall refer solely to the Class A-1, Class A-2, Class
A-3, Class A-4 and Class B Notes; provided, that the applicable references to
the "Notes" in Sections 2(g), (i) and (m) of the Underwriting Agreement shall
refer as well to the Class C and Class D Notes.
Schedule I-2
