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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 27, 1994
GREEN TREE FINANCIAL CORPORATION
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(Exact name of registrant as specified in its charter)
Minnesota 0-11652 41-1263905
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(State or other jurisdiction (Commission (IRS employer
of incorporation) file number) identification No.)
1100 Landmark Towers, 345 St. Peter Street, Saint Paul, Minnesota 55102-1639
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(Address of principal executive offices)
Registrant's telephone number, including area code: (612) 293-3400
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Not Applicable
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(Former name or former address, if changed since last report)
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Item 1. Changes in Control of Registrant.
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Not applicable.
Item 2. Acquisition or Disposition of Assets.
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Not applicable.
Item 3. Bankruptcy or Receivership.
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Not applicable.
Item 4. Changes in Registrant's Certifying Accountant.
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Not applicable.
Item 5. Other Events.
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Not applicable.
Item 6. Resignations of Registrant's Directors.
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Not applicable.
Item 7. Financial Statements and Exhibits.
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(a) Financial statements of businesses acquired.
Not applicable.
(b) Pro forma financial information.
Not applicable.
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(c) Exhibits.
The following materials relating to Green Tree Securitized Net Interest
Margin Trust 1994-B are filed herewith. The exhibit numbers correspond with
Item 601(b) of Regulation S-K.
Exhibit No. Description
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1.1 Underwriting Agreement
4.1 Trust Agreement between Finance I, Finance II and
Wilmington Trust Company, as Trustee
4.2 Guarantee Fee Assignment between Green Tree Financial
Corporation and Finance I
4.3 Residual Assets Assignment between Green Tree Financial
Corporation, Finance I and Finance II
4.4 Transfer Agreement between Finance I, Finance II and the
Trust
4.5 Finance I Limited Recourse Note
4.6 Servicing Agreement between Green Tree Financial
Corporation and the Trust
4.7 Security Agreement between Finance I and the Trust
4.8 Administration Agreement among the Trust, First Trust
National Association, as Administrator and Wilmington Trust
Company, as Trustee
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
GREEN TREE FINANCIAL CORPORATION
By: /s/ Robley D. Evans
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Robley D. Evans
Vice President and Controller
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INDEX TO EXHIBITS
Exhibit Number Page
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1.1 Underwriting Agreement
4.1 Trust Agreement between Finance I, Finance II and
Wilmington Trust Company, as Trustee
4.2 Guarantee Fee Assignment between Green Tree Financial
Corporation and Finance I
4.3 Residual Assets Assignment between Green Tree Financial
Corporation, Finance I and Finance II
4.4 Transfer Agreement between Finance I, Finance II and the
Trust
4.5 Finance I Limited Recourse Note
4.6 Servicing Agreement between Green Tree Financial
Corporation and the Trust
4.7 Security Agreement between Finance I and the Trust
4.8 Administration Agreement among the Trust, First Trust
National Association, as Administrator and Wilmington
Trust Company, as Trustee
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GREEN TREE SECURITIZED NET INTEREST MARGIN
CERTIFICATES,
SERIES 1994-B
UNDERWRITING AGREEMENT
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July 20, 1994
LEHMAN BROTHERS INC.
Three World Financial Center
New York, New York 10285
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
World Financial Center
North Tower
New York, New York 10281
Dear Sirs:
Green Tree Financial Corporation (the "Company") is a Minnesota corporation
with its principal place of business in Saint Paul, Minnesota. The Company and
Green Tree Manufactured Housing Net Interest Margin Finance Corp. I, a wholly
owned subsidiary of the Company ("Finance I") (together, the "Registrants") have
filed a Registration Statement relating to the issuance and sale of $92,400,000
(approximate) principal amount of ____% Securitized Net Interest Margin
Certificates (the "Certificates") evidencing interests in Green Tree Securitized
Net Interest Margin Trust 1994-B (the "Trust"). The Certificates will be issued
pursuant to a trust agreement (the "Trust Agreement") dated as of June 1, 1994
among Finance I, Green Tree Manufactured Housing Net Interest Margin Finance
Corp. II ("Finance II"), and Wilmington Trust Company, a Delaware banking
corporation, as Trustee. The Trust will issue $92,400,000 aggregate principal
amount of the Certificates. The assets of the Trust will consist of (i) the
residual interests in four real estate mortgage investment conduits ("REMICs"),
whose assets consist of pools of manufactured housing contracts sold by or on
behalf of the Company to investors in March 1994, May 1994 and
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June 1994, (ii) a limited recourse note (the "Finance I Note") issued by Finance
I and (iii) certain related property (as described herein). The Finance I Note
will be secured by, and will be payable solely from, the Guarantee Fee payable
with respect to the pool of manufactured housing contracts created by or on
behalf of the Company in March 1994, and certain related property (as described
herein). The Company, Finance I and Finance II will be referred to collectively
herein as the "Green Tree Parties". The form of the Trust Agreement has been
filed as an exhibit to the Registration Statement (hereinafter defined).
The Certificates are more fully described in a Registration Statement that
the Registrants have furnished to you. Capitalized terms used but not defined
herein shall have the meanings given to them in the Finance I Note, the
Assignment Agreements, the Transfer Agreement, the Servicing Agreement, the
Security Agreement and the Trust Agreement (together, the "Trust Documents").
The term "you" as used herein, unless the context otherwise requires, shall mean
you and such persons as are named as co-managers in the Terms Agreement (defined
below).
The offering of Certificates pursuant to this Agreement will be made
through you or through an underwriting syndicate managed by you. When the
Company determines to make an offering of Certificates, it will enter into an
agreement (the "Terms Agreement") providing for the sale of such Certificates
to, and the purchase and offering thereof by, you and such other underwriters,
if any, selected by you as have authorized you to enter into such Terms
Agreement on their behalf (the "Underwriters", which term shall include you
whether acting alone in the sale of Certificates or as a member of an
underwriting syndicate). The Terms Agreement relating to the offering of
Certificates shall specify, among other things, the price or prices at which the
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 such Certificates are to be sold will be determined. A Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between you and the Company. The offering of Certificates will be governed by
this Agreement, as supplemented by the Terms Agreement, and this Agreement and
such Terms Agreement shall inure to the benefit of and be binding upon the
Underwriters participating in the offering of such Certificates.
The Registrants have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 33-53527) and a related
preliminary prospectus for the registration of the Certificates under the
Securities Act of 1933
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(the "1933 Act"), and have filed, and propose to file, such amendments thereto
as may have been required to the date hereof pursuant to the 1933 Act and the
rules of the Commission thereunder (the "Regulations"). Such registration
statement, as amended at the time when it became effective under the 1933 Act,
and the prospectus relating to the sale of Certificates by the Company
constituting a part thereof, as from time to time each is amended or
supplemented pursuant to the 1933 Act or otherwise, are referred to herein as
the "Registration Statement" and the "Prospectus", respectively.
The Company understands that you propose to make a public offering of the
Certificates as soon as you deem advisable after the Terms Agreement has been
executed and delivered.
SECTION 1. Representations and Warranties. Each of the Green Tree Parties
represents and warrants to you as of the date hereof, and to the Underwriters
named in the Terms Agreement, all as of the date of such Terms Agreement (in
each case, the "Representation Date") as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective did, and as of the Representation
Date will, comply in all material respects with the requirements of the
1933 Act and the Regulations. The Registration Statement, at the time it
became effective did not, and as of the Representation Date will not,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, as amended or
supplemented at the time the Registration Statement became effective did
not, and as amended or supplemented as of the Representation Date will not,
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in, or omissions from, the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Registrants in writing by you
expressly for use in the Registration Statement or Prospectus. There are
no contracts or documents of any Green Tree Party 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 the Green Tree Parties has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
state of incorporation,
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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 Trust Documents 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 Trust Documents requires such qualification.
(c) Each of the Green Tree Parties is not in violation of its
articles of incorporation or certificate of incorporation, as applicable,
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 the financial
condition, earnings, affairs or business of any of the Green Tree Parties
or which might materially and adversely affect the properties or assets
thereof.
(d) The execution and delivery by the Green Tree Parties of this
Agreement and the Terms Agreement and the execution and delivery of any
Trust Document by a Green Tree Party are within the corporate power of the
related Green Tree Party and have been duly authorized by all necessary
corporate action on the part of the related Green Tree Party; and neither
the issuance and sale of the Certificates to the Underwriters, nor the
execution and delivery by the Company of this Agreement and the Terms
Agreement, nor the execution and delivery of any Trust Document by a Green
Tree Party, nor the consummation by any of the Green Tree Parties of any of
the transactions therein contemplated, nor compliance by any of the Green
Tree Parties 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 any of the Green Tree
Parties or its properties or the articles of incorporation or certificate
of incorporation, as applicable, or by-laws of any of the Green Tree
Parties, or any of the provisions of any indenture, mortgage, contract or
other instrument to which any Green Tree Party is a party or by which it is
bound or result in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms
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of any such indenture, mortgage, contract or other instrument.
(e) This Agreement has been, and the Terms Agreement when executed
and delivered as contemplated hereby and thereby will have been, duly
authorized, executed and delivered by the Green Tree Parties, and each
constitutes, or will constitute when so executed and delivered, a legal,
valid and binding instrument enforceable against the Green Tree Parties 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 Trust Documents when executed and delivered as contemplated
hereby and thereby will have been duly authorized, executed and delivered
by each such Green Tree Party which is a party thereto, and will constitute
when so executed and delivered, a legal, valid and binding instrument
enforceable against any Green Tree Party which is a party thereto in
accordance with its terms, subject (i) to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally and (ii) as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(g) As of the Closing Time (as defined below), the Certificates will
have been duly and validly authorized, and, when executed and authenticated
as specified in the Trust Agreement, will be validly issued and outstanding
and will be entitled to the benefits of the Trust Agreement, and will be
binding obligations of the Trust to the extent provided in the Trust
Agreement.
(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 any of the Green Tree Parties of the
transactions contemplated by this Agreement, any of the Trust Documents or
the Terms Agreement, except such as may be required under the 1933 Act, the
Regulations, or state securities or Blue Sky laws.
(i) Each of the Green Tree Parties possesses all material licenses,
certificates, authorities or permits
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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 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 any of the Green Tree Parties.
(j) As of the Closing Time, the Guarantee Fee will have been
transferred to Finance I in accordance with the Guarantee Fee Assignment,
the Residual Assets will have been transferred to Finance I and Finance II
in accordance with the Residual Assets Assignment, the Guarantee Fee will
have been pledged by Finance I to the Trust to secure the Finance I Note
and the Residual Assets will have been transferred to the Trust in
accordance with the Transfer Agreement.
(k) None of the Green Tree Parties nor the Trust created by the Trust
Agreement will be subject to registration as an "investment company" under
the Investment Company Act of 1940, as amended (the "1940 Act").
(l) The Certificates and the Trust Documents conform in all material
respects to the descriptions thereof contained in the Prospectus.
(m) At the Closing Time, the Certificates shall have received the
certificate rating specified in the Terms Agreement.
(n) At the Closing Time, each of the representations and warranties
of the Green Tree Parties set forth in any of the Transaction Documents
will be true and correct.
SECTION 2. Purchase and Sale. The commitment of the Underwriters to
purchase 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, any Certificates to be
purchased by you shall be made at the office of Brown & Wood, One World Trade
Center, New York, New York 10048, or at such other place as shall be agreed upon
by-you and the Company, at such time or date as shall be agreed upon by you and
the Company in the Terms Agreement (each such time and date being referred to as
the "Closing Time"). Payment shall be made
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to the Trust, in immediately available Federal funds wired to such bank as may
be designated by the Trust. The Certificates shall be in such denominations and
registered in such names as the Underwriters may request in writing at least two
business days prior to the Closing Time. The 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 the Registrants. The Company covenants with you
as follows:
(a) Immediately following the execution of the Terms Agreement, the
Registrants will prepare the Prospectus setting forth the principal amount
of the Certificates, the price at which the Certificates are to be
purchased by you, either the initial public offering price or the method by
which the price by which the Certificates are to be sold will be
determined, the selling concession(s) and reallowance(s), if any, and such
other information as you and the Company deem appropriate in connection
with the offering of the Certificates. The Registrants will 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 Certificates by you or the
Underwriters, any event shall occur or condition exist as a result of which
it is necessary, in the opinion of your counsel, counsel for the
Registrants, or otherwise, to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of circumstances existing at the time it
is delivered to a purchaser, not misleading or if it shall be necessary, in
the opinion of any such counsel or otherwise, at any such time to amend or
supplement the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the Regulations thereunder, the
Registrants will promptly prepare and file with the Commission such
amendment or supplement as may be necessary to correct such untrue
statement or omission or to make the Registration Statement comply with
such requirements, and within two business days will furnish to you as many
copies of the Prospectus, as so amended or supplemented, as you shall
reasonably request.
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(c) The Registrants will give you reasonable notice of its intention
to file any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act or otherwise
(other than reports to be filed pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act")), will furnish you with copies of any
such amendment or supplement or other documents proposed to be filed a
reasonable time in advance of filing, and will not file any such amendment
or supplement or other documents in a form to which you or your counsel
shall object.
(d) The Registrants will notify you immediately, and confirm the
notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any document,
other than reports to be filed pursuant to the 1934 Act, (iii) of the
receipt of any comments from the Commission with respect to the
Registration Statement 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. The Registrants 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) The Company will deliver to you as many signed and as many
conformed copies of the Registration Statement (as ordinarily filed) and of
each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated by reference in the
Prospectus) as you may reasonably request.
(f) The Registrants 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. The Registrants 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.
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SECTION 4. Conditions of Underwriter's Obligations. The obligations of
the Underwriters to purchase Certificates pursuant to the Terms Agreement are
subject to the accuracy of the representations and warranties on the part of the
Green Tree Parties herein contained, to the accuracy of the statements of the
Green Tree Parties' officers made pursuant hereto, to the performance by the
Green Tree Parties of all of its obligations hereunder and to the following
further conditions:
(a) 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 Certificates shall have
received the rating 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
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.
(b) At or prior to the Closing Time you shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Dorsey &
Whitney, special counsel and general counsel for the Green Tree Parties (the
"Underwriter Opinion"), substantially in the form attached hereto as Exhibit B.
Such counsel shall state that it has participated in 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 (10) and (12) of the Underwriter Opinion) and has made no
independent check or verification thereof for the purpose of rendering this
opinion, on the basis of the foregoing (relying as to materiality to a large
extent upon the certificates of officers and other representatives of the
Registrants), nothing has come to their attention that leads such counsel to
believe that the Registration Statement, when it became effective, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Registration Statement and the Prospectus on the date of the Terms
Agreement contained, and the Prospectus on the date hereof contains, any
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untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that such
counsel need express no view with respect to the financial statements, schedules
and other financial, statistical and numerical data included in or incorporated
by reference into the Registration Statement or the Prospectus.
Said counsel may state that they are admitted to practice only in the State
of Minnesota, that they are not admitted to the Bar in any other State and are
not experts in the law of any other State and to the extent that the foregoing
opinions concern the laws of any other State such counsel may rely upon the
opinion of counsel satisfactory to 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 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 Trust 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 Trust 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 Trust
Agreement.
(iv) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body
of the jurisdiction of incorporation of the Trustee is required for
the execution, delivery or performance by the Trustee of the Trust
Agreement.
In rendering such opinion, such counsel may rely, as to
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matters of fact, to the extent deemed proper and stated therein, on certificates
of responsible officers of the Trustee or public officials.
(3) 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) At the Closing Time you shall have received a certificate of the
President or a Vice President of each of the Green Tree Parties, dated as of
such Closing Time, to the effect that the representations and warranties of each
of the Green Tree Parties contained in Section 1 are true and correct with the
same force and effect as though such Closing Time were the Representation Date.
(d) You shall have received from KPMG Peat Marwick, or other independent
certified public accountants acceptable to you, a letter, dated as of the Terms
Agreement, or as soon thereafter as is practicable, and as of the Closing Time,
delivered at such times, in the form heretofore agreed to.
(e) 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 Certificates.
(f) 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
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 the Company 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.
(g) As of the Closing Time, each of the Trust Documents 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 the Green
Tree Parties which is a party thereto, 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).
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(h) At the Closing Time, Fitch Investors Service, Inc. will have
delivered a letter to the Company stating that the Certificates are rated
"BBB+".
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the Terms Agreement may be terminated by
you by notice to the Company 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. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
without limitation those related to (i) the filing of the Registration Statement
and all amendments thereto, (ii) the printing and delivery to the Underwriters,
in such quantities as you may reasonably request, of copies of this Agreement,
each Terms Agreement, any agreements among underwriters and selling agreements
and the Underwriters' questionnaires and powers of attorney, (iii) the
preparation, issuance and delivery of the Certificates to the Underwriters, (iv)
the fees and disbursements of the Company's counsel and accountants, (v) the
qualification of the Certificates under securities and Blue Sky laws and the
determination of the eligibility of the 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
Trust Agreement, (viii) the fees charged by investment rating agencies for
rating the Certificates, (ix) the fees and expenses incurred in connection with
the listing of the Certificates on any national 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 the Terms Agreement is terminated by you in accordance with the
provisions of Section 4 or Section 9(i) hereof, the Company shall reimburse you
for all reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriter.
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SECTION 6. Indemnification. (a) The Company agrees to indemnify and hold
harmless you and each person, if any, who controls you within the meaning of
Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever 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 either of the Registrants by
the Underwriters 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 to the extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, (A) if such settlement is effected with the written
consent of the Company or (B) if such settlement is effected without the written
consent of the Company more than 30 days after receipt by the Company of a
notice from the Underwriters, substantially reflecting the proposed terms of
such settlement, to which the Company has not responded prior to the date such
settlement is effected; and
(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
of the Registrants may otherwise have. Insofar as this indemnity may permit
indemnification for
13
<PAGE>
liabilities under the 1933 Act of any person who is a partner of the
Underwriters entitled to indemnity hereby or who controls the Underwriters
within the meaning of Section 15 of the 1933 Act and who, at the date of this
Agreement is a director, officer or controlling person of either of the
Registrants, such indemnity agreement is subject to the undertaking of either of
the Registrants in the Registration Statement.
(b) Each Underwriter severally agrees to indemnify and hold harmless each
of the Registrants, each of the Registrants' directors, each of the
Registrants's officers who signed the Registration Statement, and each person,
if any, who controls either of the Registrants 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 either of the Registrants by
you 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, the Company on the one
hand, and the Underwriters, on the other, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and one or more of the
Underwriters (i) in such proportion as shall be appropriate to reflect the
relative benefit received by the Underwriters, as represented by the
14
<PAGE>
percentage that the Underwriting discount or discounts on the cover of such
Prospectus bears to the initial public offering price or prices as set forth
thereon, and the Company shall be responsible for the balance; or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the benefit referred to in
clause (i) above but also the relative fault of the Company on the one hand and
the Underwriters on the other with respect to statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations; provided, however, that
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation and, provided further, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price of the 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 the Underwriters within the
meaning of Section 15 of the 1933 Act shall have the same rights to contribution
as the Underwriters and each director of the Company, each officer of either of
the Registrants who signed the Registration Statement, and each person, if any,
who controls either of the Registrants within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as each of the Registrants.
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 any of the Green Tree Parties 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 any of
the Green Tree Parties and shall survive delivery of any Certificates to the
Underwriters.
SECTION 9. Termination of Agreement. This Agreement may be terminated for
any reason at any time by either the Company or you upon the giving of thirty
days' written notice of such termination to the other party hereto. You, as
Representative of the Underwriters named in the Terms Agreement, may also
terminate the Terms Agreement, immediately upon notice to the Company, at any
time at or prior to the Closing Time (i) if there has been, since the date of
such Terms Agreement or since the respective dates as of which information is
given in the Registration
15
<PAGE>
Statement or Prospectus any change, or any development involving a prospective
change in, or affecting, the condition, financial or otherwise, earnings,
affairs or business of the Company whether or not arising in the ordinary course
of business, which in your judgment would materially impair the market for, or
the investment quality of, the 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 your judgment,
impracticable to market the Certificates or enforce contracts for the sale of
the 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 any offering of Certificates shall remain in effect
so long as the Underwriters own any such Certificates purchased from the Company
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 an offering of Certificates shall fail at the
Closing Time to purchase the Certificates which it or they are obligated to
purchase hereunder and under the Terms Agreement (the "Defaulted Certificates"),
then such of you as are named therein shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted 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 Certificates to be
purchased pursuant to such Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated to purchase the full
amount 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
16
<PAGE>
of the Certificates to be purchased pursuant to such Terms Agreement, the
Terms Agreement shall terminate, without any liability on the part of any
non-defaulting Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriters from liability with respect to any default of such Underwriters
under this Agreement and the Terms Agreement.
In the event of a default by any Underwriters as set forth in this Section,
either you or the Company 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
Underwriter shall be directed to you at the address set forth on the first page
hereof, attention of the Syndicate Department. Notices to the Company shall be
directed to Green Tree Financial Corporation, 1100 Landmark Towers, 345 St.
Peter Street, Saint Paul, Minnesota 55102-1639, attention of the Secretary, with
a copy to the Treasurer.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon you and each of the Green Tree Parties and any Terms Agreement
shall inure to the benefit of and be binding upon each of the Green Tree Parties
and any Underwriter who becomes a party to a Terms Agreement, and their
respective successors. Nothing expressed or mentioned in this Agreement or a
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives any legal or
equitable right, remedy or claim under or with respect to this Agreement or 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 Certificates from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
17
<PAGE>
SECTION 13. Governing Law and Time. This Agreement and each Terms
Agreement shall be governed by the laws of the State of New York. Specified
times of day refer to New York City time.
SECTION 14. Counterparts. This Agreement and 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.
18
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you and the
Company in accordance with its terms.
Very truly yours,
GREEN TREE FINANCIAL CORPORATION
By______________________________
Name:
Title:
GREEN TREE MANUFACTURED HOUSING NET
INTEREST MARGIN FINANCE CORP. I
By______________________________
Name:
Title:
GREEN TREE MANUFACTURED HOUSING NET
INTEREST MARGIN FINANCE CORP. II
By______________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
LEHMAN BROTHERS INC.
By___________________________
Name:
Title:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By___________________________
Name:
Title:
19
<PAGE>
EXHIBIT A
GREEN TREE SECURITIZED NET INTEREST MARGIN
CERTIFICATES
FORM OF TERMS AGREEMENT
-----------------------
[To Be Provided]
A-1
<PAGE>
GREEN TREE SECURITIZED NET INTEREST MARGIN CERTIFICATES
TERMS AGREEMENT
---------------
Dated: July 20, 1994
To: Green Tree Financial Corporation, (the "Company"),
Green Tree Manufactured Housing Net Interest Margin
Finance Corp. I ("Finance I") and Green Tree Manufactured
Housing Net Interest Margin Finance Corp. II ("Finance II")
Re: Underwriting Agreement dated July 20, 1994
Series Designation: Green Tree Securitized Net Interest Margin
- - ------------------ Certificates, Series 1994-B
Co-managers:
- - -----------
Lehman Brothers Inc. ("Lehman Brothers")
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch")
Terms of the Certificates:
- - -------------------------
Original
Principal Certificate Interest
Amount Rate
- - --------- --------------------
$92,400,000 7.85%
Certificate Rating:
- - -------------------
"BBB+" by Fitch Investors Service, Inc.
Servicer:
- - --------
Green Tree Financial Corporation (in such capacity, the "Servicer")
<PAGE>
Trust:
- - -----
The Trust shall include (i) the residual interests in four real estate
mortgage investment conduits ("REMICs"), whose assets consist of pools of
manufactured housing contracts sold by or on behalf of the Company to investors
in March 1994, May 1994 and June 1994, (ii) a limited recourse note (the
"Finance I Note") issued by Finance I and (iii) certain related property (as
described herein). The Finance I Note will be secured by, and will be payable
solely from, the Guarantee Fee payable with respect to the pool of manufactured
housing contracts created by or on behalf of the Company in March 1994, and
certain related property (as described herein).
Credit Enhancement:
- - ------------------
Subordination of Subordinated Certificates to Securitized Net
Interest Margin Certificates.
Payment Dates:
- - -------------
The 15th day (or if such day is not a business day, the next
succeeding business day) of each month commencing on August 15, 1994.
Purchase Price:
- - --------------
Subject to the terms of the following paragraph, the purchase price
payable by the Underwriters for the Certificates is 97.984375% of the principal
amount of the Certificates plus accrued interest, if any, at the Certificate
Interest Rate (7.85%) from July 27, 1994.
Any allocation of the Certificates among Lehman Brothers and Merrill
Lynch will be governed by the Agreement Among Underwriters.
Underwriting Commission:
- - -----------------------
Notwithstanding anything to the contrary in the Underwriting
Agreement, no additional underwriting commission shall be payable by the Company
to the Underwriters in connection with the purchase of the Certificates.
Public Offering price and/or method of determining price at which the
Underwriters will sell the Certificates:
99.984375%
Closing Date and Location:
- - -------------------------
On or about July 27, 1994, offices of Brown & Wood, One World Trade
Center, New York, New York.
2
<PAGE>
LEHMAN BROTHERS INC.
By:__________________________________
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:__________________________________
Name:
Title:
ACCEPTED:
GREEN TREE FINANCIAL CORPORATION
By:_______________________________
Name:
Title:
GREEN TREE MANUFACTURED HOUSING
NET INTEREST MARGIN FINANCE CORP. I
By:_______________________________
Name:
Title:
GREEN TREE MANUFACTURED HOUSING
NET INTEREST MARGIN FINANCE CORP. II
By:_______________________________
Name:
Title:
3
<PAGE>
EXHIBIT 4.1
TRUST AGREEMENT
Dated as of June 1, 1994
among
GREEN TREE MANUFACTURED HOUSING
NET INTEREST MARGIN FINANCE CORP. I,
GREEN TREE MANUFACTURED HOUSING
NET INTEREST MARGIN FINANCE CORP. II,
and
WILMINGTON TRUST COMPANY
Trustee
GREEN TREE SECURITIZED NET INTEREST MARGIN TRUST 1994-B
<PAGE>
THIS TRUST AGREEMENT, dated as of June 1, 1994, is made among Green Tree
Manufactured Housing Net Interest Margin Finance Corp. I, a Delaware corporation
("Finance I"), Green Tree Manufactured Housing Net Interest Margin Finance Corp.
II, a Delaware corporation ("Finance II"), and Wilmington Trust Company, a
Delaware banking corporation, as Trustee (in such capacity, the "Trustee").
In consideration of the mutual agreements herein contained, and of other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. All terms defined in the Assignment Agreements,
the Finance I Note, the Security Agreement, the Servicing Agreement or the
Transfer Agreement (each as defined below) shall have the same meaning in this
Agreement. Whenever capitalized and used in this Agreement, the following words
and phrases, unless otherwise specified, shall have the following meanings:
Administration Agreement: The Administration Agreement dated as of June 1,
1994, among the Administrator, the Trust and the Trustee, as the same may be
amended and supplemented from time to time.
Administrator: First Trust National Association, or any successor
Administrator under the Administration Agreement.
Agreement or "this Agreement": This Trust Agreement, all amendments and
supplements thereto and all exhibits and schedules to any of the foregoing.
Amount Available: With respect to any Distribution Date, the sum of the
amounts contained in the Certificate Account on such Distribution Date.
Assignment Agreements: Each of (i) the Guarantee Fee Assignment, dated as
of June 1, 1994, between Green Tree and Finance I; and (ii) the Residual Asset
Assignment, dated as of June 1, 1994, among Green Tree, Finance I and Finance
II.
Authentication Agent: First Trust National Association, or its successor
in interest, and any successor authentication agent appointed as provided in
this Agreement.
Book-Entry Certificate: Any Senior Certificate registered in the name of
the Depository or its nominee, ownership of which is reflected on the books of
the Depository or on the books of a person maintaining an account with such
<PAGE>
Depository (directly or as an indirect participant in accordance with the rules
of such Depository).
Business Day: Any day other than (a) a Saturday or a Sunday, or (b)
another day on which banking institutions in the city in which a person is
taking action hereunder are authorized or obligated by law, executive order, or
governmental decree to be closed.
Business Trust Statute: Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code (S) 3801 et seq., as the same may be amended from time to time.
Certificate: A Senior Certificate or a Subordinated Certificate, as
applicable.
Certificate Account: The account designated as the Certificate Account in,
and which is established and maintained pursuant to, Section 5.1.
Certificate Majority: With respect to any date of determination, (i) with
respect to the Senior Certificates, Certificate Owners owning not less than a
majority of the aggregate outstanding principal amount of the Senior
Certificates, or (ii) with respect to the Subordinated Certificates, the Holders
of not less than a majority of the aggregate outstanding principal amount of the
Subordinated Certificates.
Certificate Owner: With respect to any Book-Entry Certificate, each Person
who is the beneficial owner of a Book-Entry Certificate as reflected in the
records of the Depository or if a Depository Participant is not the Certificate
Owner, then as reflected in the records of a Person maintaining an account with
the Depository (directly or indirectly, in accordance with the rules of the
Depository); and with respect to any Definitive Certificate, the
Certificateholder.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 3.6.
Certificate of Trust: The Certificate of Trust in the form of Exhibit A
hereto filed for the Trust pursuant to Section 3810(a) of the Business Trust
Statute.
Certificateholder or Holder: A Person in whose name a Certificate is
registered in the Certificate Register.
Closing Date: July 27, 1994.
Code: The Internal Revenue Code of 1986, as amended.
Corporate Trust Office: The principal office of the Trustee at which at
any particular time its corporate trust business shall be administered, which
office at the Closing Date is located at Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration; the
-2-
<PAGE>
telecopy number for the Corporate Trust Office on the date of the execution of
this Agreement is (302) 651-8882.
Cut-Off Date: June 1, 1994 (or July 1, 1994, with respect to the Contracts
included in the 1994-4 Securitized Pool).
Definitive Certificate: The meaning specified in Section 3.6(h).
Demand Note: The Demand Note, dated July 27, 1994, issued by Green Tree to
Finance II, and any demand notes issued in replacement thereof.
Depositor: Finance I in its capacity as depositor hereunder.
Depository: The initial Depository, The Depository Trust Company, the
nominee of which is Cede & Co., as the registered Holder of $92,400,000 in
aggregate principal amount of the Senior Certificates as of the Closing Date,
and any permitted successor depository. The Depository shall at all times be a
"clearing corporation" as defined in Section 8-102(3) of the Uniform Commercial
Code of the State of New York.
Depository Agreement: The agreement among the Trust, the Administrator and
The Depository Trust Company, as the initial Depository, dated as of the Closing
Date, relating to the Senior Certificates, substantially in the form attached as
Exhibit D.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: The meaning assigned to such term in the Pooling and
Servicing Agreements relating to the Securitized Pools.
Dissolution Event: With respect to any Subordinated Certificateholder, a
Dissolution Event means the withdrawal or expulsion of such Person as a
Subordinated Certificateholder of the Trust or the termination or dissolution of
such Person, or the occurrence of an Insolvency Event with respect to such
Person.
Distribution Date: The fifteenth day of each calendar month during the
term of this Agreement, or if such day is not a Business Day, the next
succeeding business day.
Eligible Account: A trust account created and maintained in the name of
the Trust in an Eligible Institution pursuant to Section 5.1.
Eligible Institution: Any depository institution (which may be the Trustee
or an Affiliate of the Trustee) organized under the laws of the United States or
any
-3-
<PAGE>
State, the deposits of which are insured to the full extent permitted by law by
the Bank Insurance Fund (currently administered by the Federal Deposit Insurance
Corporation), which is subject to supervision and examination by federal or
state authorities and whose short-term securities or unsecured long-term debt
has been rated P-1 or higher by Moody's and F-1 or higher by Fitch (if rated by
Fitch) in the case of short-term securities, or in one of the two highest rating
categories by Moody's and one of the three highest categories by Fitch (if rated
by Fitch) in the case of unsecured long-term debt.
Eligible Investments: "Eligible Investments" means any of the following:
(i) direct obligations of, and obligations fully guaranteed by, the
United States of America, the Federal Home Loan Mortgage Corporation, the
Federal National Mortgage Association, or any agency or instrumentality of
the United States of America the obligations of which are backed by the
full faith and credit of the United States of America and which are
noncallable;
(ii) (A) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by, or federal funds sold by any depository
institution or trust company (including the Trustee or any Affiliate of the
Trustee, acting in its commercial capacity) incorporated under the laws of
the United States of America or any state thereof and subject to
supervision and examination by federal and/or state authorities, so long
as, at the time of such investment or contractual commitment providing for
such investment, the commercial paper or other short-term debt obligations
of such depository institution or trust company are rated at least P-1 by
Moody's and at least F-1 by Fitch (if rated by Fitch) and (B) any other
demand or time deposit or certificate of deposit which is fully insured by
the Federal Deposit Insurance Corporation;
(iii) shares of an investment company registered under the Investment
Company Act of 1940, whose shares are registered under the Securities Act
of 1933 and have the highest credit rating then available from Moody's and
Fitch (if rated by Fitch), and whose only investments are in securities
described in clauses (i) and (ii) above;
(iv) repurchase obligations with respect to (A) any security described
in clause (i) above or (B) any other security issued or guaranteed by an
agency or instrumentality of the United States of America, in either case
entered into with any institution whose debt is rated by Moody's and Fitch
(if rated by Fitch) in one of its two highest long-term debt rating
categories or whose commercial paper is rated P-1 by Moody's and F-1 or
higher by Fitch (if rated by Fitch);
(v) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
-4-
<PAGE>
any State thereof which have a credit rating of at least Aa from Moody's
and in one of the three highest rating categories from Fitch (if rated by
Fitch) at the time of such investment; provided, however, that securities
issued by any particular corporation will not be Eligible Investments to
the extent that investment therein will cause the then outstanding
principal amount of securities issued by such corporation and held as part
of the corpus of the Trust to exceed 10% of amounts held in the Certificate
Account; and
(vi) commercial paper having a rating of P-1 from Moody's and F-1 or
higher from Fitch (if rated by Fitch) at the time of such investment.
The Trustee may trade with itself or an Affiliate in the purchase or sale
of such Eligible Investments.
ERISA: The meaning assigned to such term in Section 3.5(j).
Event of Default: The meaning assigned to such term in Section 9.1.
Expenses: The meaning assigned to such term in Section 8.2.
Finance I Note: The limited recourse note dated July 27, 1994, issued by
Finance I to the Trust.
Green Tree: Green Tree Financial Corporation, a Minnesota corporation, and
its successors in interest.
Insolvency Event: With respect to each of the Subordinated
Certificateholders, (a) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of such Person or any substantial
part of its property in an involuntary case under any applicable Federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official for such person or for any substantial part of its property, or
ordering the winding-up or liquidation of such Person's affairs, and such decree
or order shall remain unstayed and in effect for a period of 60 consecutive
days; or (b) the commencement by such Person of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by such Person to the entry of an order for
relief in an involuntary case under any such law, or the consent by such Person
to the appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due, or the taking of action by such
Person in furtherance of any of the foregoing.
Insolvency Proceeds: The meaning assigned to such term in Section 10.2.
-5-
<PAGE>
Interest Rate: 7.85% per annum, payable monthly at one-twelfth of the
annual rate (calculated on the basis of a 360-day year of 30-day months).
Minimum Net Worth: At any time of determination, $6,000,000.
Moody's: Moody's Investors Service, Inc., or its successor in interest.
Paying Agent: Any paying agent or co-paying agent appointed pursuant to
Section 3.10, which initially shall be the Administrator.
Percentage Interest: With respect to any Subordinated Certificate, the
percentage evidenced on such Subordinated Certificate. The aggregate Percentage
Interest of all of the Subordinated Certificates shall equal 100%.
Person: Any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
Rating Agency: Fitch Investors Service, Inc. ("Fitch"), so long as such
rating agency maintains a rating on the Senior Certificates; and if Fitch no
longer maintains a rating on the Senior Certificates, such other nationally
recognized statistical rating organization selected by Finance I.
Record Date: With respect to any Distribution Date, the close of business
on the Business Day immediately preceding such Distribution Date.
Related Documents: The Certificates, the Assignment Agreements, the
Transfer Agreement, the Finance I Note, the Administration Agreement, the
Security Agreement, the Servicing Agreement, the Depository Agreement, and the
Underwriting Agreement between Green Tree, Finance I, Finance II, and the
underwriters of the Senior Certificates. The Related Documents executed by any
party are referred to herein as "such party's Related Documents," "its Related
Documents" or by a similar expression.
Remaining Amount Available: With respect to any Distribution Date, other
than the first Distribution Date, the amount remaining in the Certificate
Account after payment of the Senior Certificateholders' Interest Distributable
Amount to the holders of the Senior Certificates and (to the extent not paid by
Green Tree or the Subordinated Certificateholders) payment to the Trustee or the
Administrator of any accrued and unpaid fees, pursuant to Section 5.2. With
respect to the first Distribution Date, the Remaining Amount Available shall be
reduced by $________ [42 days' accrued interest], which amount shall be paid to
the Subordinated Certificateholders.
-6-
<PAGE>
Responsible Officer: With respect to the Trustee, any officer of the
Trustee assigned by the Trustee to administer its corporate trust affairs
relating to the Trust.
Secretary of State: The Secretary of State of the State of Delaware.
Securitized Pools: The four pools of manufactured housing contracts sold
by or on behalf of Green Tree to investors in March 1994, May 1994 and June
1994.
Security Agreement: The Security Agreement, dated as of July 27, 1994,
between Finance I and the Trust.
Senior Certificate: A Securitized Net Interest Margin Certificate executed
by the Trustee and authenticated by or on behalf of the Trustee, substantially
in the form attached hereto as Exhibit B.
Senior Certificateholder: A Person in whose name a Senior Certificate is
registered.
Senior Certificateholders' Interest Distributable Amount: With respect to
any Distribution Date, other than the Distribution Date occurring in August
1994, one month's interest at the Interest Rate on the outstanding principal
amount of the Senior Certificates (computed on the basis of a 360-day year of
twelve 30-day months), plus any Senior Certificateholders' Interest Shortfall
with respect to prior Distribution Dates together (to the extent legally
permissible) with interest thereon at the Interest Rate. With respect to the
Distribution Date occurring on August 15, 1994, interest shall accrue from the
Closing Date to but not including August 15, 1994.
Senior Certificateholders' Interest Shortfall: With respect to any
Distribution Date, the amount, if any, by which the amount distributed to the
Senior Certificateholders on such Distribution Date is less than the Senior
Certificateholders' Interest Distributable Amount.
Senior Certificateholders' Principal Distributable Amount: With respect to
any Distribution Date, the Remaining Amount Available for such Distribution
Date; provided, however, that the Senior Certificateholders' Principal
Distributable Amount shall not exceed the outstanding principal amount of the
Senior Certificates.
Servicer: Green Tree Financial Corporation, in its capacity as Servicer
pursuant to the Servicing Agreement and any successor Servicer appointed
pursuant to such agreement.
Servicing Agreement: The Servicing Agreement, dated as of June 1, 1994,
between the Trust and Green Tree, as Servicer, as the same may be amended and
supplemented from time to time.
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Subordinated Certificate: A certificate executed by the Trustee and
authenticated by or on behalf of the Trustee evidencing a fractional undivided
interest in the Trust, substantially in the form attached hereto as Exhibit C.
Subordinated Certificateholder: A Person in whose name a Subordinated
Certificate is registered.
Transfer Agreement: The Transfer Agreement, dated as of June 1, 1994,
among Finance I, Finance II and the Trust.
Trust: The trust created by this Agreement, the estate of which consists
of the Trust Property.
Trust Property: The property and proceeds of every description conveyed
pursuant to Sections 2.5 and 3.2 hereof, Section 1.01 of the Transfer Agreement,
the Finance I Note and the collateral securing such Note, together with the
Certificate Account (including all Eligible Investments therein and all proceeds
therefrom).
Trustee: Wilmington Trust Company, or its successor in interest, acting
not individually but solely as trustee, and any successor trustee appointed as
provided in this Agreement.
Section 1.2. Usage of Terms. With respect to all terms used in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the terms "include"
or "including" mean "include without limitation" or "including without
limitation." To the extent that definitions are contained in this Agreement, or
in any such certificate or other document, such definitions shall control.
Section 1.3. Calculations. All calculations of the amount of interest
accrued on the Senior Certificates shall be made on the basis of a 360-day year
consisting of twelve 30-day months.
Section 1.4. Section References. All references to Articles, Sections,
paragraphs, subsections, exhibits and schedules shall be to such portions of
this Agreement unless otherwise specified.
Section 1.5. Action by or Consent of Certificateholders.
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(a) Except as expressly provided herein, any action that may be taken by
the Certificateholders under this Agreement may be taken by a Certificate
Majority of each of the Senior Certificateholders and the Subordinated
Certificateholders voting separately as a class, unless the action proposed
affects only one class or unless this Agreement provides that the vote with
respect to the matter may be taken by only one class, in which case only the
vote of the affected class shall be required. Except as expressly provided
herein, any written notice or consent by the Senior Certificateholders or of the
Subordinated Certificateholders delivered pursuant to this Agreement shall be
effective for such class if signed by Holders of Senior Certificates or
Subordinated Certificates, as the case may be, evidencing not less than a
Certificate Majority with respect to such class, at the time of the delivery of
such notice.
(b) Whenever any provision of this Agreement refers to action to be taken,
or consented to, by Certificateholders, such provision shall be deemed to refer
to Certificateholders or Certificate Owners (as applicable) of record as of the
Record Date immediately preceding the date on which such action is to be taken,
or consent given, by Certificateholders. Solely for the purposes of any action
to be taken, or consented to, by Senior Certificateholders, any Senior
Certificate registered in the name of Green Tree, Finance I and Finance II or
any Affiliate thereof shall be deemed not to be outstanding and the aggregate
principal balance of such Senior Certificates represented thereby shall not be
taken into account in determining whether the requisite aggregate principal
balance of such Senior Certificates necessary to effect any such action or
consent has been obtained; provided, however, that, solely for the purpose of
determining whether the Trustee is entitled to rely upon any such action or
consent, only Senior Certificates which the Trustee knows to be so owned shall
be so disregarded.
ARTICLE II
CREATION OF TRUST
Section 2.1. Creation of Trust. There is hereby formed a trust to be
known as "Green Tree Securitized Net Interest Margin Trust 1994-B," in which
name the Trust may conduct business, make and execute contracts and other
instruments and sue and be sued.
Section 2.2. Office. The office of the Trust shall be in care of the
Trustee at the Corporate Trust Office or at such other address in Delaware as
the Trustee may designate by written notice to the Certificateholders and the
Depositor.
Section 2.3. Purposes and Powers. The purpose of the Trust is, and the
Trust shall have the power and authority, to engage in the following activities:
(i) to issue the Certificates pursuant to this Agreement and to sell the
Certificates;
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(ii) with the proceeds of the sale of the Certificates, to pay the
organizational, start-up and transactional expenses of the Trust, to the extent
not paid by the Depositor or Green Tree, to loan $34,700,000 of the proceeds
from the sale of the Certificates to Finance I (upon delivery of the Finance I
Note and the Security Agreement), and to pay the balance of such proceeds to
Finance I and Finance II;
(iii) to enter into and perform its obligations under the Related
Documents to which it is to be a party;
(iv) to engage in those activities, including entering into agreements,
that are necessary or suitable to accomplish the foregoing or are incidental
thereto or connected therewith; and
(v) subject to compliance with the Related Documents, to engage in such
other activities as may be required in connection with conservation of the Trust
Property and the making of distributions to the Certificateholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or expressly authorized by the terms of this Agreement or
the Related Documents.
Section 2.4. Appointment of Trustee. The Depositor hereby appoints the
Trustee as trustee of the Trust effective as of the date hereof, to have all the
rights, powers and duties set forth herein, and the Trustee hereby accepts such
appointment.
Section 2.5. Initial Capital Contribution of Trust Estate. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Trustee, as of
the date hereof, the sum of $10. The Trustee hereby acknowledges receipt in
trust from the Depositor, as of the date hereof, of the foregoing contribution,
which shall constitute the initial Trust Property and shall be deposited in the
Certificate Account. The Depositor shall pay organizational expenses of the
Trust as they may arise or shall, upon the request of the Trustee, promptly
reimburse the Trustee for any such expenses paid by the Trustee.
Section 2.6. Declaration of Trust. The Trustee hereby declares that it
will hold the Trust Property in trust upon and subject to the conditions set
forth herein for the use and benefit of the Certificateholders. It is the
intention and agreement of the parties hereto that the Trust constitute a
business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. It is the intention
and agreement of the parties hereto that, solely for income and franchise tax
purposes, the Trust shall be treated as a partnership, with the Subordinated
Certificateholders as the sole partners
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thereof. The parties agree that, unless otherwise required by appropriate tax
authorities, the Trust will file or cause to be filed annual or other necessary
returns, reports and other forms consistent with the characterization of the
Trust as a partnership for such tax purposes. Effective as of the date hereof,
the Trustee shall have all rights, powers and duties set forth herein and in the
Business Trust Statute with respect to accomplishing the purposes of the Trust.
Section 2.7. Liability of the Certificateholders.
(a) Each of Finance I and Finance II shall be liable directly to indemnify
each injured party for all losses, claims, damages, liabilities and expenses of
the Trust, to the extent not paid out of the Trust Property, to the extent that
such Person would be liable if the Trust were a partnership under the Delaware
Uniform Partnership Act and such Person were a general partner; provided,
however, that neither Finance I nor Finance II shall be liable for any losses
incurred by a Certificate Owner in the capacity of an investor in the Senior
Certificates. In addition, any third party creditors of the Trust (other than
in connection with the obligations described in the proviso to the preceding
sentence for which neither Finance I nor Finance II shall be liable) shall be
deemed third party beneficiaries of this paragraph. The obligations of Finance
I and Finance II under this paragraph shall be evidenced by Subordinated
Certificates as described in Section 3.5(j), which for purposes of the Business
Trust Statute shall be deemed to be a separate class of certificates from the
Senior Certificates.
(b) No Certificate Owner, other than to the extent set forth in paragraph
(a), shall have any personal liability for any liability or obligation of the
Trust or by reason of any action taken by the parties to this Agreement pursuant
to any provisions of this Agreement or any Related Document.
Section 2.8. Title to Trust Property.
(a) Legal title to all the Trust Property shall be vested at all times in
the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Property to be vested in a
trustee or trustees, in which case title shall be deemed to be vested in the
Trustee, a co-trustee and/or a separate trustee, as the case may be.
(b) The Certificateholders shall not have legal title to any part of the
Trust Property. The Certificateholders shall be entitled to receive
distributions only in accordance with Articles V, IX and X. No transfer, by
operation of law or otherwise, of any right, title or interest by any
Certificateholder of its ownership interest in any Certificate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Property.
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Section 2.9. Situs of Trust. The Trust will be located and administered
in the State of Delaware. The Trust shall not have any employees in any state
other than Delaware; provided, however, that nothing herein shall restrict or
prohibit the Trustee, the Depositor or any agent of the Trust from having
employees within or without the State of Delaware.
Section 2.10. Representations and Warranties of Finance I and Finance II.
By execution of this Agreement, each of Finance I and Finance II makes the
following representations and warranties with respect to itself on which the
Trustee relies in accepting the Trust Property in trust and issuing the
Certificates:
(a) Organization and Good Standing. It has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority to own its properties and to conduct its
business as such properties are currently owned and as such business is
currently conducted and is proposed to be conducted pursuant to this Agreement
and the Related Documents.
(b) Due Qualification. It is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of its property,
the conduct of its business and the performance of its obligations under this
Agreement and the Related Documents requires such qualification.
(c) Power and Authority. It has the power and authority to execute and
deliver this Agreement and its Related Documents and to perform its obligations
pursuant thereto; and the execution, delivery and performance of this Agreement
and its Related Documents have been duly authorized by all necessary corporate
action.
(d) No Consent Required. No consent, license, approval or authorization or
registration or declaration with, any Person or with any governmental authority,
bureau or agency is required in connection with the execution, delivery or
performance of this Agreement and the Related Documents, except for such as have
been obtained, effected or made.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and its Related Documents and the fulfillment of its obligations
under this Agreement and its Related Documents shall not conflict with, result
in any breach of any of the terms and provisions of or constitute (with or
without notice, lapse of time or both) a default under, its Certificate of
Incorporation or By-Laws, or any indenture, agreement, mortgage, deed of trust
or other instrument to which it is a party or by which it is bound, or result in
the creation or imposition of any lien upon any of its properties pursuant to
the terms of any such indenture, agreement, mortgage, deed of trust or other
instrument, or violate any law, order, rule or regulation applicable to it of
any court or of any
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federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over it or any of its properties.
(f) No Proceedings. There are no proceedings or investigations pending
or, to its knowledge, threatened against it before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over it or its properties (A) asserting the invalidity of this
Agreement or any of the Related Documents, (B) seeking to prevent the issuance
of the Certificates or the consummation of any of the transactions contemplated
by this Agreement or any of the Related Documents, (C) seeking any determination
or ruling that might materially and adversely affect its performance of its
obligations under, or the validity or enforceability of, this Agreement or any
of the Related Documents, or (D) seeking to adversely affect the federal income
tax or other federal, state or local tax attributes of the Certificates.
Section 2.11. Federal Income Tax Allocations. Net income of the Trust for
any month as determined for federal income tax purposes (and each item of
income, gain, loss, deduction and credit, if any, entering into the computation
thereof) shall be allocated:
(a) to the Subordinated Certificateholders in equal proportions; and
(b) in the event the Senior Certificateholders are deemed to be partners of
the partnership created hereby, among such Senior Certificateholders as of the
first Record Date following the end of such month in proportion to their
ownership of the principal amount of Senior Certificates on such date, in an
amount of such income up to the sum of the Senior Certificateholders' Interest
Distributable Amount for such month, and the balance thereof shall be allocated
to the Subordinated Certificateholders in accordance with clause (a) above. If
the net income in succeeding months of the Trust for any month is insufficient
for the allocations to Senior Certificateholders described in this clause (b),
if applicable, net income shall first be allocated to such Senior
Certificateholders to make up such shortfall before being allocated to
Subordinated Certificateholders as provided above.
Net losses of the Trust, if any, for any month as determined for federal
income tax purposes (and each item of income, gain, loss and deduction entering
into the computation thereof) shall be allocated to the Subordinated
Certificateholders to the extent the Subordinated Certificateholders are
reasonably expected to bear the economic burden of such net losses, then net
losses shall be allocated among the Senior Certificateholders as of the first
Record Date following the end of such month in proportion to their ownership of
principal amount of Senior Certificates on such Record Date. Notwithstanding
anything in this Agreement to the contrary, the Subordinated Certificateholders
shall be allocated an aggregate of at least 1% of each item of income, profit,
gain or loss of the Trust. The Subordinated Certificateholders are authorized
to modify the allocations in this
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paragraph if necessary or appropriate, in their sole discretion, for the
allocations to fairly reflect the economic income, gain or loss to the
Subordinated Certificateholders or the Senior Certificateholders, or to comply
with the provisions of the Code and the accompanying Treasury Regulations.
Section 2.12. Covenants of the Subordinated Certificateholders. Each
Subordinated Certificateholder agrees and covenants for the benefit of each
Certificate Owner and the Trustee, during the term of this Agreement, and to the
fullest extent permitted by applicable law, that:
(a) it shall not (i) assign, sell, convey, pledge, transfer, reconvey,
cancel, forgive, compromise or otherwise dispose of any Demand Note held by it,
in whole or in part, (ii) make any distribution other than to the Trust or
unless the aggregate net worth of the Subordinated Certificateholders following
such distribution shall be at least equal to the Minimum Net Worth (for the
purpose of the determination of net worth: (A) any Demand Note held by it shall
be valued at par, (B) the value of the Guarantee Fee shall be valued as shown on
the most recent servicing report, minus the unpaid balance of the Finance I
Note, (C) the Subordinated Certificates shall be valued at zero, (D) investments
shall be valued at their respective purchase prices plus accrued interest, (E)
the Subordinated Certificateholders' interest in any other partnership shall be
valued at zero, and (F) contributions made to any Subordinated Certificateholder
in connection with its status as a general partner of any other partnership
shall be valued at zero) or (iii) except as specifically permitted by this
Agreement, sell, transfer, assign, give or encumber by operation of law or
otherwise any of its assets;
(b) it shall not sell, assign, transfer, give or encumber, by operation of
law or otherwise, at least fifty-one percent (51%) of the interest evidenced by
the Subordinated Certificates and shall not sell, assign, transfer, give or
encumber, by operation of law or otherwise, any interest in the Subordinated
Certificates to Green Tree Financial Corporation or its successors in interest;
(c) it shall not create, incur or suffer to exist any indebtedness or
engage in any business, except, in each case, as permitted by its Certificate of
Incorporation and the Related Documents;
(d) it shall not, for any reason, institute proceedings for the Trust to be
adjudicated a bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against the Trust, or file a petition seeking or
consenting to reorganization or relief under any applicable federal or state law
relating to the bankruptcy of the Trust, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Trust or a substantial part of the property of the Trust or
cause or permit the Trust to make any assignment for the benefit of creditors,
or admit in writing the inability of the Trust to pay its debts generally as
they become due, or declare or effect a moratorium on the debt of the Trust or
take any action in furtherance of any such action;
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(e) it shall obtain from each counterparty to each Related Document to
which it or the Trust is a party and each other agreement entered into on or
after the date hereof to which it or the Trust is a party, an agreement by each
such counterparty that prior to the termination of the Trust pursuant to Section
10.1(a) such counterparty shall not institute against, or join any other Person
in instituting against, it or the Trust, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceedings
under the laws of the United States or any state of the United States;
(f) it shall not for any reason, withdraw or attempt to withdraw from this
Agreement, dissolve, institute proceedings for it to be adjudicated a bankrupt
or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against it, or file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating to
bankruptcy, or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of it or a substantial part of
its property, or make any assignment for the benefit of creditors, or admit in
writing its inability to pay its debts generally as they become due, or declare
or effect a moratorium on its debt or take any action in furtherance of any such
action;
(g) it has no claim to any funds in the Certificate Account or any other
Trust Property, except to the extent any such funds or Trust Property are
distributed in accordance with Section 5.2.
Section 2.13. Covenants of the Certificate Owners. Each Certificate Owner
by becoming a beneficial owner of a Book-Entry Certificate agrees:
(a) to be bound by the terms and conditions of the Senior Certificates of
which such Certificate Owner is the beneficial owner and of this Agreement,
including any supplements or amendments hereto and to perform the obligations of
a Certificate Owner as set forth therein or herein, in all respects as if it
were a signatory hereto. This undertaking is made for the benefit of the Trust,
the Trustee and all other Certificate Owners present and future.
(b) to treat the Senior Certificates as debt of the Trust for all tax
purposes and to not take any position inconsistent with such treatment in any
tax returns filed by such Certificate Owner.
(c) until the completion of the events specified in Section 10.1(c), not
to, for any reason, institute proceedings for the Trust or a Subordinated
Certificateholder to be adjudicated a bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Trust, or file a
petition seeking or consenting to reorganization or relief under any applicable
federal or state law relating to bankruptcy, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the
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Trust or a substantial part of its property, or cause or permit the Trust to
make any assignment for the benefit of its creditors, or admit in writing its
inability to pay its debts generally as they become due, or declare or effect a
moratorium on its debt or take any action in furtherance of any such action.
ARTICLE III
THE CERTIFICATES
Section 3.1. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.5 and until the issuance of
the Certificates, the Depositor shall be the sole beneficiary of the Trust.
Section 3.2. Conditions to Issuance of the Certificates. On the Closing
Date, Finance I and/or Finance II shall deliver or cause to be delivered the
following documents to the Trustee:
a. Executed copies of the Assignment Agreements;
b. An executed copy of the Transfer Agreement, dated as of June 1, 1994,
among Finance I, Finance II and the Trust (substantially in the form
attached hereto as Exhibit E).
c. The executed copy of the Finance I Note, dated as of July ___, 1994,
issued by Finance I to the Trust (substantially in the form attached
hereto as Exhibit F).
d. An executed copy of the Security Agreement, dated as of July ___, 1994,
between Finance I and the Trust (substantially in the form attached
hereto as Exhibit G).
e. An executed copy of the Servicing Agreement, dated as of June 1, 1994,
between Green Tree and the Trust (substantially in the form attached
hereto as Exhibit H).
Section 3.3. The Certificates. Senior Certificates, in an aggregate
principal amount of $92,400,000, shall be issued in denominations of $1,000
initial principal amount and integral multiples thereof. One Subordinated
Certificate shall be issued to each of Finance I and Finance II in denominations
equal to a Percentage Interest of 50%, with an aggregate Percentage Interest of
100%. The Certificates shall be executed on behalf of the Trustee by manual or
facsimile signature of any authorized signatory of the Trustee having such
authority under the Trustee's seal imprinted or otherwise affixed thereon and
attested on behalf of the Trustee by the manual or facsimile signature of any
authorized signatory of the Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
were affixed, authorized to sign on behalf of the
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Trustee shall be valid and binding obligations of the Trust, notwithstanding
that such individuals or any of them have ceased to be so authorized prior to
the authentication and delivery of such Certificates.
Section 3.4. Unconditional Rights of Senior Certificateholders to Receive
Principal and Interest. Notwithstanding any other provisions in this Agreement,
the holder of any Senior Certificate shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest on such
Senior Certificate on or before the Distribution Date occurring in July 2004;
provided, however, that no provisions contained herein shall restrict the right
of the Trust to pay the Senior Certificates in full, prior to the Distribution
Date occurring in July 2004.
Section 3.5. Authentication of Certificates. Simultaneously with the
delivery to the Trustee of the Finance I Note and the sale, assignment and
transfer to the Trust of the Residual Assets and the other Trust Property
pursuant to the Transfer Agreement, the Trustee shall cause to be executed on
behalf of the Trust, authenticated and delivered to Cede & Co., Senior
Certificates in authorized denominations equaling in the aggregate $92,400,000
and Subordinated Certificates with an aggregate Percentage Interest of 100%. No
Certificate shall entitle its holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in (i) Exhibit
B in the case of a Senior Certificate or (ii) Exhibit C in the case of a
Subordinated Certificate, executed by the Trustee or the Authentication Agent,
by manual or facsimile signature; such authentication shall constitute
conclusive evidence that such Certificate shall have been duly authenticated and
delivered hereunder. The Administrator is hereby initially appointed
Authentication Agent. All Certificates shall be dated the date of their
authentication.
Section 3.6. Registration of Transfer and Exchange of Senior Certificates.
(a) The Certificate Registrar shall maintain, or cause to be maintained, at
the office or agency maintained pursuant to Section 3.10, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as provided in this Agreement. The Administrator is
hereby initially appointed Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as provided in this
Agreement.
(b) Upon surrender for registration of transfer of any Certificate at the
office or agency maintained pursuant to Section 3.10, the Trustee shall execute,
authenticate and deliver (or shall cause the Authentication Agent to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more
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new Certificates in authorized denominations of a like class and aggregate
principal amount, or Percentage Interest, with respect to the Subordinated
Certificates, dated the date of authentication by the Trustee or any
authenticating agent. At the option of a Holder, Certificates may be exchanged
for other Certificates of the same class in authorized denominations of a like
aggregate principal amount upon surrender of the Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.10.
(c) All Certificates issued upon any registration of transfer or exchange
of Certificates shall be the valid obligations of the Trust, entitled to the
same benefits under this Agreement, as the Certificates surrendered upon such
registration of transfer or exchange.
(d) Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
Holder or his attorney duly authorized in writing. Each Certificate surrendered
for registration of transfer or exchange shall be canceled and subsequently
disposed of by the Trustee in accordance with its customary practice.
(e) No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
(f) Except as provided in paragraph (g) and (h) below, the Book-Entry
Certificates shall at all times remain registered in the name of the Depository
or its nominee and at all times: (i) registration of the Book-Entry
Certificates may not be transferred by the Trustee except to a successor
depository designated pursuant to paragraph (g) below; (ii) the Depository shall
maintain book-entry records with respect to the Certificate Owners and with
respect to ownership and transfers of such Senior Certificates; (iii) ownership
and transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners for purposes of exercising the rights
of Holders under this Agreement (and requests and directions for and votes of
such representatives shall not be deemed to be inconsistent if they are made
with respect to different Certificate Owners); and (vi) the Trustee may rely and
shall be fully protected in relying upon information furnished by the Depository
with respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and persons shown on
the books of such indirect participating firms as direct or indirect Certificate
Owners.
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(g) If the Depository advises the Trustee in writing that the Depository is
no longer willing or able properly to discharge its duties as Depository, the
Trustee shall so notify the Depository and demand the return of all Senior
Certificates held by the Depository. The Certificate Registrar shall thereupon
register the transfer of such Senior Certificates to a successor Depository
named by the Depositor and acceptable to the Depositor and the Trustee.
(h) If,
(1) (i) the Administrator, the Depositor or the Depository advises the
Trustee in writing that the Depository is no longer willing or able properly
to discharge its responsibilities as Depository and (ii) the Administrator
or the Depositor is unable to locate a qualified successor, or
(2) the Depositor at its sole option advises the Trustee in writing
that it elects to terminate the book-entry system through the Depository, or
(3) an Event of Default shall have occurred and be continuing, and
Certificate Owners having a beneficial interest in the Senior Certificates
at least equal to a Certificate Majority advise the Trustee through the
Depository that the continuation of a book-entry system is no longer in the
best interests of the Certificate Owners,
the Trustee shall notify all Certificate Owners, through the Depository, of the
occurrence of any such event and of the availability of definitive, fully
registered Senior Certificates (the "Definitive Certificates") to Certificate
Owners requesting the same. Upon surrender to the Trustee of the Senior
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration or transfer, the Trustee shall issue the
Definitive Certificates in accordance with such instructions. Neither the
Certificate Registrar nor the Trustee shall be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Finance I shall pay all expenses incurred in
connection with the notification of Certificate Owners and the issuance of
Definitive Certificates hereunder. Upon the issuance of Definitive Certificates
the Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
(i) On or prior to the Closing Date, there shall be delivered by or on
behalf of the Trust to the Depository one typewritten Senior Certificate
registered in the name of the Depository's nominee, Cede & Co., evidencing
$92,400,000 of original principal amount. Such Senior Certificate registered in
the name of the Depository's nominee shall bear the following legend:
"Unless this Senior Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Trustee or its agent for registration of
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transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or in such other name as requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein."
(j) On the Closing Date, Finance I and Finance II shall receive for
adequate consideration and thereafter shall have beneficial and record ownership
of the Subordinated Certificates, which Subordinated Certificates shall be
issued in definitive form.
(k) The Certificates may not be acquired by a "disqualified organization"
(as defined below). By acceptance of a Certificate, the Holder thereof shall be
deemed to have represented and warranted that it is not a disqualified
organization. Any attempted or purported transfer in violation of these
transfer restrictions will be null and void and will vest no rights in any
purported transferee. A "disqualified organization" means (i) the United
States, any State or political subdivision thereof, any foreign government, any
international organization, or any agency or instrumentality of the foregoing
(not including instrumentalities described in Section 168(h)(2)(D) of the Code
or the Federal Home Loan Mortgage Corporation), (ii) any organization (other
than a cooperative described in Section 521 of the Code) that is exempt from
federal income tax, unless it is subject to the tax imposed by Section 511 of
the Code or (iii) any organization described in Section 1381(a)(2)(C) of the
Code.
Section 3.7. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate is surrendered to the Certificate Registrar, or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and (b) there is delivered to the Certificate
Registrar and the Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the Certificate
Registrar or the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Trustee on behalf of the Trust shall execute, authenticate and
deliver (or the Authentication Agent shall authenticate and deliver), in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and portion of the aggregate
principal balance of the Certificates. In connection with the issuance of any
new Certificate under this Section 3.7, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee and the Certificate Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section 3.7 shall constitute conclusive
evidence of ownership, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
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Section 3.8. Persons Deemed Certificate Owners. Prior to due presentation
of a Certificate for registration of transfer, the Trustee or the Certificate
Registrar and any agent of the Trustee or the Certificate Registrar may treat
the person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 5.2
and for all other purposes whatsoever, and neither the Trustee nor the
Certificate Registrar nor any agent of the Trustee nor the Certificate Registrar
shall be affected by any notice to the contrary.
Section 3.9. Access to List of Certificateholders' Names and Addresses.
The Trustee shall furnish or cause to be furnished to the Depositor within 15
days after receipt by the Trustee of a written request therefor from such party,
a list, in such form as such party may reasonably require, of the names and
addresses of the Senior Certificateholders as of the most recent Record Date for
payment of distributions to Senior Certificateholders. If Definitive
Certificates have been issued and three or more Senior Certificateholders, or
one or more Senior Certificateholders holding not less than 25% of the aggregate
principal balance of the Senior Certificates (hereinafter referred to as
"Applicants"), apply in writing to the Trustee, and such application states that
the Applicants desire to communicate with other Senior Certificateholders with
respect to their rights under this Agreement or under the Senior Certificates
and is accompanied by a copy of the communication that such Applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, afford such Applicants access, during normal business
hours, to the current list of Senior Certificateholders. Every Senior
Certificateholder, by receiving and holding a Senior Certificate, agrees that
neither the Depositor nor the Trustee, nor any agent thereof, shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Senior Certificateholders under this Agreement, regardless
of the source from which such information was derived.
Section 3.10. Maintenance of Office or Agency. The Trustee shall maintain
in Wilmington, Delaware or Minneapolis or St. Paul, Minnesota an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustee in respect of the Certificates and the Related Documents may be
served. The Trustee initially designates First Trust National Association, 180
East Fifth Street, St. Paul, Minnesota 55101, as its principal agency for such
purposes. The Trustee shall give prompt written notice to the Depositor and to
the Certificateholders of any change in the location of the Certificate Register
or any such office of agency.
Section 3.11. Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Account pursuant to
Section 5.2 and shall report the amounts of such distributions to the Trustee.
Any Paying Agent shall have the revocable power to withdraw funds from the
Certificate Account for the purpose of making the distributions referred to
above. The Trustee
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may revoke such power and remove the Paying Agent if the Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent
shall initially be First Trust National Association, with an office at 180 East
5th Street, St. Paul, Minnesota 55101, Attention: Corporate Trust Operations,
Second Floor. First Trust National Association shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Trustee. In the event that
First Trust National Association shall no longer be the Paying Agent, the
Trustee shall appoint a successor to act as Paying Agent (which shall be a bank
or trust company). The Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Trustee to execute and deliver to the
Trustee an instrument in which such successor Paying Agent or additional Paying
Agent shall agree with the Trustee that as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Trustee and upon removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to the Trustee. The provisions of Sections 7.1,
7.3, 7.4 and 8.1 shall apply to the Trustee also in its role as Paying Agent,
for so long as the Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in
this Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
ARTICLE IV
ACTIONS BY CERTIFICATEHOLDERS
Section 4.1. Restriction on Power of Certificate Owners. No Certificate
Owner shall have any right to vote or in any manner otherwise control the
operation and management of the Trust except as expressly provided in this
Agreement.
Section 4.2. Restrictions on Certificate Owners' Power. No Certificate
Owner shall have any right by virtue or by availing itself of any provisions of
this Agreement to institute any suit, action, or proceeding in equity or at law
upon or under or with respect to this Agreement or any Related Document, unless
a Certificate Owner previously shall have given to the Trustee a written notice
of default and of the continuance thereof, as provided in this Agreement and
unless also Certificate Owners beneficially owning not less than 25% of the
aggregate principal balance of the Senior Certificates shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee under this Agreement and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 30 days
after its receipt of such notice, request, and offer of indemnity, shall have
neglected or refused to institute any such action, suit, or proceeding and
during such 30-day period, no request or waiver
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inconsistent with such written request has been given to the Trustee pursuant to
and in compliance with this Section or Section 6.3; it being understood and
intended, and being expressly covenanted by each Certificate Owner with every
other Certificate Owner and the Trustee, that no one or more Certificate Owners
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb, or prejudice
the rights of any other Certificate Owner, or to obtain or seek to obtain
priority over or preference to any other Certificate Owner, or to enforce any
right under this Agreement, except in the manner provided in this Agreement and
for the equal, ratable, and common benefit of all Certificate Owners. For the
protection and enforcement of the provisions of this Section 4.2, each and every
other Certificate Owner and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1. Certificate Account.
(a) The Trustee, for the benefit of the Certificateholders, shall establish
and maintain the Certificate Account in the name of the Trust for the benefit of
the Certificateholders. The Certificate Account shall be an Eligible Account
and initially shall be a segregated Certificate Account established by the
Administrator at First Bank National Association; provided, however, that the
Trustee and the Administrator hereby agree to establish the Certificate Account
at the same Eligible Institution where the certificate accounts with respect to
the Securitized Pools are held; and provided, further, if the certificate
accounts with respect to the Securitized Pools are transferred to another
Eligible Institution, the Trustee and the Administrator hereby agree to transfer
the Certificate Account to the same Eligible Institution.
(b) The Trustee shall possess all right, title and interest in all funds on
deposit from time to time in the Certificate Account and in all proceeds
thereof. If, at any time, the Certificate Account ceases to be an Eligible
Account, the Trustee shall within five Business Days (or such longer period, not
to exceed 30 calendar days, as to which the Rating Agency may consent) establish
a new Certificate Account as an Eligible Account and shall transfer any cash
and/or any investments to such new Certificate Account.
(c) All amounts held in the Certificate Account shall, to the extent
permitted by applicable laws, rules and regulations, be invested, by the
Trustee, in Eligible Investments that mature not later than one Business Day
prior to the Distribution Date to which such amounts relate. Investments in
Eligible Investments shall be made in the name of the Trust, and such
investments shall not be sold or disposed of prior to their maturity. Any
investment of funds in the
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Certificate Account shall be made in Eligible Investments held by a financial
institution with respect to which (a) such institution has noted the Trustee's
interest therein by book entry or otherwise and (b) a confirmation of the
Trustee's interest has been sent to the Trustee by such institution, provided
that such Eligible Investments are (i) specific certificated securities, and
(ii) either (A) in the possession of such institution or (B) in the possession
of a clearing corporation in New York or Delaware, registered in the name of
such clearing corporation, not endorsed for collection or surrender or any other
purpose not involving transfer, not containing any evidence of a right or
interest inconsistent with the Trustee's security interest therein, and held by
such clearing corporation in an account of such institution. Subject to the
other provisions hereof, the Trustee shall have sole control over each such
investment and the income thereon, and any certificate or other instrument
evidencing any such investment, if any, shall be delivered directly to the
Trustee or its agent, together with each document of transfer, if any, necessary
to transfer title to such investment to the Trustee in a manner which complies
with this Section 5.1. All interest, dividends, gains upon sale and other
income from, or earnings on investment of funds in the Certificate Account shall
be distributed on the next Distribution Date pursuant to Section 5.2. The
Subordinated Certificateholders shall deposit in the Certificate Account an
amount equal to any net loss on such investments immediately as realized.
Section 5.2. Distribution of Funds in Certificate Account.
(a) On each Distribution Date, other than the Distribution Date occurring
in August 1994, the Trustee will, based on the information contained in the
Monthly Report delivered on the related Determination Date pursuant to Section
1.01 of the Servicing Agreement, cause to be distributed all funds in the
Certificate Account to Certificateholders, to the extent of the Amount
Available, in the order of priority set forth below. On the Distribution Date
occurring in August 1994, the Trustee will cause to be distributed to the
Subordinated Certificateholders, from the Amount Available after distribution of
the Senior Certificateholders' Interest Distributable Amount, $________ [42
days' accrued interest], representing the amount of interest that would have
accrued on the original principal amount of the Certificates at the Interest
Rate from June 15, 1994 to the Closing Date. After the Distribution Date
occurring in August 1994, no amounts deposited in the Certificate Account shall
be allocable or paid to the Subordinated Certificateholders until the Senior
Certificates have been paid in full.
(i) first, from the Amount Available, to the Senior Certificateholders,
on a pro rata basis, an amount equal to the Senior Certificateholders'
Interest Distributable Amount; provided, however, that if the Amount
Available is insufficient to pay the full amount of the Senior
Certificateholders' Interest Distributable Amount, any amounts so
distributed on such Distribution Date will be deemed applied first to any
Senior Certificateholders' Interest Shortfall and accrued interest thereon
from prior
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Distribution Dates (and applied to the earliest such Distribution Date
first), and next to the interest accrued for such Distribution Date;
(ii) second, to the Trustee, an amount equal to the expenses and fees
of the Trustee for such period (to the extent not paid by Green Tree or the
Subordinated Certificateholders) pursuant to Section 8.1;
(iii) third, to the Administrator, an amount equal to the expenses and
fees of the Administrator for such period (to the extent not paid by Green
Tree or the Subordinated Certificateholders) pursuant to Section 8.1;
(iv) fourth, to the Senior Certificateholders, on a pro rata basis, an
amount equal to the Senior Certificateholders' Principal Distributable
Amount; and
(v) fifth, following payment in full of the Senior Certificates, to the
Subordinated Certificateholders according to their respective Percentage
Interests.
(b) On the Distribution Date following the date on which the Subordinated
Certificateholders have exercised their option to cause the Trust to prepay the
Senior Certificates pursuant to Section 5.6 hereof, the Trustee will distribute
all amounts on deposit in the Certificate Account as follows, taking into
account any concurrent distribution made pursuant to Section 5.2(a):
(i) first, to the Senior Certificateholders, on a pro rata basis, an
amount equal to the Senior Certificateholders' Interest Distributable
Amount;
(ii) second, to the Trustee, an amount equal to the expenses and fees
of the Trustee for such period (to the extent not paid by Green Tree or the
Subordinated Certificateholders) pursuant to Section 8.1;
(iii) third, to the Administrator, an amount equal to the expenses and
fees of the Administrator for such period (to the extent not paid by Green
Tree or the Subordinated Certificateholders) pursuant to Section 8.1;
(iv) fourth, to the Senior Certificateholders, on a pro rata basis, the
outstanding principal balance on the Senior Certificates; and
(v) fifth, to the Subordinated Certificateholders, according to their
respective Percentage Interests.
(c) On the Distribution Date on which Insolvency Proceeds (as defined
herein) are deposited in the Certificate Account pursuant to Section 10.2 (or on
the Distribution Date immediately following such deposit if such proceeds are
not deposited in the Certificate Account on a Distribution Date), the Trustee
will
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distribute the Insolvency Proceeds so deposited in the Certificate Account,
taking into account any concurrent distribution made pursuant to Section 5.2(a)
or 5.2(b):
(i) first, to the Senior Certificateholders, on a pro rata basis, an
amount equal to the Senior Certificateholders' Interest Distributable
Amount;
(ii) second, to the Trustee, an amount equal to the expenses and fees
of the Trustee for such period (to the extent not paid by Green Tree or the
Subordinated Certificateholders pursuant to Section 8.1;
(iii) third, to the Administrator, an amount equal to the expenses and
fees of the Administrator for such period (to the extent not paid by Green
Tree or the Subordinated Certificateholders) pursuant to Section 8.1;
(iv) fourth, to the Senior Certificateholders, on a pro rata basis, the
outstanding principal balance on the Senior Certificates; and
(v) fifth, to the Subordinated Certificateholders, according to their
Percentage Interests.
(d) On each Distribution Date, the Trustee shall forward or cause to be
forwarded by mail to each holder of a Senior Certificate and (if Green Tree is
not the Servicer) Green Tree, the Monthly Report prepared by the Servicer
pursuant to the Servicing Agreement, attached hereto as Exhibit H.
The Trustee and the Servicer shall inform any Certificateholder, Lehman
Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated inquiring
by telephone of the information contained in the most recent Monthly Report.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Senior Certificate a statement
containing the information with respect to interest accrued and principal paid
on such Holder's Certificates during such calendar year. Such obligation of the
Trustee shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in force.
(e) Copies of all reports provided to the Trustee and the Administrator for
the Certificateholders shall also be provided to the Rating Agency and to the
Subordinated Certificateholders.
(f) In the event that any withholding tax is imposed on the Trust's payment
(or allocations of income) to a Certificate Owner, such tax shall reduce the
amount otherwise distributable to the Certificate Owner in accordance with this
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Section. The Trustee is hereby authorized and directed to retain from amounts
otherwise distributable to the Certificate Owners sufficient funds for the
payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed
with respect to a Certificate Owner shall be treated as cash distributed to such
Certificate Owner at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Certificate Owner), the Trustee may in its sole discretion withhold such amounts
in accordance with this paragraph (f). In the event that a Certificate Owner
wishes to apply for a refund of any such withholding tax, the Trustee shall
reasonably cooperate with such Certificate Owner in making such claim so long as
such Certificate Owner agrees to reimburse the Trustee for any out-of-pocket
expenses incurred.
Section 5.3. Method of Payment. Distributions required to be made to
Certificateholders on any Distribution Date shall be made to each
Certificateholder of record on the preceding Record Date either by wire
transfer, in immediately available funds, to the account of such Holder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Distribution Date
and such Holder's Certificates in the aggregate evidence a denomination of not
less than $1,000,000 (or if such Certificateholder is a Depositor or an
Affiliate thereof), or, if not, by check mailed to such Certificateholder at the
address of such holder appearing in the Certificate Register.
Section 5.4. No Segregation of Monies; No Interest. Subject to Sections
5.1 and 5.2, monies received by the Trustee hereunder need not be segregated in
any manner except to the extent required by law and may be deposited under such
general conditions as may be prescribed by law, and the Trustee shall not be
liable for any interest thereon.
Section 5.5. Accounting; Reports; Tax Returns.
(a) The Administrator has agreed pursuant to the Administration Agreement
that the Administrator shall (i) maintain (or cause to be maintained) the books
of the Trust on a calendar year basis on the accrual method of accounting, (ii)
deliver to each Certificateholder, as may be required by the Code and applicable
Treasury Regulations, such information as may be required, including Schedule K-
1 with respect to each Subordinated Certificateholder, or Form 1099 with respect
to each Senior Certificateholder, to enable each Certificateholder to prepare
its federal and state income tax returns, (iii) file or cause to be filed such
tax returns relating to the Trust (including a partnership information return,
Form 1065), and direct the Trustee to make such elections as may from time to
time be required or appropriate under any applicable state or federal statute or
rule or regulation thereunder so as to
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maintain the Trust's characterization as a partnership for federal income tax
purposes, (iv) collect or cause to be collected any withholding tax as described
in and in accordance with Section 5.2(f) with respect to income or distributions
to Certificate Owners and (v) file or cause to be filed all documents required
to be filed by the Trust with the Commission and otherwise take or cause to be
taken all such actions as are notified by the Servicer to the Administrator as
being required for the Trust's compliance with all applicable provisions of
state and federal securities laws.
(b) The Trustee shall make all elections pursuant to this Section 5.5 as
directed in writing by the Subordinated Certificateholders. Finance I shall be
the "tax matters partner" of the Trust pursuant to the Code.
(c) The Trustee shall sign on behalf of the Trust the tax returns of the
Trust presented to it in final execution form by the Administrator, unless
applicable law requires a Certificateholder to sign such documents, in which
case such documents shall be signed by Finance I. In signing any tax return of
the Trust, the Trustee shall rely entirely upon, and shall have no liability
for, information or calculations provided by Finance I.
Section 5.6. Prepayment of Senior Certificates; Final Payment on Senior
Certificates.
(a) On any Distribution Date when the aggregate outstanding principal
amount of the Senior Certificates is less than $9,240,000, the Subordinated
Certificateholders may cause the Trust to prepay the Senior Certificates in
whole and not in part, by depositing cash in the Certificate Account, no later
than one Business Day prior to such Distribution Date, in an amount equal to the
aggregate outstanding principal amount of the Senior Certificates plus all
accrued and unpaid interest thereon, plus all accrued and unpaid expenses of the
Trust.
(b) The Subordinated Certificateholders must notify the Trustee and the
Administrator at least 30 days but no more than 60 days prior to such redemption
date of their intention to cause redemption of the Senior Certificates.
(c) Within five Business Days of receipt of notice of final payment on the
Senior Certificates from the Administrator (whether pursuant to the exercise by
the Subordinated Certificateholders of their option contained in this Section
5.6, or pursuant to payment of the Senior Certificateholders' Principal
Distributable Amount pursuant to Section 5.2), the Trustee shall mail written
notice to the Senior Certificateholders specifying (i) the Distribution Date
upon which final payment of the Senior Certificates shall be made upon
presentation and surrender of the Senior Certificates at the office of the
Paying Agent therein specified, (ii) the amount of any such final payment, and
(iii) that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Senior Certificates at the office of the Paying Agent therein specified. The
Trustee shall give such notice to the Certificate Registrar at the time
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such notice is given to Senior Certificateholders. Upon presentation and
surrender of the Senior Certificates, the Paying Agent shall cause to be
distributed to Senior Certificateholders amounts distributable on such
Distribution Date pursuant to Section 5.2.
(d) In the event that all of the Senior Certificateholders shall not
surrender their Senior Certificates for cancellation within six months after the
date specified in the above-mentioned written notice, the Trustee shall give a
second written notice to the remaining Senior Certificateholders to surrender
their Senior Certificates for cancellation and receive the final distribution
with respect thereto. If within one year after the second notice all the Senior
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Senior Certificateholders concerning surrender of their
Senior Certificates, and the cost thereof shall be paid out of the funds and
other assets that remain subject to this Agreement. Any funds which are payable
to Senior Certificateholders remaining in the Trust after exhaustion of such
remedies shall be distributed by the Trustee to The United Way (but only upon
termination of this Agreement) and the Senior Certificateholders, by acceptance
of their Senior Certificates, hereby waive any rights with respect to such
funds.
ARTICLE VI
AUTHORITY AND DUTIES OF TRUSTEE
Section 6.1. General Authority. The Trustee is authorized and directed to
execute and deliver the Related Documents to which the Trust is to be a party
and each certificate or other document attached as an exhibit to or contemplated
by the Related Documents to which the Trust is to be a party and any amendment
thereto. In addition to the foregoing, the Trustee is authorized, but shall not
be obligated, to take all actions required of the Trust pursuant to the Related
Documents. The Trustee is further authorized to enter into the Administration
Agreement, to appoint, with the consent of Finance I and Finance II, a successor
Administrator and to take from time to time such action as Finance I and Finance
II recommend with respect to the Related Documents so long as such actions are
consistent with the terms of the Related Documents.
Section 6.2. General Duties. It shall be the duty of the Trustee to
discharge (or cause to be discharged through the Administrator or such agents as
shall be appointed with the consent of Finance I and Finance II) all of its
responsibilities pursuant to the terms of this Agreement and to administer the
Trust in the interest of the Certificateholders, subject to the Related
Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Trustee shall be deemed to have discharged
its duties and responsibilities hereunder to the extent the Administrator has
agreed in the Administration Agreement to perform any act or to discharge any
duty of the Trustee hereunder or under any Related Document, and the Trustee
shall not be liable for the default or
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failure of the Administrator to carry out its obligations under the
Administration Agreement. No implied covenants or obligations shall be read
into this Agreement against the Trustee.
Section 6.3. Action upon Instruction.
(a) Subject to Article IV, the Subordinated Certificateholders shall have
the exclusive right to direct the actions of the Trustee in the management of
the Trust, so long as such instructions are not inconsistent with the express
terms set forth herein or in any Related Document.
(b) The Trustee shall not be required to take any action hereunder or under
any Related Document if the Trustee shall have reasonably determined, or shall
have been advised by counsel, that such action is contrary to the terms hereof
or of any Related Document or is otherwise contrary to law.
(c) Whenever the Trustee is unable to decide between alternative courses of
action permitted or required by the terms of this Agreement or any Related
Document, the Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Subordinated Certificateholders
requesting instruction as to the course of action to be adopted, and to the
extent the Trustee acts in good faith in accordance with any written instruction
received from the Subordinated Certificateholders, the Trustee shall not be
liable on account of such action to any Person. If the Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement or the
Related Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
(d) In the event that the Trustee is unsure as to the application of any
provision of this Agreement or any Related Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Trustee or is silent or is incomplete as to the course of
action that the Trustee is required to take with respect to a particular set of
facts, the Trustee may give notice (in such form as shall be appropriate under
the circumstances) to the Subordinated Certificateholders requesting instruction
and, to the extent that the Trustee acts or refrains from acting in good faith
in accordance with any such instruction received, the Trustee shall not be
liable, on account of such action or inaction, to any Person. If the Trustee
shall not have received appropriate instruction within 10 days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action, not inconsistent with this
Agreement or the Related Documents, as it
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shall deem to be in the best interests of the Certificateholders, and shall have
no liability to any Person for such action or inaction.
Section 6.4. No Duties Except as Specified in this Agreement or in
Instructions. The Trustee shall not have any duty or obligation to manage, make
any payment with respect to, register, record, sell, dispose of, or otherwise
deal with the Trust Property, or to otherwise take or refrain from taking any
action under, or in connection with, any document contemplated hereby to which
the Trustee is a party, except as expressly provided by the terms of this
Agreement (including as provided in Section 6.2) or in any written instruction
received by the Trustee pursuant to Section 6.3; and no implied duties or
obligations shall be read into this Agreement or any Related Document against
the Trustee.
Section 6.5. No Action Except under Specified Documents or Instructions.
The Trustee shall not manage, control, use, sell, dispose of or otherwise deal
with any part of the Trust Property except (i) in accordance with the powers
granted to and the authority conferred upon the Trustee pursuant to this
Agreement, (ii) in accordance with the Related Documents and (iii) in accordance
with any document or instruction delivered to the Trustee pursuant to Section
6.3.
Section 6.6. Restrictions. The Trustee shall not take any action (a) that
is inconsistent with the purposes of the Trust set forth in Section 2.3 or (b)
that, to the actual knowledge of the Trustee, would result in the Trust's
becoming taxable as a corporation for Federal income tax purposes. The
Certificateholders shall not direct the Trustee to take action that would
violate the provisions of this Section.
Section 6.7 Administration Agreement.
(a) The Administrator is authorized to execute on behalf of the Trust all
documents, reports, filings, instruments, certificates and opinions as it shall
be the duty of the Trust to prepare, file or deliver pursuant to the Related
Documents. Upon written request, the Trustee shall execute and deliver to the
Administrator a power of attorney appointing the Administrator its agent and
attorney-in-fact to execute all such documents, reports, filings, instruments,
certificates and opinions.
(b) In carrying out any of its duties and responsibilities under this
Agreement or the Administration Agreement, the Administrator shall be subject to
and afforded the benefits of all of the provisions of this Agreement and other
Related Documents as they may relate to the Trustee, specifically including
every provision thereof relating to the conduct of, affecting the liability of,
or affording protection to, the Trustee. In addition, Finance I and Finance II
in executing this Agreement, and the Holders of the Senior Certificates and the
Subordinated Certificates by receiving and holding a Certificate, agree to be
bound by the limitations of the Administrator's liability as set out in the
Administration Agreement.
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(c) If the Administrator shall resign or be removed pursuant to the terms
of the Administration Agreement, the Trustee may, and is hereby authorized and
empowered to, subject to obtaining the prior written consent of Finance I and
Finance II, appoint or consent to the appointment of a successor Administrator
pursuant to the Administration Agreement.
(d) If the Administration Agreement is terminated, the Trustee may, and is
hereby authorized and empowered to, subject to obtaining the prior written
consent of Finance I and Finance II, appoint or consent to the appointment of a
Person to perform substantially the same duties as are assigned to the
Administrator in the Administration Agreement pursuant to an agreement
containing substantially the same provisions as are contained in the
Administration Agreement.
(e) The Trustee shall promptly notify each Subordinated Certificateholder
of any default by or misconduct of the Administrator under the Administration
Agreement of which the Trustee has received written notice or of which a
Responsible Officer has actual knowledge.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.1. Acceptance of Trust and Duties. The Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement. The Trustee also agrees
to disburse all moneys actually received by it constituting part of the Trust
Property upon the terms of the Related Documents and this Agreement. The
Trustee shall not be answerable or accountable hereunder or under any Related
Document under any circumstances, except (i) for its own willful misconduct or
gross negligence, (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.3, (iii) for any investments made by the Trustee
with any branch or affiliate thereof in its commercial capacity or (iv) for
taxes, fees or other charges on, based on or measured by, any fees, commissions
or compensation received by the Trustee in connection with any of the
transactions contemplated by this Agreement or any Related Document. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Trustee;
(b) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the instructions of
the Subordinated Certificateholders;
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(c) no provision of this Agreement or any Related Document shall require
the Trustee to expend or risk funds or otherwise incur any financial liability
in the performance of any of its rights or powers hereunder or under any Related
Document if the Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it;
(d) under no circumstances shall the Trustee be liable for indebtedness
evidenced by or arising under any of the Related Documents;
(e) the Trustee shall not be responsible for or in respect of the validity
or sufficiency of this Agreement or for the due execution hereof by the
Depositor or the Subordinated Certificateholders or for the form, character,
genuineness, sufficiency, value or validity of any of the Trust Property or for
or in respect of the validity or sufficiency of the Related Documents, other
than the certificate of authentication on the Certificates, and the Trustee
shall in no event assume or incur any liability, duty, or obligation to Finance
I, Finance II or to any Certificate Owner, other than as expressly provided for
herein and in the Related Documents;
(f) the Trustee shall not be liable for the default or misconduct of the
Administrator, Finance I, Finance II, Green Tree or the Servicer under any of
the Related Documents or otherwise and the Trustee shall have no obligation or
liability to perform the obligations of the Trust under this Agreement or the
Related Documents that are required to be performed by the Administrator under
the Administration Agreement, by Finance I and Finance II under the Transfer
Agreements or by the Servicer under the Servicing Agreement; and
(g) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Agreement, or to institute, conduct or defend any
litigation under this Agreement or otherwise or in relation to this Agreement or
any Related Document, at the request, order or direction of the Subordinated
Certificateholders, unless the Subordinated Certificateholders have offered to
the Trustee security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by the Trustee therein or thereby. The
right of the Trustee to perform any discretionary act enumerated in this
Agreement or in any Related Document shall not be construed as a duty, and the
Trustee shall not be answerable for other than its gross negligence or willful
misconduct in the performance of any such act.
Section 7.2. Furnishing of Documents. The Trustee shall furnish to the
Certificate Owners promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Trustee under
the Related Documents, unless the Certificate Owners have previously received
such items.
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Section 7.3. Representations and Warranties. The Trustee hereby
represents and warrants to the Depositor, Finance I, Finance II and the
Certificate Owners that:
(a) It is a corporation duly organized and validly existing in good
standing under the laws of the State of Delaware. It has all requisite
corporate power and authority and all franchises, grants, authorizations,
consents, orders and approvals from all governmental authorities necessary to
execute, deliver and perform its obligations under this Agreement and each
Related Document to which the Trustee is a party.
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Agreement and each Related Document to which the
Trustee is a party, and this Agreement and each Related Document will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance by it
with any of the terms or provisions hereof will contravene any Federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Trustee or any judgment or order binding on it, or constitute any
default under its charter documents or by-laws or any indenture, mortgage,
contract, agreement or instrument to which it is a party or by which any of its
properties may be bound or result in the creation or imposition of any lien,
charge or encumbrance on the Trust Property resulting from actions by or claims
against the Trustee individually which are unrelated to this Agreement or the
Related Documents.
Section 7.4. Reliance; Advice of Counsel.
(a) The Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Trustee may
accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which
is not specifically prescribed herein, the Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by the
treasurer or other authorized officers of the relevant party, as to such fact or
matter, and such certificate shall constitute full protection to the Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the Related
Documents, the Trustee (i) may act directly or through its agents or attorneys
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pursuant to agreements entered into with any of them, and the Trustee shall not
be liable for the conduct or misconduct of such agents or attorneys if such
agents or attorneys shall have been selected by the Trustee with reasonable
care, and (ii) may consult with counsel, accountants and other skilled persons
to be selected with reasonable care and employed by it. The Trustee shall not
be liable for anything done, suffered or omitted in good faith by it in
accordance with the written opinion or advice of any such counsel, accountants
or other such persons and not contrary to this Agreement or any Related
Document.
Section 7.5. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created Wilmington Trust
Company acts solely as Trustee hereunder and not in its individual capacity and
all Persons having any claim against the Trustee by reason of the transactions
contemplated by this Agreement or any Related Document shall look only to the
Trust Property for payment or satisfaction thereof.
Section 7.6. Trustee Not Liable for Certificates or Related Documents.
The recitals contained herein and in the Certificates (other than the signature
and counter-signature of the Trustee on the Certificates) shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representations as to the validity or
sufficiency of this Agreement, of any Related Document or of the Certificates
(other than the signature and counter-signature of the Trustee on the
Certificates), or of the Guarantee Fee or the Residual Assets or any related
documents with respect to the Guarantee Fee or the Residual Assets and the
Trustee shall in no event assume or incur any liability, duty or obligation to
any person other than as expressly provided for herein. The Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of the Guarantee Fee, the Residual Assets or other
Trust Property or for or with respect to the sufficiency of the Trust Property
or its ability to generate the payments to be distributed to Certificateholders
under this Agreement, including, without limitation: the validity of the
assignment of the Guarantee Fee and the Residual Assets to Finance I and Finance
II or the issuance of the Finance I Note to the Trust and the assignment of the
Residual Assets to the Trust, or of any intervening assignment, or the accuracy
of any such warranty or representation or any action of Finance I or Finance II
taken in the name of the Trustee.
Section 7.7. Trustee May Own Senior Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Senior
Certificates and may deal with the Depositor, Finance I, Finance II and the
Servicer in banking or other transactions with the same rights as it would have
if it were not Trustee.
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ARTICLE VIII
COMPENSATION OF TRUSTEE AND ADMINISTRATION
Section 8.1. Trustee's and Administrator's Fees and Expenses. The Trustee
and the Administrator shall receive as compensation for their services hereunder
such fees as have been separately agreed upon before the date hereof between
Green Tree and the Trustee and between Green Tree and the Administrator,
respectively, and the Trustee and the Administrator shall be entitled to be
reimbursed by Green Tree for their other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Trustee or the
Administrator, as the case may be, may employ in connection with the exercise
and performance of their rights and its duties hereunder, provided, however,
that the Trustee or the Administrator, as the case may be, shall only be
entitled to reimbursement for expenses hereunder to the extent such expenses are
fees of outside counsel engaged by the Trustee or the Administrator, as the case
may be, in respect of the performance of its obligations hereunder. If Green
Tree or the Subordinated Certificateholders shall at any time fail to pay such
fees or fail to reimburse the Trustee or the Administrator, as the case may be,
for such expenses, the Trustee and the Administrator shall be entitled to
payment of such amounts pursuant to subsections (ii) and (iii), respectively, of
Sections 5.2(a), 5.2(b) and 5.2(c).
Section 8.2. Non-recourse Obligations. Notwithstanding anything in this
Agreement or any Related Document, the Trustee agrees in its individual capacity
and in its capacity as Trustee for the Trust that all obligations of the Trust
to the Trustee individually or as Trustee for the Trust shall be recourse to the
Trust Property only and specifically shall not be recourse to the assets of any
Certificate Owner. The Trustee shall cause any Administrator to agree to the
same effect in the Administration Agreement.
ARTICLE IX
DEFAULT
Section 9.1. Events of Default. "Event of Default," whenever used herein,
means any one of the following events:
(a) default in the payment of interest due on any Distribution Date, and
continuance of such default for a period of six months (allocated in accordance
with Section 5.2(a)(i); or
(b) failure to pay the entire unpaid principal amount of the Senior
Certificates on or before the Distribution Date occurring in July 2004.
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Section 9.2. Rights upon an Event of Default.
(a) If an Event of Default shall have occurred and be continuing, the
Trustee or Certificate Owners beneficially owning at least 25% in aggregate
outstanding principal amount of the Senior Certificates (subject to rescission
as described below) may declare by written notice to the Subordinated
Certificateholders (and the Trustee, if declared by the Certificate Owners), the
entire principal amount of the Senior Certificates immediately due and payable,
together with accrued interest thereon. The Subordinated Certificateholders
shall have no right to declare an Event of Default or to make a declaration of
acceleration with respect to the Senior Certificates.
At any time after such a declaration of acceleration with respect to the
Senior Certificates has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee, the holders of a majority in
aggregate principal amount of the Senior Certificates, by written notice to the
Subordinated Certificateholders and the Trustee, may rescind and annul such
declaration and its consequences if
(i) there has been deposited in the Certificate Account, either
pursuant to collections on the Trust Property or from amounts deposited with
the Trustee by the Subordinated Certificateholders, an amount sufficient to
pay
(A) all accrued but unpaid interest on the Senior Certificates, and
(B) all sums paid or advanced by the Trustee and the Administrator
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee and the Administrator and their agents.
(b) If the Senior Certificates have been declared due and payable following
an Event of Default, the Trustee may liquidate all or any portion of the Trust
Property, or may elect to maintain possession of the Trust Property (or any
portion thereof) and continue to apply collections from the Trust Property as if
there had been no declaration of acceleration; provided, however, the Trustee
will be prohibited from selling the Trust Property following an Event of
Default, unless
(i) the proceeds of such sale are sufficient to pay in full the
principal of and the accrued interest on the outstanding Senior Certificates
at the time of such sale and all amounts required to be paid under Section
9.3(i) - (iv); or
(ii) the Trustee determines that the collections on the Trust Property
will not be sufficient on an ongoing basis to make all payments of interest
on the Senior Certificates as such payments become due and to pay the
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outstanding principal amount of the Senior Certificates at maturity, and the
Trustee obtains the consent of Certificate Owners beneficially owning
66 2/3% of the aggregate outstanding amount of the Senior Certificates.
Section 9.3. Distributions. If the Trustee collects any money or property
pursuant to this Article IX, the Trustee shall pay out the money or property in
the following order:
(i) first, amounts due and owing and required to be distributed to the
Trustee pursuant to this Agreement;
(ii) second, amounts due and owing and required to be distributed to
the Administrator pursuant to this Agreement and the Administration
Agreement;
(iii) third, to the Senior Certificateholders, on a pro rata basis, an
amount equal to the Senior Certificateholders' Interest Distributable
Amount;
(iv) fourth, to the Senior Certificateholders, on a pro rata basis, the
unpaid principal amount of the Senior Certificates; and
(v) fifth, any remaining money or property shall be distributed to the
Subordinated Certificateholders, according to their Percentage Interests.
The Trustee may fix a record date and payment date for any payment to the
Certificateholders pursuant to this Article IX. At least 15 days prior to such
record date, the Trustee shall mail to each Certificateholder a notice that
states the record date, the payment date and the amount to be paid.
ARTICLE X
TERMINATION
Section 10.1. Termination of the Trust.
(a) The respective obligations and responsibilities of the Subordinated
Certificateholders and the Trustee created by this Agreement and the Trust
created by this Agreement shall terminate upon the latest of (i) the
Distribution Date immediately following the maturity of the Finance I Note, the
retirement of the last Residual Asset or other liquidation of the last item of
Trust Property or (ii) the payment to the Certificateholders of all amounts
required to be paid to them pursuant to this Agreement, or (iii) following the
payment in full of all principal and accrued interest on the Senior
Certificates, by vote of all the Subordinated Certificateholders, or (iv) at the
time provided in Section 10.2. In any case, there shall be delivered to the
Trustee and the Rating Agency an opinion of counsel that all applicable
preference periods under federal, state and local
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bankruptcy, insolvency and similar laws have expired with respect to the
payments pursuant to clause (ii); provided, however, that in no event shall the
trust created by this Agreement continue beyond the expiration of 21 years from
the death of the last survivor of the descendants living on the date of this
Agreement of Rose Kennedy of the Commonwealth of Massachusetts. The
Administrator shall promptly notify the Trustee of any prospective termination
pursuant to this Section 10.1. Except as provided in Section 10.2, the
bankruptcy, liquidation, dissolution, termination, resignation, expulsion,
withdrawal, death or incapacity of any Certificateholder or Certificate Owner
shall not (x) operate to terminate this Agreement or the Trust, nor (y) entitle
such Certificateholder's or Certificate Owner's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Trust Property nor
(z) otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Except as provided in Section 10.1(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Upon the winding up of the Trust and its termination, the Trustee shall
cause the Certificate of Trust to be canceled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810 of the Business Trust Statute.
Section 10.2. Dissolution Events with respect to the Subordinated
Certificateholders. In the event that a Dissolution Event shall occur with
respect to one but not both Subordinated Certificateholders, the remaining
Subordinated Certificateholder shall, within 90 days of such Dissolution Event,
(i) select a successor Subordinated Certificateholder (a "Successor Subordinated
Certificateholder") (that shall have a net worth at least equal to the Minimum
Net Worth and shall acquire the existing assets and liabilities of the
Subordinated Certificateholder that has suffered the Dissolution Event and
succeed to such Subordinated Certificateholder's rights and obligations
hereunder), and (ii) deliver to the Trustee an opinion of counsel to the effect
that the Trust will not be an association (or publicly traded partnership)
taxable as a corporation for federal income tax purposes. In the event that (i)
the remaining Subordinated Certificateholder is unable to locate a Successor
Subordinated Certificateholder or to obtain such an opinion or (ii) a
Dissolution Event occurs with respect to both Subordinated Certificateholders,
the Trust will terminate. Promptly after the occurrence of either of the events
referred to in clause (i) or clause (ii) of the preceding sentence (each a
"Liquidation Event"), (i) each Subordinated Certificateholder shall give the
Trustee written notice of the occurrence of such Liquidation Event, (ii) the
Trustee shall, upon the receipt of such written notice, give prompt written
notice to the Certificateholders of the occurrence of such Liquidation Event;
provided, however, that any failure to give a notice required by this sentence
shall not prevent or delay, in any manner, a termination of the Trust pursuant
to the second sentence of this Section 10.2. Upon a termination pursuant to
this Section, the Trustee shall sell the assets of the Trust (other than the
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Certificate Account) at one or more private or public sales conducted in any
manner permitted by law. The proceeds of such a sale of the assets of the Trust
(the "Insolvency Proceeds") shall be distributed as provided in Section 5.2(c).
ARTICLE XI
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
Section 11.1. Eligibility Requirements for Trustee. The Trustee shall at
all times be a corporation (i) satisfying the provisions of Section 3807(a) of
the Business Trust Statute; (ii) authorized to exercise corporate trust powers;
(iii) having a combined capital and surplus of at least $50,000,000 and subject
to supervision or examination by Federal or State authorities; (iv) having (or
having a parent which has) a rating of at least BBB- by Fitch (if rated by
Fitch), or shall otherwise be satisfactory to Fitch. If such corporation shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 11.2.
Section 11.2. Resignation or Removal of Trustee. The Trustee may at any
time resign and be discharged from the trusts hereby created by giving written
notice thereof to the Subordinated Certificateholders at least 30 days before
the date specified in such instrument. Upon receiving such notice of
resignation, the Subordinated Certificateholders shall promptly appoint a
successor Trustee meeting the qualifications set forth in Section 11.1 by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee. If no
successor Trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 11.1 and shall fail to resign after written request
therefor by the Subordinated Certificateholders or if at any time the Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Subordinated Certificateholders may remove the Trustee. If the Subordinated
Certificateholders shall remove the Trustee under the authority of the
immediately preceding sentence, the Subordinated Certificateholders shall
promptly appoint a successor Trustee meeting the qualification requirements of
Section 11.1 by written instrument, in triplicate, one
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copy of which instrument shall be delivered to the outgoing Trustee so removed,
one copy to the Servicer and one copy to the successor Trustee upon any such
removal, the Subordinated Certificateholders shall pay all fees owed to the
outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Trustee pursuant to
Section 11.3. The Subordinated Certificateholders shall provide notice of such
resignation or removal of the Trustee to the Rating Agency.
Section 11.3. Successor Trustee. Any successor Trustee appointed pursuant
to Section 11.2 shall execute, acknowledge and deliver to the Subordinated
Certificateholders and to its predecessor Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties, and obligations of its predecessor under this
Agreement, with like effect as if originally named as Trustee. The predecessor
Trustee shall deliver to the successor Trustee all documents and statements and
monies held by it under this Agreement; and the Subordinated Certificateholders
and the predecessor Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and certainly vesting
and confirming in the successor Trustee all such rights, powers, duties, and
obligations.
No successor Trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor Trustee shall be eligible
pursuant to Section 11.1.
Upon acceptance of appointment by a successor Trustee pursuant to this
Section, Finance I shall mail notice of the successor of such Trustee to all
Certificateholders and the Rating Agency. If Finance I shall fail to mail such
notice within 10 days after acceptance of appointment by the successor Trustee,
the successor Trustee shall cause such notice to be mailed at the expense of
Finance I.
Section 11.4. Merger or Consolidation of Trustee. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be eligible pursuant to Section 11.1, without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided further that
the Trustee shall mail notice of such merger or consolidation to the Rating
Agency.
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Section 11.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Property may at the time be located, the Administrator and the
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee and Finance I
to act as co-trustee, jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Property, and to vest in such Person,
in such capacity, such title to the Trust, or any part thereof, and, subject to
the other provisions of this Section, such powers, duties, obligations, rights
and trusts as the Administrator and the Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, the Trustee,
subject to the approval of Finance I, shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 10.1 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 11.1, except that notice of such
appointment shall be given to the Rating Agency.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Trustee shall be conferred upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to be
performed, the Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties, and obligations
(including the holding of title to the Trust Property or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement; and
(iii) the Administrator and the Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment,
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either jointly with the Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the liability
of, or affording protection to, the Trustee. Each such instrument shall be
filed with the Trustee and a copy thereof given to the Administrator and Finance
I.
Any separate trustee or co-trustee may at any time appoint the Trustee, its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1. Amendment.
(a) This Agreement may be amended by the Subordinated Certificateholders
and the Trustee, but without the consent of any of the Senior
Certificateholders, (i) to cure any ambiguity, or (ii) to correct, supplement or
modify any provisions in this Agreement; provided, however, that such action
shall not, as evidenced by an opinion of counsel, adversely affect in any
material respect the interests of any Senior Certificateholder.
(b) This Agreement may also be amended from time to time by the
Subordinated Certificateholders and the Trustee with the consent of a
Certificate Majority of the Senior Certificates (which consent of any Holder of
a Certificate given pursuant to this Section or pursuant to any other provision
of this Agreement shall be conclusive and binding on such Holder and on all
future Holders of such Certificate and of any Certificate issued upon the
transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made upon the Certificate) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement, or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (a) increase or
reduce in any manner the amount of, or accelerate or delay the timing of
distributions that shall be required to be made on any Certificate or the
Interest Rate or (b) reduce the aforesaid percentage required to consent to any
such amendment or any waiver hereunder, without the consent of the Holders of
all Certificates then outstanding.
(c) Prior to the execution of any such amendment or consent, the
Subordinated Certificateholders shall furnish written notification of the
substance of such amendment or consent to the Rating Agency.
-43-
<PAGE>
(d) Promptly after the execution of any such amendment or consent, the
Trustee shall furnish written notification of the substance of such amendment or
consent to each Certificateholder unless such parties have previously received
such notification.
(e) It shall not be necessary for the consent of Certificateholders
pursuant to Section 12.1(b) to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents (and any other
consents of Certificateholders provided for in this Agreement) and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe, including
the establishment of record dates.
(f) Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an opinion of counsel stating that
the execution of such amendment is authorized or permitted by this Agreement and
that all conditions precedent to the execution and delivery of such amendment
have been satisfied. The Trustee may, but shall not be obligated to, enter into
any such amendment which affects the Trustee's own rights, duties or immunities
under this Agreement or otherwise.
Section 12.2. No Recourse. Each Senior Certificateholder by accepting a
Senior Certificate acknowledges that such Certificateholder's Certificates
represent obligations of the Trust only and do not represent interests in or
obligations of the Depositor, Finance I, Finance II, Green Tree, the Servicer,
the Trustee, or any Affiliate of any of the foregoing and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Senior Certificates or the Related
Documents.
Section 12.3. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the principles of conflicts of laws thereof and the obligations, rights and
remedies of the parties under this Agreement shall be determined in accordance
with such laws.
Section 12.4. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
-44-
<PAGE>
Section 12.5. Third-Party Beneficiaries. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as otherwise provided in this
Agreement, no other Person shall have any right or obligation hereunder.
Section 12.6. Counterparts. For the purpose of facilitating its execution
and for other purposes, this Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and all of which counterparts shall constitute but one and the same
instrument.
Section 12.7. Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by certified mail-
return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of Finance I, Finance II or the Depositor, at the
following address: Registered Agent, The Corporation Trust Company, Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, with copies to:
Green Tree Financial Corporation, Attention: Chief Financial Officer, (b) in
the case of the Trustee, at the Corporate Trust Office, (c) in the case of the
Administrator or Paying Agent, First Trust National Association, 180 East 5th
Street, St. Paul, Minnesota 55101, Attention: Corporate Trust Operations,
Second Floor, (d) in the case of the Rating Agency, One State Street Plaza, New
York, New York 10004, or at such other address as shall be designated by any
such party in a written notice to the other parties. Notwithstanding the
foregoing, any notice required or permitted to be mailed to a Certificateholder
shall be given by first class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register, and any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
-45-
<PAGE>
IN WITNESS WHEREOF, the Depositor, Finance I, Finance II and the Trustee
have caused this Trust Agreement to be duly executed by their respective
officers as of the day and year first above written.
GREEN TREE MANUFACTURED
HOUSING NET INTEREST MARGIN
FINANCE CORP. I, AS DEPOSITOR
By _____________________________
Name:
Title:
GREEN TREE MANUFACTURED
HOUSING NET INTEREST MARGIN
FINANCE CORP. I
By _____________________________
Name:
Title:
GREEN TREE MANUFACTURED
HOUSING NET INTEREST MARGIN
FINANCE CORP. II
By _____________________________
Name:
Title:
WILMINGTON TRUST COMPANY
By _____________________________
Name:
Title:
-46-
<PAGE>
EXHIBIT A
FORM OF CERTIFICATE OF TRUST
CERTIFICATE OF TRUST OF
GREEN TREE SECURITIZED NET INTEREST MARGIN TRUST 1994-B
-------------------------------------------------------
THIS Certificate of Trust of GREEN TREE SECURITIZED NET INTEREST
MARGIN TRUST 1994-B (the "Trust"), dated as of June 1, 1994, is being duly
executed and filed by Wilmington Trust Company, a Delaware corporation, as
trustee, to form a business trust under the Delaware Business Trust Act
(12 Del. Code, (S) 3801 et seq.).
1. Name. The name of the business trust formed hereby is GREEN TREE
SECURITIZED NET INTEREST MARGIN TRUST 1994-B.
2. Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration.
3. This Certificate of Trust will be effective June 1, 1994.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
Wilmington Trust Company, not in its
individual capacity but solely as
Trustee under a Trust Agreement dated
as of June 1, 1994.
By ____________________________________
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF SENIOR CERTIFICATE
GREEN TREE SECURITIZED NET INTEREST MARGIN TRUST 1994-B
SECURITIZED NET INTEREST MARGIN
CERTIFICATE
(This Securitized Net Interest Margin Certificate
does not represent an obligation of, or an interest
in, Green Tree Financial Corporation ("Green Tree")
or any of its affiliates, except to the extent set
forth in the Trust Agreement referred to herein.)
Certificate No. _____ Denomination: $__________
Cut-off Date: June 1, 1994 Aggregate Denomination of all
(or July 1,1994, with Certificates: $92,400,000
respect to Contracts included
in the 1994-4 Securitized Pool)
First Distribution Date: August 15, 1994 Interest Rate: ____%
Maturity Date:
Servicer: July 15, 2004
Green Tree Financial Corporation
CUSIP: __________
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York Corporation ("DTC") to the Trustee or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
B-1
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securitized Net Interest Margin Certificates
referred to in the within-mentioned Trust Agreement.
WILMINGTON TRUST COMPANY, [or] WILMINGTON TRUST COMPANY,
not in its individual capacity but not in its individual capacity but
solely as Trustee solely as Trustee
By FIRST TRUST NATIONAL
ASSOCIATION,
Authenticating Agent
by_______________________________
by _______________________________
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
Securitized Net Interest Margin Certificate (herein called a "Certificate")
issued by the Green Tree Securitized Net Interest Margin Trust 1994-B (the
"Trust"). The Trust was created pursuant to a Trust Agreement, dated as of June
1, 1994 (the "Trust Agreement"), among Green Tree Manufactured Housing Net
Interest Margin Finance Corp. I ("Finance I"), Green Tree Manufactured Housing
Net Interest Margin Finance Corp. II ("Finance II") and Wilmington Trust
Company, not in its individual capacity but solely as Trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Trust Agreement, each of the Assignments,
dated as of June 1, 1994 (the "Assignments") among (i) Green Tree and Finance I
and (ii) Green Tree, Finance I and Finance II, or the Transfer Agreement dated
as of June 1, 1994 (the "Transfer Agreement"), among Finance I, Finance II and
the Trust or the Servicing Agreement dated as of June 1, 1994 (the "Servicing
Agreement"), between the Trust and Green Tree, as servicer ("Green Tree" or the
"Servicer").
The Trust, for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of $92,400,000, payable on or before July
15, 2004. The Trust will pay interest on this Certificate at the rate per annum
shown above on each Distribution Date until the principal of this Certificate is
paid or made available for payment, on the principal amount outstanding on the
preceding Distribution Date (after giving effect to all payments of principal on
the preceding Distribution Date), to the extent of the Amount Available on each
Distribution Date.
This Certificate is one of the duly authorized Certificates designated
in the Trust Agreement as "Senior Certificates." The Trust is also issuing
Subordinated Certificates (the "Subordinated Certificates" and, together with
the Senior Certificates, the "Certificates"). This Certificate is issued under
and is subject to the terms, provisions and conditions of the Trust Agreement,
to which Trust
B-2
<PAGE>
Agreement the holder of this Certificate by virtue of the acceptance hereof
assents and by which such holder is bound. The Certificates are payable solely
from the assets of the Trust, which include (as more fully described in the
Trust Agreement) (i) a limited recourse note (the "Finance I Note") issued by
Finance I and (ii) the residual interests in certain trusts (the "Residual
Assets"). The Finance I Note will be payable solely from certain assets of
Finance I (the "Guarantee Fee") acquired by Finance I from Green Tree.
Under the Trust Agreement, there will be distributed on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (the "Distribution Date") to the person in whose name this
Certificate is registered at the close of business on the last day of the
preceding calendar month (the "Record Date"), such Certificateholder's
Fractional Undivided Interest in the sum of (a) the Senior Certificateholders'
Interest Distributable Amount and (b) the Senior Certificateholders' Principal
Distributable Amount, to the extent of the funds available therefor.
The Trust shall pay interest on overdue installments of interest at
the Interest Rate to the extent lawful.
As described above, the entire unpaid principal amount of this
Certificate shall be due and payable on or before the Distribution Date
occurring in July 2004. Notwithstanding the foregoing, the entire unpaid
principal amount of the Senior Certificates shall be due and payable on the date
on which an Event of Default shall have occurred and be continuing and the
Trustee or the Holders of the Senior Certificates representing 25% of the Senior
Certificates have declared the Senior Certificates to be immediately due and
payable in the manner provided in Section 9.2 of the Trust Agreement. All
principal payments on the Senior Certificates shall be made pro rata to the
Senior Certificateholders entitled thereto.
It is the intent and agreement of the Depositor, the Subordinated
Certificateholders and the Senior Certificateholders that, for purposes of
federal income, state and local income and franchise and any other income taxes,
the Senior Certificates will be treated as debt of the Trust. Each
Certificateholder, by acceptance of a Certificate, covenants and agrees to
treat, and to take no action inconsistent with the treatment of, the Senior
Certificates as debt for such tax purposes.
Each Senior Certificateholder, by its acceptance of a Senior
Certificate, covenants and agrees that such Certificateholder will not at any
time institute against either Subordinated Certificateholder or join in any
institution against either Subordinated Certificateholder of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificates, the Trust
Agreement or any of the Related Documents.
B-3
<PAGE>
Except as provided in the Trust Agreement, distributions on this
Certificate will be made by the Trustee by check or money order mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon, or by
wire transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior to
such Distribution Date and such Certificateholder's Senior Certificates in the
aggregate evidence a denomination of not less than $1,000,000 (or if such
Certificateholder is a Depositor or an Affiliate thereof). Except as otherwise
provided in the Trust Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency maintained for that purpose by the
Trustee. The Record Date otherwise applicable to distributions shall not be
applicable to such final distribution.
The Certificates do not represent an obligation of, or an interest in,
Green Tree, the Trustee or any Affiliate of any of them. The Certificates are
limited in right of payment to certain collections and recoveries respecting the
Finance I Note and the Residual Assets, all as more specifically set forth in
the Trust Agreement. None of the Trustee, the Administrator or the Subordinated
Certificateholders shall incur any personal liability in connection herewith. A
copy of the Trust Agreement may, upon request, be examined by any
Certificateholder during normal business hours at the principal office of
Finance I and at such other places, if any, designated by Finance I.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Trust
Agreement at any time by the Subordinated Certificateholders and the Trustee.
In certain limited circumstances, the Trust Agreement may only be amended with
the consent of the Holders of Senior Certificates evidencing not less than a
majority of the aggregate outstanding principal amount of the Senior
Certificates and, in certain circumstances, 100% of the aggregate outstanding
principal amount of the Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and on all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate.
As provided in the Trust Agreement and subject to certain limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Registrar upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the First Trust National Association on behalf of the Trustee in St. Paul,
Minnesota, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate
B-4
<PAGE>
Registrar duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate fractional undivided interest in the
Trust of the same class shall be issued to the designated transferee.
This Certificate may not be acquired by a "disqualified organization"
(as defined below). By accepting and holding this Certificate, the Holder
hereof shall be deemed to have represented and warranted that it is not a
disqualified organization. Any attempted or purported transfer in violation of
these transfer restrictions will be null and void and will vest no rights in any
purported transferee. A "disqualified organization" means (i) the United
States, any State or political subdivision thereof, any foreign government, any
international organization, or any agency or instrumentality of the foregoing
(not including instrumentalities described in Section 168(h)(2)(D) of the Code
or the Federal Home Loan Mortgage Corporation), (ii) any organization (other
than a cooperative described in Section 521 of the Code) that is exempt from
federal income tax, unless it is subject to the tax imposed by Section 511 of
the Code or (iii) any organization described in Section 1381(a)(2)(C) of the
Code.
The Senior Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof. As
provided in the Trust Agreement and subject to certain limitations therein set
forth, Senior Certificates are exchangeable for new Senior Certificates of
authorized denominations of a like aggregate fractional undivided interest, as
requested by the Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the Trustee may require
payment of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
The Trustee, the Certificate Registrar and any agent of the Trustee or
the Certificate Registrar may treat the person in whose name this Certificate is
registered as the owner hereof for the purpose of receiving distributions and
for all other purposes, and neither the Trustee, the Certificate Registrar nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate upon the payment to Senior
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the disposition of all property held as part of the Trust.
Finance I and Finance II may at their option cause the Trust to prepay the
Senior Certificates in whole but not in part by contributing cash to the Trust
in an amount equal to the unpaid principal amount of the Senior Certificates
plus any accrued and unpaid interest, and such prepayment will effect early
retirement of the Senior Certificates; provided, however, such right of purchase
is exercisable only as of a Distribution Date as of which the outstanding
principal amount of the Senior Certificates is less than 10% of the original
principal amount of the Senior Certificates.
B-5
<PAGE>
The recitals contained herein shall be taken as the statements of the
Depositor or the Subordinated Certificateholders, as the case may be, and the
Trustee assumes no responsibility for the correctness thereof. The Trustee
makes no representations as to the validity or sufficiency of this Certificate
or of the assignment of the Guarantee Fee or the Residual Assets or any related
document.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual or facsimile
signature, this Certificate shall not entitle the holder hereof to any benefit
under the Trust Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Certificate to be duly executed.
Dated: _________, 1994 GREEN TREE SECURITIZED NET
INTEREST MARGIN TRUST 1994-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By: _______________________________
Name:
Title:
B-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
___________________________________________________________________________
(Please print or typewrite name and address, including postal zip code, of
assignee)
___________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
___________________________________________________________________________
Attorney to transfer said Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
* _________________________________________
Signature Guaranteed:
* _________________________________________
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of The New York Stock Exchange, Inc. or a commercial
bank or trust company.
B-7
<PAGE>
EXHIBIT C
FORM OF SUBORDINATED CERTIFICATE
GREEN TREE SECURITIZED NET INTEREST MARGIN TRUST 1994-B
SUBORDINATED CERTIFICATE
(This Subordinated Certificate does not represent
an obligation of, or an interest in, Green Tree
Financial Corporation ("Green Tree"), or any of its
affiliates, except to the extent set forth in the
Trust Agreement referred to herein.)
Certificate No. [1/2] Percentage Interest: [50/50]%
Cut-off Date: June 1, 1994
(or July 1, 1994,
with respect to
Contracts included
in the 1994-4
Securitized Pool)
First Distribution Date: August 15, 1994
Servicer:
Green Tree Financial Corporation
C-1
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Certificates referred to in the
within-mentioned Trust Agreement.
WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY
as Trustee [or] as Trustee
By FIRST TRUST NATIONAL
ASSOCIATION
Authenticating Agent
by_______________________
by_______________________________
THIS CERTIFIES THAT [Green Tree Manufactured Housing Net Interest
Margin Finance Corp. I/Green Tree Net Interest Margin Finance Corp. II] is the
registered owner of a nonassessable, fully-paid, fractional undivided interest
in Green Tree Securitized Net Interest Margin Trust 1994-B (the "Trust"). The
Trust was created pursuant to a Trust Agreement, dated as of June 1, 1994 (the
"Trust Agreement"), among Green Tree Manufactured Housing Net Interest Margin
Finance Corp. I ("Finance I"), Green Tree Manufactured Housing Net Interest
Margin Finance Corp. II ("Finance II") and Wilmington Trust Company, as Trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Trust Agreement,
each of the Assignments, dated as of June 1, 1994 (the "Assignments"), between
(i) Green Tree and Finance I and (ii) Green Tree, Finance I and Finance II, or
the Transfer Agreement, dated as of June 1, 1994 (the "Transfer Agreement"),
among Finance I, Finance II and the Trust, or the Servicing Agreement dated as
of June 1, 1994 (the "Servicing Agreement"), between the Trust and Green Tree,
as servicer ("Green Tree" or the "Servicer").
This Certificate is one of the duly authorized Certificates designated
in the Trust Agreement as "Subordinated Certificates." The Trust is also
issuing Senior Certificates (the "Senior Certificates" and, together with the
Subordinated Certificates, the "Certificates"). This Certificate is issued
under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Certificate by virtue of
the acceptance hereof assents and by which such holder is bound. The
Certificates are payable solely from the assets of the Trust, which include (as
more fully described in the Trust Agreement) (i) a limited recourse note (the
"Finance I Note") issued by Finance I and (ii) the residual interests in certain
trusts (the "Residual Assets"). The Finance I Note will be payable solely from
certain assets of Finance I (the "Guarantee Fee") acquired by Finance I from
Green Tree.
C-2
<PAGE>
Under the Trust Agreement, no distributions of principal or interest
will be paid on the Subordinated Certificates until principal and interest on
the Senior Certificates have been paid in full (the "Senior Certificates Final
Payment"). On the Distribution Date following the Senior Certificates Final
Payment, there will be distributed on the 15th day of each month or, if such
15th day is not a Business Day, the next succeeding Business Day (the
"Distribution Date"), commencing on such Distribution Date, to the person in
whose name this Certificate is registered at the close of business on the last
day of the preceding Monthly Period (the "Record Date"), such
Certificateholder's Fractional Undivided Interest in the amount in the
Certificate Account, after payment of certain expenses of the Trust.
It is the intent and agreement of the Depositor, the Subordinated
Certificateholders and the Senior Certificateholders that, for purposes of
federal income, state and local income and franchise and any other income taxes,
the Trust will be treated as a partnership and the Subordinated
Certificateholders will be treated as partners in that partnership and the
Senior Certificates will be treated as debt of the Trust. The Subordinated
Certificateholders, by acceptance of a Subordinated Certificate, agree to treat,
and to take no action inconsistent with the treatment of, the Subordinated
Certificates for such tax purposes as partnership interests in the Trust.
Except as provided in the Agreement, distributions on this Certificate
will be made by the Trustee by check or money order mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon. Except
as otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee. The Record Date otherwise applicable to distributions
shall not be applicable to such final distribution.
The Certificates do not represent an obligation of, or an interest in,
Green Tree, the Trustee or any Affiliate of any of them. The Certificates are
limited in right of payment to certain collections and recoveries respecting the
Finance I Note and the Residual Assets, all as more specifically set forth in
the Trust Agreement. None of the Trustee, the Administrator or the Subordinated
Certificateholders shall incur any personal liability in connection herewith. A
copy of the Trust Agreement may, upon request, be examined by any
Certificateholder during normal business hours at the principal office of
Finance I and at such other places, if any, designated by Finance I.
The Subordinated Certificates may not be acquired by (a) an employee
benefit plan (as defined in Section 3(3) of ERISA) that is subject to the
provisions of Title 1 of ERISA, (b) a plan described in Section 4975(e)(1) of
the Code or (c) any entity whose underlying assets include plan assets by reason
of a plan's investment
C-3
<PAGE>
in the entity (each, a "Benefit Plan"). By accepting and holding this
Certificate, the Holder hereof shall be deemed to have represented and warranted
that it is not a Benefit Plan.
The Trustee, the Certificate Registrar and any agent of the Trustee or
the Certificate Registrar may treat the person in whose name this Certificate is
registered as the owner hereof for the purpose of receiving distributions and
for all other purposes, and neither the Trustee, the Certificate Registrar nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and Trust created thereby shall terminate upon the payment to Senior
Certificateholders of all amounts required to be paid to them pursuant to the
Agreement and the disposition of all property held as part of the Trust.
The recitals contained herein shall be taken as the statements of the
Depositor or the Subordinated Certificateholders, as the case may be, and the
Trustee assumes no responsibility for the correctness thereof. The Trustee
makes no representations as to the validity or sufficiency of this Certificate
or of the assignment of the Guarantee Fee or the Residual Assets or any related
document.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or be valid for any purpose.
C-4
<PAGE>
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Certificate to be duly executed.
Dated: _________, 1994 GREEN TREE SECURITIZED NET
INTEREST MARGIN TRUST 1994-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Trustee
By: __________________________________________
Name:
Title:
C-5
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
___________________________________________________________________________
(Please print or typewrite name and address, including postal zip code, of
assignee)
___________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
___________________________________________________________________________
Attorney to transfer said Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
* _________________________________________
Signature Guaranteed:
* _________________________________________
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of The New York Stock Exchange, Inc. or a commercial
bank or trust company.
C-6
<PAGE>
EXHIBIT D
FORM OF DEPOSITORY AGREEMENT
----------------------------
(See Attached)
D-1
<PAGE>
EXHIBIT E
FORM OF TRANSFER AGREEMENT
--------------------------
(See Attached)
E-1
<PAGE>
EXHIBIT F
FORM OF FINANCE I NOTE
----------------------
(See Attached)
F-1
<PAGE>
EXHIBIT G
FORM OF SECURITY AGREEMENT
--------------------------
(See Attached)
G-1
<PAGE>
EXHIBIT H
FORM OF SERVICING AGREEMENT
---------------------------
(See Attached)
H-1
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
INTRODUCTION................................................................ 1
ARTICLE I DEFINITIONS.............................................. 1
Section 1.1. Definitions.............................................. 1
Section 1.2. Usage of Terms........................................... 8
Section 1.3. Calculations............................................. 8
Section 1.4. Section References....................................... 8
Section 1.5. Action by or Consent of Certificateholders............... 8
ARTICLE II CREATION OF TRUST........................................ 9
Section 2.1. Creation of Trust........................................ 9
Section 2.2. Office................................................... 9
Section 2.3. Purposes and Powers...................................... 9
Section 2.4. Appointment of Trustee................................... 10
Section 2.5. Initial Capital Contribution of Trust Estate............. 10
Section 2.6. Declaration of Trust..................................... 10
Section 2.7. Liability of the Certificateholders...................... 11
Section 2.8. Title to Trust Property.................................. 11
Section 2.9. Situs of Trust........................................... 12
Section 2.10. Representations and Warranties of Finance I
and Finance II........................................... 12
Section 2.11. Federal Income Tax Allocations........................... 13
Section 2.12. Covenants of the Subordinated Certificateholders......... 14
Section 2.13. Covenants of the Certificate Owners...................... 15
ARTICLE III THE CERTIFICATES......................................... 16
Section 3.1. Initial Ownership........................................ 16
Section 3.2 Conditions to Issuance of the Certificates............... 16
Section 3.3. The Certificates......................................... 16
Section 3.4. Unconditional Rights of Senior Certificateholders
to Receive Principal and Interest........................ 17
Section 3.5. Authentication of Certificates........................... 17
Section 3.6. Registration of Transfer and Exchange of
Senior Certificates...................................... 17
Section 3.7. Mutilated, Destroyed, Lost or Stolen Certificates........ 20
Section 3.8. Persons Deemed Certificate Owners........................ 21
Section 3.9. Access to List of Certificateholders' Names and Addresses 21
Section 3.10. Maintenance of Office or Agency.......................... 21
Section 3.11. Appointment of Paying Agent.............................. 21
</TABLE>
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ARTICLE IV ACTIONS BY CERTIFICATEHOLDERS............................ 22
Section 4.1. Restriction on Power of Certificate Owners............... 22
Section 4.2. Restrictions on Certificate Owners' Power................ 22
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES............... 23
Section 5.1. Certificate Account...................................... 23
Section 5.2. Distribution of Funds in Certificate Account............. 24
Section 5.3. Method of Payment........................................ 27
Section 5.4. No Segregation of Monies; No Interest.................... 27
Section 5.5. Accounting; Reports; Tax Returns......................... 27
Section 5.6. Prepayment of Senior Certificates; Final Payment
on Senior Certificates................................... 28
ARTICLE VI AUTHORITY AND DUTIES OF TRUSTEE.......................... 29
Section 6.1. General Authority........................................ 29
Section 6.2. General Duties........................................... 29
Section 6.3. Action upon Instruction.................................. 30
Section 6.4. No Duties Except as Specified in this Agreement
or in Instructions....................................... 31
Section 6.5. No Action Except under Specified Documents
or Instructions.......................................... 31
Section 6.6. Restrictions............................................. 31
Section 6.7 Administration Agreement................................. 31
ARTICLE VII CONCERNING THE TRUSTEE................................... 32
Section 7.1. Acceptance of Trustee and Duties......................... 32
Section 7.2. Furnishing of Documents.................................. 33
Section 7.3. Representations and Warranties........................... 34
Section 7.4. Reliance; Advice of Counsel.............................. 34
Section 7.5. Not Acting in Individual Capacity........................ 35
Section 7.6. Trustee Not Liable for Certificates or
Related Documents........................................ 35
Section 7.7. Trustee May Own Senior Certificates...................... 35
ARTICLE VIII COMPENSATION OF TRUSTEE AND
ADMINISTRATION........................................... 36
Section 8.1. Trustee's and Administrator's Fees and Expenses.......... 36
Section 8.2. Non-recourse Obligations................................. 36
ARTICLE IX DEFAULT.................................................. 36
Section 9.1. Events of Default........................................ 36
Section 9.2. Rights upon an Event of Default.......................... 37
Section 9.3. Distributions............................................ 38
</TABLE>
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<S> <C> <C>
ARTICLE X TERMINATION.............................................. 38
Section 10.1. Termination of the Trust................................. 38
Section 10.2. Dissolution Events with respect to the
Subordinated Certificateholders.......................... 39
ARTICLE XI SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES............... 40
Section 11.1. Eligibility Requirements for Trustee..................... 40
Section 11.2. Resignation or Removal of Trustee........................ 40
Section 11.3. Successor Trustee........................................ 41
Section 11.4. Merger or Consolidation of Trustee....................... 41
Section 11.5. Appointment of Co-Trustee or Separate Trustee............ 42
ARTICLE XII MISCELLANEOUS PROVISIONS................................. 43
Section 12.1. Amendment................................................ 43
Section 12.2. No Recourse.............................................. 44
Section 12.3. Governing Law............................................ 44
Section 12.4. Severability of Provisions............................... 44
Section 12.5. Third-Party Beneficiaries................................ 45
Section 12.6. Counterparts............................................. 45
Section 12.7. Notices.................................................. 45
</TABLE>
EXHIBITS
FORM OF CERTIFICATE OF TRUST EXHIBIT A
FORM OF SENIOR CERTIFICATE EXHIBIT B
FORM OF SUBORDINATED CERTIFICATE EXHIBIT C
FORM OF DEPOSITORY AGREEMENT EXHIBIT D
FORM OF TRANSFER AGREEMENT EXHIBIT E
FORM OF FINANCE I NOTE EXHIBIT F
FORM OF SECURITY AGREEMENT EXHIBIT G
FORM OF SERVICING AGREEMENT EXHIBIT H
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EXHIBIT 4.2
GUARANTEE FEE ASSIGNMENT
THIS ASSIGNMENT (the "Assignment"), dated as of June 1, 1994, is made by
Green Tree Financial Corporation, a Minnesota corporation ("Green Tree") in
favor of Green Tree Manufactured Housing Net Interest Margin Finance Corp. I, a
Delaware corporation ("Finance I") and a wholly owned subsidiary of Green Tree.
WHEREAS, pursuant to that certain Pooling and Servicing Agreement dated as
of March 1, 1994 (the "1994-1 Pooling and Servicing Agreement"), Green Tree is
entitled to receive a guarantee fee (the "Guarantee Fee") for providing credit
enhancement against delinquencies, defaults and net liquidation losses on the
related pool of manufactured housing contracts.
WHEREAS, pursuant to the terms and conditions set forth herein, Green Tree
desires to assign to Finance I its right to receive the Guarantee Fee.
ARTICLE I
ASSIGNMENT OF GUARANTEE FEE
1.01 Guarantee Fee. Subject to and upon the terms and conditions set
forth in this Assignment, Green Tree, as a contribution of capital, hereby
transfers, assigns and delivers to Finance I all of its right to receive the
Guarantee Fee payable on or after July 15, 1994. In order to effect such
transfer, Green Tree shall deliver to the Trustee under the 1994-1 Pooling and
Servicing Agreement a written notification in substantially the form attached
hereto as Exhibit A.
1.02 Security Interest in the Guarantee Fee. Although the parties intend
that the assignment of Green Tree's right to receive the Guarantee Fee pursuant
to this Assignment shall constitute an absolute assignment and not a loan, if
such assignment is deemed to be a loan, the parties intend that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Assignment. The parties also intend and agree that Green Tree
shall be deemed to have granted to Finance I, and Green Tree does hereby grant
to Finance I, a first-priority perfected security interest in the Guarantee Fee,
and that this Assignment shall constitute a security agreement under applicable
law. Green Tree further agrees that it shall at any time or times hereafter
execute such instruments and perform such acts as the Trustee or Finance I may
request to establish and maintain a valid security interest in the Guarantee
Fee.
<PAGE>
ARTICLE II
INSIDE REFINANCING PAYMENTS AND REPURCHASE PAYMENTS;
SERVICING OBLIGATIONS
2.01 Inside Refinancing Payments. As part of the foregoing transfer, with
respect to each Contract which is refinanced by an Obligor (as such terms are
defined in the 1994-1 Pooling and Servicing Agreement) through Green Tree, Green
Tree agrees to pay to or upon the order of Finance I an amount (an "inside
refinancing payment") equal to the unpaid balance of such Contract, multiplied
by the factor applicable to such Contract, based on the month in which such
refinancing occurs, as specified for the 1994-1 Securitized Pool in Exhibit A to
the Residual Assets Assignment. Green Tree further agrees that any such inside
refinancing payments that it is obligated to pay hereunder during any one month
period will be made by 3:00 Central Standard Time on the business day
immediately preceding the Distribution Date for such month.
2.02 Repurchase Payments. As part of the foregoing transfer, with respect
to each Contract in the 1994-1 Securitized Pool which is repurchased by Green
Tree pursuant to its right as Servicer to repurchase such Contract when the
outstanding balance of the 1994-1 Securitized Pool has declined to 10% or less
of its initial principal balance, or which is repurchased by Green Tree because
of a breach of certain representations and warranties contained in the 1994-1
Pooling and Servicing Agreement, Green Tree agrees to pay to or upon the order
of Finance I an amount (a "repurchase payment") equal to the unpaid balance of
such Contract multiplied by the factor applicable to such Contract, based on the
month in which such repurchase occurs, as specified in Exhibit A to the Residual
Assets Assignment. Green Tree further agrees that any such repurchase payments
that it is obligated to pay hereunder during any one month period will be made
by 3:00 Central Standard Time on the business day immediately preceding the
Distribution Date for such month.
2.03 Servicing Obligations. Green Tree agrees to continue to act as
servicer of the Contracts, to provide such reports with respect to the Guarantee
Fee as Finance I may reasonably request, and to enter into such further
agreements with Finance I or its assignee relating to such servicing obligations
as Finance I may reasonably request.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GREEN TREE
Green Tree hereby represents and warrants to Finance I that:
3.01 Green Tree. Green Tree is a corporation duly organized, validly
existing and in good standing under the laws of Minnesota, with the requisite
corporate power and authority to enter into this Assignment and to perform the
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obligations required of it hereunder. The execution and performance of this
Assignment by Green Tree and the consummation of the transactions contemplated
hereby will not violate any provision of law applicable to Green Tree, and do
not and will not conflict with any of the terms of its Articles of Incorporation
or By-Laws. The execution and performance of this Assignment will not violate
the 1994-1 Pooling and Servicing Agreement; nor will the execution and
performance of this Assignment conflict with any other material agreements of
Green Tree which would result in a material adverse effect on Green Tree.
3.02 Compliance with Contracts and Regulations. Green Tree has complied
with all its obligations under the Contracts and the 1994-1 Pooling and
Servicing Agreement and all applicable laws and regulations of the Federal
Housing Administration ("FHA"), the Veterans Administration ("VA") and any other
government authority which might affect the validity or enforceability of the
Contracts or the 1994-1 Pooling and Servicing Agreement and the consummation of
the transactions contemplated hereby will not violate any such obligations, laws
or regulations.
3.03 Title to the Guarantee Fee. Green Tree is currently the sole owner
of the Guarantee Fee, free and clear of all liens and encumbrances and upon the
execution and delivery of this Assignment, together with the notification to the
Trustee under the 1994-1 Pooling and Servicing Agreement, Finance I shall be the
sole owner of the Guarantee Fee, free and clear of all liens and encumbrances.
ARTICLE IV
MISCELLANEOUS
4.01 Remedies.
(a) Any material breach by Green Tree of any representation or warranty
made hereunder shall be enforceable by all remedies available in law or equity,
including the repurchase of the Guarantee Fee by Green Tree.
(b) Green Tree acknowledges that Finance I intends to pledge the Guarantee
Fee and all Finance I's rights under this Assignment to the Trust pursuant to a
Security Agreement, dated as of July 27, 1994, between Finance I and the Trust.
Green Tree further acknowledges that all rights and remedies available to
Finance I upon the material breach by Green Tree of any representations or
warranties made hereunder are also available to the Trustee of such Trust.
4.02 Non-Petition Covenant. Green Tree hereby agrees that it shall not,
for any reason, institute proceedings for Finance I or the Trust to be
adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against Finance I or the Trust, or file a petition
seeking or consenting to reorganization or relief under any applicable federal
or state law relating to the
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<PAGE>
bankruptcy of Finance I or the Trust, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of Finance I or the Trust or a substantial part of the property of
Finance I or the Trust or cause or permit Finance I or the Trust to make any
assignment for the benefit of creditors, or admit in writing the inability of
Finance I or the Trust to pay its debts generally as they become due, or declare
or effect a moratorium on the debt of Finance I or the Trust or take any action
in furtherance of any such action.
4.03 Survival of Representations and Warranties. Green Tree covenants and
agrees that its representations and warranties in this Assignment, and in any
document delivered or to be delivered pursuant hereto, shall survive the date
hereof.
4.04 Governing Law. The internal law, without regard to conflicts of laws
principles, of the State of Minnesota will govern all questions concerning the
construction, validity and interpretation of this Assignment and the performance
of the obligations imposed by this Assignment.
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<PAGE>
IN WITNESS WHEREOF, Green Tree has executed this Assignment as of the day
and year first above written.
GREEN TREE FINANCIAL CORPORATION
By______________________________
Its___________________________
Acknowledged by: GREEN TREE MANUFACTURED
HOUSING NET INTEREST MARGIN
FINANCE CORP. I
By______________________________
Its___________________________
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<PAGE>
EXHIBIT A
FORM OF TRUSTEE NOTIFICATION
FOR GUARANTEE FEE ASSIGNMENT
First Bank National Association
Corporate Trust Department
180 East 5th Street
St. Paul, Minnesota 55101
Attention: Corporate Trust Administration, Second Floor
Ladies and Gentlemen:
You are currently acting as Trustee under a Pooling and Servicing
Agreement, dated as of March 1, 1994, between Green Tree Financial Corporation
("Green Tree"), as Seller and Servicer, and you, as Trustee. As such Trustee,
you are obligated to remit to Green Tree the Guarantee Fee (as defined in such
Pooling and Servicing Agreement). We hereby notify you that we have assigned
all of our right to receive such Guarantee Fee on or after July 15, 1994 to
Green Tree Manufactured Housing Net Interest Margin Finance Corp. I ("Finance
I"). Henceforth you should remit all proceeds of such Guarantee Fee to Finance
I or its assignee.
Dated July 27, 1994 GREEN TREE FINANCIAL CORPORATION
By___________________________
Its________________________
Acknowledged:
First Bank National Association
By _______________________________
Its ____________________________
<PAGE>
EXHIBIT 4.3
RESIDUAL ASSETS ASSIGNMENT
THIS ASSIGNMENT (the "Assignment"), dated as of June 1, 1994, is made by
Green Tree Financial Corporation, a Minnesota corporation ("Green Tree"), in
favor of Green Tree Manufactured Housing Net Interest Margin Finance Corp. I, a
Delaware corporation ("Finance I") and a wholly owned subsidiary of Green Tree,
and Green Tree Manufactured Housing Net Interest Margin Finance Corp. II, a
Delaware corporation ("Finance II") and a wholly owned subsidiary of Green Tree.
WHEREAS, Green Tree is the owner of certain residual interests (the
"Residual Assets") in the "real estate mortgage investment conduits" ("REMICs")
issued pursuant to the Pooling and Servicing Agreements identified in Appendix I
attached hereto ("the Pooling and Servicing Agreements").
WHEREAS, pursuant to the terms and conditions set forth herein, Green Tree
desires to assign to each of Finance I and Finance II its right, title and
interest in fifty percent (50%) of each of the Residual Assets.
ARTICLE I
ASSIGNMENT OF RESIDUAL ASSETS
1.01 Residual Assets. Subject to and upon the terms and conditions set
forth in this Assignment, Green Tree, as a contribution of capital, hereby
transfers, assigns and delivers to each of Finance I and Finance II its right,
title and interest in fifty percent (50%) of each of the Residual Assets,
effective as of July 14, 1994. In order to effect such transfer, Green Tree
shall deliver to or upon the order of Finance I and Finance II the certificates
evidencing such Residual Assets, duly endorsed by Green Tree.
1.02 Security Interest in Residual Assets. Although the parties intend
that the assignment of the Residual Assets pursuant to this Assignment shall
constitute an absolute assignment and not a loan, if such assignment is deemed
to be a loan, the parties intend that the rights and obligations of the parties
to such loan shall be established pursuant to the terms of this Assignment. The
parties also intend and agree that Green Tree shall be deemed to have granted to
the Trustee (as assignee of Finance I and Finance II), and Green Tree does
hereby grant to the Trustee, a first-priority perfected security interest in the
Residual Assets, and that this Assignment shall constitute a security agreement
under applicable law. If the trust created by the Trust Agreement terminates
prior to the satisfaction of the claims of any person under any Senior
Certificates (as defined in the Trust Agreement), the security interest created
hereby shall continue in full force and effect and the Trustee shall be deemed
to be the collateral agent for the benefit of such person.
<PAGE>
ARTICLE II
INSIDE REFINANCING PAYMENTS AND REPURCHASE PAYMENTS;
SERVICING OBLIGATIONS
2.01 Inside Refinancing Payments. As part of the foregoing transfer,
with respect to each Contract which is refinanced by an Obligor (as such terms
are defined in the Pooling and Servicing Agreements) through Green Tree, Green
Tree agrees to pay to or upon the order of Finance I and Finance II an amount
(an "inside refinancing payment") equal to the unpaid balance of such Contract,
multiplied by the factor applicable to such Contract, based on the month in
which such refinancing occurs and the Securitized Pool in which such Contract
was included, as specified in Exhibit A hereto; provided, however, that if an
inside refinancing payment with respect to the same Contract is paid by Green
Tree in connection with the assignment by Green Tree of the Guarantee Fee
pursuant to the Guarantee Fee Assignment, such inside refinancing payment shall
not be paid in connection with the assignment of the Residual Assets hereunder.
Green Tree further agrees that any such inside refinancing payments that it is
obligated to pay hereunder during any one month period will be made by 3:00
Central Standard Time on the business day immediately preceding the Distribution
Date for such month.
2.02 Repurchase Payments. As part of the foregoing transfer, with respect
to each Contract in a Securitized Pool which is repurchased by Green Tree
pursuant to its right as Servicer to repurchase such Contract in such
Securitized Pool when the outstanding balance of such Securitized Pool has
declined to 10% or less of its initial principal balance, or which is
repurchased by Green Tree because of a breach of certain representations and
warranties contained in the applicable Pooling and Servicing Agreement, Green
Tree agrees to pay to or upon the order of Finance I or Finance II an amount (a
"repurchase payment") equal to the unpaid balance of such Contract, multiplied
by the factor applicable to such Contract, based on the month in which such
repurchase occurs and the Securitized Pool in which such Contract was included,
as specified in Exhibit A hereto; provided, however, that if a repurchase
payment with respect to the same Contract is paid by Green Tree in connection
with the assignment by Green Tree of the Guarantee Fee pursuant to the Guarantee
Fee Assignment, such repurchase payment shall not be paid in connection with the
assignment of the Residual Assets hereunder. Green Tree further agrees that any
such repurchase payments that it is obligated to pay hereunder during any one
month period will be made by 3:00 Central Standard Time on the business day
immediately preceding the Distribution Date for such month.
2.03 Servicing Obligations. Green Tree agrees to continue to act as
servicer of the Contracts, to provide such reports with respect to the Residual
Assets as Finance I or Finance II may reasonably request, and to enter into such
further
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<PAGE>
agreements with Finance I or Finance II or their assignee relating to such
servicing obligations as Finance I and Finance II may reasonably request.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GREEN TREE
Green Tree hereby represents and warrants to each of Finance I and Finance
II that:
3.01 Green Tree. Green Tree is a corporation duly organized, validly
existing and in good standing under the laws of Minnesota, with the requisite
corporate power and authority to enter into this Assignment and to perform the
obligations required of it hereunder. The execution and performance of this
Assignment by Green Tree and the consummation of the transactions contemplated
hereby, will not violate any provision of law applicable to Green Tree, and do
not and will not conflict with any of the terms of its Articles of Incorporation
or By-Laws. The execution and performance of this Assignment will not violate
any Pooling and Servicing Agreements; nor will the execution and performance of
this Assignment conflict with any other material agreements of Green Tree which
would result in a material adverse effect on Green Tree.
3.02 Compliance with Contracts and Regulations. Green Tree has complied
with all its obligations under the Contracts and the Pooling and Servicing
Agreements which might affect the validity or enforceability of the Contracts or
the Pooling and Servicing Agreements and the consummation of the transactions
contemplated hereby will not violate any such obligations, laws or regulations.
3.03 Title to the Residual Assets. Green Tree is currently the sole owner
of the Residual Assets, free and clear of all liens and encumbrances and upon
endorsement and delivery of the Residual Assets by Green Tree to Finance I and
Finance II, Finance I and Finance II shall be the sole owners of the Residual
Assets, free and clear of all liens and encumbrances.
ARTICLE IV
MISCELLANEOUS
4.01 Remedies.
(a) Any material breach by Green Tree of any representation or warranty
made hereunder shall be enforceable by all remedies available in law or equity,
including the repurchase of the Residual Assets by Green Tree.
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(b) Green Tree acknowledges that Finance I and Finance II intend to
transfer the Residual Assets to the Trust pursuant to a Transfer Agreement dated
as of June 1, 1994 among Finance I, Finance II and the Trust. Green Tree
further acknowledges that all rights and remedies available to Finance I and
Finance II upon the material breach by Green Tree of any representations or
warranties made hereunder are also available to the Trustee of such Trust.
4.02 Non-Petition Covenant. Green Tree hereby agrees that it shall not,
for any reason, institute proceedings for Finance I, Finance II or the Trust to
be adjudicated bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against Finance I, Finance II or the Trust,
or file a petition seeking or consenting to reorganization or relief under any
applicable federal or state law relating to the bankruptcy of Finance I, Finance
II or the Trust, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of Finance I,
Finance II or the Trust or a substantial part of the property of Finance I,
Finance II or the Trust or cause or permit Finance I, Finance II or the Trust to
make any assignment for the benefit of creditors, or admit in writing the
inability of Finance I, Finance II or the Trust to pay its debts generally as
they become due, or declare or effect a moratorium on the debt of Finance I,
Finance II or the Trust or take any action in furtherance of any such action.
4.03 Survival of Representations and Warranties. Green Tree covenants and
agrees that its representations and warranties in this Assignment, and in any
document delivered or to be delivered pursuant hereto, shall survive the date
hereof.
4.04 Governing Law. The internal law, without regard to conflicts of laws
principles, of the State of Minnesota will govern all questions concerning the
construction, validity and interpretation of this Assignment and the performance
of the obligations imposed by this Assignment.
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<PAGE>
IN WITNESS WHEREOF, Green Tree has executed this Assignment as of the day
and year first above written.
GREEN TREE FINANCIAL CORPORATION
By______________________________
Its__________________________
Acknowledged by: GREEN TREE MANUFACTURED
HOUSING NET INTEREST MARGIN
FINANCE CORP. I
By______________________________
Its__________________________
Acknowledged by: GREEN TREE MANUFACTURED
HOUSING NET INTEREST MARGIN
FINANCE CORP. II
By______________________________
Its__________________________
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APPENDIX I
RESIDUAL ASSETS
<TABLE>
<CAPTION>
Date of Registered
Securitized Pool Pooling and Servicing Owner
Name Agreement Residual Asset or Holder
- - ------------------ --------------------- ------------------- ----------
<S> <C> <C> <C>
GTFC 1994-1 March 1, 1994 Class C Certificate GTFC-Two
GTFC 1994-2 May 1, 1994 Class C Certificate GTFC-Two
GTFC 1994-3 June 1, 1994 Class C Certificate GTFC-Two
GTFC 1994-4 July 1, 1994 Class C Certificate GTFC-Two
</TABLE>
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<PAGE>
EXHIBIT A
INSIDE REFINANCING PAYMENT
AND
REPURCHASE PAYMENT FACTORS
A-1
<PAGE>
EXHIBIT 4.4
TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT (the "Agreement"), dated as of June 1, 1994, is
made and entered into between Green Tree Manufactured Housing Net Interest
Margin Finance Corp. I, a Delaware corporation ("Finance I"), Green Tree
Manufactured Housing Net Interest Margin Finance Corp. II, a Delaware
corporation ("Finance II"), and Green Tree Securitized Net Interest Margin Trust
1994-B, a Delaware business trust (the "Trust") created pursuant to a Trust
Agreement dated as of June 1, 1994, among Finance I, Finance II and Wilmington
Trust Company, a Delaware banking corporation, as Trustee (the "Trustee").
WHEREAS, pursuant to a Residual Assets Assignment, dated as of June 1,
1994, made by Green Tree Financial Corporation, a Minnesota corporation ("Green
Tree"), in favor of Finance I and Finance II (the "Residual Assets Assignment"),
Finance I and Finance II are the owners of certain residual interests (the
"Residual Assets") in the "real estate mortgage investment conduits" ("REMICs")
identified in Appendix I attached hereto. (All capitalized terms used herein and
not otherwise defined have the meanings assigned to them in the Residual Assets
Assignment.)
WHEREAS, pursuant to the terms and conditions set forth herein, Finance I
and Finance II desire to transfer the Residual Assets to the Trust.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
ASSIGNMENT OF RESIDUAL ASSETS
1.01 Residual Assets. Subject to and upon the terms and conditions set
forth in this Agreement, Finance I and Finance II, as a contribution of capital,
hereby transfer, assign and deliver to the Trust their right, title and interest
in each of the Residual Assets, effective June 1, 1994. In order to effect such
transfer, Finance I and Finance II shall deliver to or upon the order of the
Trust the certificates evidencing such Residual Assets, duly endorsed by Finance
I and Finance II, plus all distributions received on the Residual Assets on July
15, 1994.
1.02 Rights Under Residual Assets Assignment. Subject to and upon the
terms and conditions set forth in this Agreement, as part of the foregoing
transfer, Finance I and Finance II hereby assign to the Trust all their rights
under the Residual Assets Assignment, including but not limited to the
obligation of Green
<PAGE>
Tree to make Inside Refinancing Payments and Repurchase Payments and the
obligation of Green Tree to continue to act as servicer of the Contracts.
1.03 Security Interest in Residual Assets. Although the parties intend
that the assignment of the Residual Assets pursuant to this Agreement shall
constitute an absolute assignment and not a loan, if such assignment is deemed
to be a loan, the parties intend that the rights and obligations of the parties
to such loan shall be established pursuant to the terms of this Agreement. The
parties also intend and agree that Finance I and Finance II shall be deemed to
have granted to the Trustee, and Finance I and Finance II do hereby grant to the
Trustee, a first-priority perfected security interest in the items designated in
Section 1.01 above, and that this Agreement shall constitute a security
agreement under applicable law. If the trust created by the Trust Agreement
terminates prior to the satisfaction of the claims of any person under any
Senior Certificates (as defined in the Trust Agreement), the security interest
created hereby shall continue in full force and effect and the Trustee shall be
deemed to be the collateral agent for the benefit of such person.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF FINANCE I AND FINANCE II
Finance I and Finance II hereby represent and warrant to the Trust that:
2.01 Finance I and Finance II. Finance I and Finance II are corporations
duly organized, validly existing and in good standing under the laws of
Delaware, with the requisite corporate power and authority to enter into this
Agreement and to perform the obligations required of them hereunder. The
execution and performance of this Agreement by Finance I and Finance II and the
consummation of the transactions contemplated hereby will not violate any
provision of law applicable to Finance I and Finance II, and do not and will not
conflict with any of the terms of their respective Certificate of Incorporation
or By-Laws. The execution and performance of this Agreement will not conflict
with any material agreements of Finance I and Finance II that would result in a
material adverse effect on Finance I and Finance II.
2.02 Title to the Residual Assets. Finance I and Finance II are the sole
owners of the Residual Assets, free and clear of all liens and encumbrances and
upon endorsement and delivery of the Residual Assets to the Trust, the Trust
shall be the sole owner of the Residual Assets, free and clear of all liens and
encumbrances.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust hereby represents and warrants to Finance I and Finance II that:
3.01 Effective Agreement. The Trust is a business trust duly organized,
validly existing and in good standing under the laws of the State of Delaware,
with the requisite power and authority to enter into this Agreement and to
perform the obligations required of it hereunder. The execution and performance
of this Agreement by the Trust and the consummation of the transactions
contemplated hereby will not violate any provision of law applicable to the
Trust, and do not and will not conflict with the terms of any governing
instrument relating to the conduct of its business, or of any other material
agreements to which the Trust is a party or by which it may be bound.
ARTICLE IV
MISCELLANEOUS
4.01 Remedies. Finance I and Finance II hereby assign to the Trust all of
the rights and remedies available to them under the Residual Assets Assignment.
4.02 Survival of Representations and Warranties. Each party hereto
covenants and agrees that its representations and warranties in this Agreement,
and in any document delivered or to be delivered pursuant hereto, shall survive
the date hereof.
4.03 Notices. All notices and other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and delivered or mailed to the parties hereto at the appropriate
following address:
(a) If to Finance I, to:
Green Tree Manufactured Housing Net Interest Margin
Finance Corp. I
Registered Agent: The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
Telephone Number: (302) 658-7581
Telecopier Number: (302) 655-5049
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<PAGE>
(b) If to Finance II, to:
Green Tree Manufactured Housing Net Interest Margin
Finance Corp. II
Registered Agent: The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
Telephone Number: (302) 658-7581
Telecopier Number: (302) 655-5049
(c) If to the Trust, to:
Green Tree Securitized Net Interest Margin Trust 1994-B
In care of Wilmington Trust Company
Attention: Corporate Trust Administration
Rodney Square North
1100 North Market Square
Wilmington, DE 19890-0001
Telephone Number: (302) 651-8653
Telecopier Number: (302) 651-8882
(d) If to the Rating Agency, to:
Fitch Investors Services, Inc.
One State Street Plaza
New York, NY 10004
or to such other address as Finance I, Finance II, the Trust or the Rating
Agency shall have specified to the others in writing.
4.04 Amendment and Waiver. This Agreement may be amended or modified, and
any of the terms, covenants, representations, warranties or conditions hereof
may be waived, only by a written instrument executed by the Trust and Finance I
or Finance II, as applicable, or in the case of a waiver, by the party waiving
compliance. Any waiver by any party of any condition, or of the breach of any
provision, term, covenant, representation or warranty contained in this
Agreement, in any one or more instances, shall not be deemed or construed as
further or continuing waiver of any such condition, or of the breach of any
other provision, term, covenant, representation or warranty of this Agreement.
Finance I shall mail notification of any such amendment or waiver to the Rating
Agency.
4.05 Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of
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<PAGE>
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
4.06 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter hereof. The invalidity
of any provision hereof shall not affect the validity of any other provision.
4.07 Binding Effect. This Agreement and all the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties hereto and
their respective successors and assigns, any rights, obligations, remedies or
liabilities.
4.08 Headings. The headings herein are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
4.09 Governing Law. The internal law, without regard to conflicts of laws
principles, of the State of Minnesota will govern all questions concerning the
construction, validity and interpretation of this Agreement and the performance
of the obligations imposed by this Agreement.
4.10 Limitation of Trustee's Liability. Notwithstanding anything
contained herein to the contrary, this instrument has been countersigned by
Wilmington Trust Company not in its individual capacity but solely in its
capacity as Trustee of the Trust and in no event shall Wilmington Trust Company
in its individual capacity, or any beneficial owner of the Trust, have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Trust hereunder, as to all of which recourse shall be had
solely to the assets of the Trust. For all purposes of this Agreement, in the
performance of any duties or obligations of the Trust hereunder, the Trustee
shall be subject to, and entitled to the benefits of, the terms and provisions
of Articles VI, VII and VIII of the Trust Agreement.
4.11 Non-Petition Covenant. Finance II hereby agrees that it shall not,
for any reason, institute proceedings for the Trust to be adjudicated bankrupt
or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against the Trust, or file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating to
the bankruptcy of the Trust, or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Trust or a substantial part of the property of the Trust or cause or permit the
Trust to make any assignment for the benefit of creditors, or admit in writing
the inability of the Trust to pay its debts generally as they become due, or
declare or effect a moratorium on the debt of the Trust or take any action in
furtherance of any such action.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
GREEN TREE MANUFACTURED
HOUSING NET INTEREST MARGIN
FINANCE CORP. I
By ________________________________
Its ____________________________
GREEN TREE MANUFACTURED
HOUSING NET INTEREST MARGIN
FINANCE CORP. II
By ________________________________
Its ____________________________
GREEN TREE SECURITIZED NET
INTEREST MARGIN TRUST 1994-B
By Wilmington Trust Company, not in its
individual capacity but solely as Trustee
By ________________________________
Its ____________________________
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<PAGE>
APPENDIX I
RESIDUAL ASSETS
DATE OF REGISTERED
SECURITIZED POOL POOLING AND SERVICING OWNER
NAME AGREEMENT RESIDUAL ASSET OR HOLDER
- - ---------------- --------------------- ------------------- ----------
GTFC 1994-1 March 1, 1994 Class C Certificate GTFC-Two
GTFC 1994-2 May 1, 1994 Class C Certificate GTFC-Two
GTFC 1994-3 June 1, 1994 Class C Certificate GTFC-Two
GTFC 1994-4 July 1, 1994 Class C Certificate GTFC-Two
I-1
<PAGE>
EXHIBIT 4.5
LIMITED RECOURSE NOTE
$34,700,000 St. Paul, Minnesota
July 27, 1994
FOR VALUE RECEIVED, Green Tree Manufactured Housing Net Interest Margin
Finance Corp. I ("Maker") hereby promises to pay to the order of Green Tree
Securitized Net Interest Margin Trust 1994-B or its successors or assigns, as
the case may be ("Payee"), at St. Paul, Minnesota, or such other place as the
Payee may from time to time designate in writing, the principal sum of thirty-
four million seven hundred thousand dollars ($34,700,000.00) (the "Principal
Amount"), with interest (computed on the basis of a 360-day year of twelve 30-
day months) at the rate of 7.85% per annum on the unpaid balance hereof until
the Maturity Date (as defined below). All payments from whatever source shall be
first applied to interest and then to principal.
Accrued interest shall be payable on the 15th day (or if such day is not a
business day, the next succeeding business day) of each month, commencing August
15, 1994, and continuing on the same day in each succeeding month, computed on
the basis of a 360-day year of 30-day months. The principal due and payable on
this Note prior to the Maturity Date shall be equal to all collections on the
Guarantee Fee (together with any Inside Refinancing Payments and Repurchase
Payments made by Green Tree pursuant to the Guarantee Fee Assignment) remitted
to Maker on such Distribution Date, minus the accrued interest payable on such
installment date. The interest due hereunder on August 15, 1994, shall be equal
to interest accrued from July 27, 1994, and the principal payable hereunder on
August 15, 1994 shall be equal to all collections on the Guarantee Fee (together
with any Inside Refinancing Payments and Repurchase Payments made by Green Tree
pursuant to the Guarantee Fee Assignment) remitted to Maker on August 14, 1994,
less the amount of interest described above.
1. Definitions.
All terms defined in the Trust Agreement or the Guarantee Fee Assignment
(each as defined below) shall have the same meaning in this Note. Whenever
capitalized and used in this Note, the following words and phrases, unless
otherwise specified, shall have the following meanings:
Guarantee Fee. The Guarantee Fee shall have the meaning set forth in that
certain Guarantee Fee Assignment, dated as of June 1, 1994, made by Green Tree
in favor of Maker, plus any Inside Refinancing Payments and Repurchase Payments
made by Green Tree pursuant to the Guarantee Fee Assignment.
<PAGE>
Guarantee Fee Assignment. The Guarantee Fee Assignment, dated as of June
1, 1994, made by Green Tree in favor of Maker, which transfers the Guarantee Fee
to Maker.
Green Tree. Green Tree Financial Corporation, a Minnesota corporation, in
its individual capacity and as seller of the Guarantee Fee to Maker.
Maturity Date. The earliest to occur of:
(i) A declaration by Payee pursuant to Section 3.3 of this Note that
the unpaid balance of the Principal Amount and any unpaid interest accrued
thereon is immediately due and payable;
(ii) A written declaration by Maker pursuant to the terms hereof that
it desires to prepay this Note; and
(iii) The Distribution Date occurring in July 2004.
Note. This Limited Recourse Note, as the same may from time to time be
amended.
Trust Agreement. The Trust Agreement, dated as of June 1, 1994, among
Maker, Green Tree Manufactured Housing Net Interest Margin Finance Corp. II and
Wilmington Trust Company, as Trustee.
2. Prepayment; Payment.
2.1 Maker shall have the right to prepay this Note in whole but not in
part, including all accrued but unpaid interest thereon, without penalty or
premium, at any time after the unpaid balance of the Principal Amount has been
reduced to 10% of the Principal Amount.
2.2 Maker shall pay the unpaid balance of the Principal Amount on the
Maturity Date.
3. Default.
3.1 An Event of Default means one of the following events:
(a) default in the payment of interest due on any Distribution Date, and
continuance of such default for a period of six months (allocated as provided in
Section 3.2); or
(b) failure to pay the entire Principal Amount on or before the
Distribution Date occurring in July 2004.
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<PAGE>
3.2 All payments applied to interest on this Note shall be deemed
allocated first to interest unpaid with respect to all prior Distribution Dates
(with interest accrued on the earliest Distribution Date being deemed paid
first), and then to interest accrued with respect to the current Distribution
Date.
3.3 If an Event of Default shall have occurred and be continuing, Payee
may, at Payee's option, declare the unpaid balance of the Principal Amount and
any unpaid interest accrued thereon immediately due and payable.
4. Covenants. Maker hereby covenants that all collections from the
Guarantee Fee remitted to Maker by Green Tree pursuant to the terms of the
Guarantee Fee Assignment will be used to make timely payments of principal and
interest on this Note.
5. Nonrecourse. Notwithstanding the provisions of this Note, the Trust
Agreement or any other document, this Note is a limited recourse obligation of
Maker, and the payment of principal of or interest on the indebtedness evidenced
hereby is payable solely from the Guarantee Fee (together with any Inside
Refinancing Payments and Repurchase Payments made by Green Tree pursuant to the
Guarantee Fee Assignment), and Payee, by acceptance hereof, agrees to look
solely to the Guarantee Fee (together with any Inside Refinancing Payments and
Repurchase Payments made by Green Tree pursuant to the Guarantee Fee Assignment)
for payment of such principal and interest. The foregoing shall not be deemed
or construed to be a release of the indebtedness evidenced hereby or to in any
way impair, limit or otherwise affect this Note, or any liens created on the
Guarantee Fee (together with any Inside Refinancing Payments and Repurchase
Payments made by Green Tree pursuant to the Guarantee Fee Assignment) as
security for the payment of indebtedness evidenced or secured hereby and for the
performance of the covenants in this Note, or prevent Payee from naming Maker,
its successors or assigns, as a defendant in any action to enforce any remedy
for an Event of Default, for payment of any such principal or interest, except
as expressly provided herein.
6. Grant of Security Interest. To secure payment of this Note, Maker has
granted to Payee a security interest in the Guarantee Fee (together with any
Inside Refinancing Payments and Repurchase Payments made by Green Tree pursuant
to the Guarantee Fee Assignment) pursuant to the terms of the Security
Agreement, dated as of July 27, 1994, between Maker and Payee (the "Security
Agreement").
7. Miscellaneous.
7.1 Maker hereby waives presentment for payment, notice of dishonor,
protest and notice of protest and, in the Event of Default hereunder, Maker
agrees to pay all costs of collection, including reasonable attorneys' fees.
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<PAGE>
7.2 No failure or delay by Payee to exercise any right or remedy under
this Note shall waive such right or remedy.
7.3 Maker hereby agrees that it shall not, for any reason, institute
proceedings for the Payee to be adjudicated bankrupt or insolvent, or consent to
the institution of bankruptcy or insolvency proceedings against the Payee, or
file a petition seeking or consenting to reorganization or relief under any
applicable federal or state law relating to the bankruptcy of the Payee, or
consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Payee or a substantial part of
the property of the Payee or cause or permit the Payee to make any assignment
for the benefit of creditors, or admit in writing the inability of the Payee to
pay its debts generally as they become due, or declare or effect a moratorium on
the debt of the Payee or take any action in furtherance of any such action.
7.4 This Note shall be governed by the laws of the State of Minnesota.
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<PAGE>
IN WITNESS WHEREOF, Maker has executed this Note as of the date first above
written.
GREEN TREE MANUFACTURED
HOUSING NET INTEREST MARGIN
FINANCE CORP. I
By _____________________________
Title:
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<PAGE>
EXHIBIT 4.6
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (the "Agreement"), dated as of June 1, 1994, is
made and entered into between Green Tree Financial Corporation, a Minnesota
corporation, as Servicer ("Green Tree" or the "Servicer") and Green Tree
Securitized Net Interest Margin Trust 1994-B (the "Trust"), created pursuant to
the Trust Agreement among Green Tree Manufactured Housing Net Interest Margin
Finance Corp. I ("Finance I"), Green Tree Net Interest Margin Finance Corp. II
("Finance II") and Wilmington Trust Company, a Delaware banking corporation, as
Trustee (the "Trustee"). All terms defined in the Guarantee Fee Assignment, the
Residual Assets Assignment, the Transfer Agreement (each as defined below) or
the Trust Agreement shall have the same meaning in this Agreement.
WHEREAS, pursuant to that certain Guarantee Fee Assignment dated as of June
1, 1994 (the "Guarantee Fee Assignment"), made by Green Tree in favor of Finance
I, Green Tree has transferred its right to receive the Guarantee Fee (as defined
in such Guarantee Fee Assignment) to Finance I.
WHEREAS, pursuant to that certain Residual Assets Assignment dated as of
June 1, 1994 (the "Residual Assets Assignment"), made by Green Tree in favor of
Finance I and Finance II, Green Tree has transferred the Residual Assets (as
defined in such Residual Assets Assignment) to Finance I and Finance II.
WHEREAS, pursuant to that certain Transfer Agreement dated as of June 1,
1994 (the "Transfer Agreement"), among Finance I, Finance II and the Trust,
Finance I and Finance II have transferred the Residual Assets to the Trust.
WHEREAS, Finance I has issued to the Trust that certain Limited Recourse
Note dated July 1, 1994, payable solely from collections on the Guarantee Fee.
WHEREAS, pursuant to the Guarantee Fee Assignment and the Residual Assets
Assignment, Green Tree, in its capacity as Servicer of the Contracts, has agreed
to enter into this Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, Green Tree and the Trust agree as provided herein:
<PAGE>
ARTICLE I
REPORTS AND TAX MATTERS
1.01 Monthly Reports.
(a) No later than three business days prior to each Distribution Date, the
Servicer shall deliver to the Trustee, the Administrator, the Paying Agent (if
different from the Administrator) and to the Rating Agency, a "Monthly Report"
with respect to the Senior Certificates substantially in the form of Exhibit A
attached hereto.
(b) No later than three business days prior to each Distribution Date, the
Servicer shall deliver to the Trustee and the Administrator copies of each
"Monthly Report" prepared by it with respect to each of the Securitized Pools
giving rise to the Guarantee Fee and the Residual Assets.
1.02 Annual Report of Accountants. On or before May 1 of each year,
commencing May 1, 1995, the Servicer at its expense shall cause a firm of
independent public accountants which is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Trustee to the effect
that such firm has examined certain documents and records relating to the
servicing of manufactured housing conditional sales contracts under pooling and
servicing agreements substantially similar one to another (such statement to
have attached thereto a schedule setting forth the pooling and servicing
agreements covered thereby including at least one of the Securitized Pools), and
relating to the servicing reports generated pursuant to this Agreement, and
that, on the basis of such examination, conducted substantially in compliance
with generally accepted auditing standards, such servicing has been conducted in
compliance with such pooling and servicing agreements, except for such
significant exceptions or errors in records that, in the opinion of such firm,
generally accepted auditing standards requires it to report. The Servicer shall
also furnish a copy of such Annual Report of Accountants to the Rating Agency.
ARTICLE II
MISCELLANEOUS
2.01 Survival of Representations and Warranties. Each party hereto
covenants and agrees that its representations and warranties in this Agreement,
and in any document delivered or to be delivered pursuant hereto, shall survive
the date hereof.
2.02 Notices. All notices and other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and delivered or mailed to the parties hereto at the appropriate
following address:
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<PAGE>
(a) If to Green Tree, to:
Green Tree Financial Corporation
1100 Landmark Towers
345 St. Peter Street
St. Paul, MN 55102-1639
Attention: Chief Financial Officer
Telecopier Number: (612) 293-5746
(b) If to the Trustee, to:
Wilmington Trust Company
Attention: Corporate Trust Administration
Rodney Square North
1100 North Market Square
Wilmington, DE 19890-0001
Telecopier Number: (302) 651-8882
(c) If to the Administrator/Paying Agent, to:
First Trust National Association
Attention: Corporate Trust Administration, Second Floor
180 East 5th Street, Second Floor
St. Paul, MN 55101
Telecopier Number: (612) 244-0089
(d) If to the Rating Agency, to:
Fitch Investors Services, Inc.
One State Street Plaza
New York, NY 10004
or to such other address as Green Tree, the Trustee, the Administrator/Paying
Agent or the Rating Agency shall have specified to the others in writing.
2.03 Amendment and Waiver. This Agreement may be amended or modified, and
any of the terms or conditions hereof may be waived, only by a written
instrument executed by Green Tree or the Trustee, as applicable, or in the case
of a waiver, by the party waiving compliance. Any waiver by any party of any
condition, or of the breach of any provision, term, covenant, representation or
warranty contained in this Agreement, in any one or more instances, shall not be
deemed or construed as further or continuing waiver or any such condition, or of
the breach of any other provision, term, covenant, representation or warranty of
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<PAGE>
this Agreement. Green Tree shall mail notice of any such amendment or waiver to
the Rating Agency.
2.04 Assignment. This Agreement and all of the provisions hereof will be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, except that neither this Agreement nor any of
the rights, interests or obligations hereunder may be assigned by any party
hereto without the prior written consent of the other parties hereto.
2.05 Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
2.06 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter hereof. The invalidity
of any provision hereof shall not affect the validity of any other provision.
2.07 Binding Effect. This Agreement and all the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties hereto and
their respective successors and assigns, any rights, obligations, remedies or
liabilities.
2.08 Headings. The headings herein are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
2.09 Governing Law. The internal law, without regard to conflicts of laws
principles, of the State of Minnesota will govern all questions concerning the
construction, validity and interpretation of this Agreement and the performance
of the obligations imposed by this Agreement.
2.10 Non-Petition Covenant. Green Tree hereby agrees that it shall not,
for any reason, institute proceedings for the Trust to be adjudicated bankrupt
or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against the Trust, or file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating to
the bankruptcy of the Trust, or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Trust or a substantial part of the property of the Trust or cause or permit the
Trust to make any assignment for the benefit of creditors, or admit in writing
the inability of the Trust to pay its debts generally as
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<PAGE>
they become due, or declare or effect a moratorium on the debt of the Trust or
take any action in furtherance of any such action.
2.11 Limitation of Trustee's Liability. Notwithstanding anything
contained herein to the contrary, this instrument has been countersigned by
Wilmington Trust Company not in its individual capacity but solely in its
capacity as Trustee of the Trust and in no event shall Wilmington Trust Company
in its individual capacity, or any beneficial owner of the Trust, have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Trust hereunder, as to all of which recourse shall be had
solely to the assets of the Trust. For all purposes of this Agreement, in the
performance of any duties or obligations of the Trust hereunder, the Trustee
shall be subject to, and entitled to the benefits of, the terms and provisions
of Articles VI, VII and VIII of the Trust Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
GREEN TREE FINANCIAL CORPORATION,
AS SERVICER
By _______________________________
Its __________________________
GREEN TREE SECURITIZED NET
INTEREST MARGIN TRUST 1994-B
By Wilmington Trust Company,
not in its individual capacity but solely
as Trustee
By _______________________________
Its __________________________
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<PAGE>
EXHIBIT A
FORM OF MONTHLY REPORT
GREEN TREE FINANCIAL NET INTEREST MARGIN TRUST 1994-B
7.85% SECURITIZED NET INTEREST MARGIN CERTIFICATES
Distribution Date: ________
Securitized Net Interest Margin Certificates
- - --------------------------------------------
1. Amount Available
Interest
2. Aggregate Interest
3. Amount Applied to:
(a) accrued but unpaid interest
4. Remaining:
(a) accrued but unpaid interest
5. Monthly Interest
Principal
6. Current month's principal distribution
7. Remaining outstanding principal balance
8. Present value of the Projected remaining
aggregate cashflows of the Finance I Assets
and the Residual Assets, as of the immediately
preceding Distribution Date
9. Aggregate principal balance of loans
refinanced by Green Tree Financial
10. Weighted average CPR
11. Weighted average CDR
12. Annualized net loss percentage
13. Delinquency 30-59 day
60-89 day
90+ day
Total 30+
A-1
<PAGE>
Green Tree Financial Net
Interest Margin Trust 1994-B
Total amount of Guarantee Fee, payment and related
Inside Refinance Payments ________
Payment on Finance I Note ________
Allocable to Interest (current) ________
Allocable to accrued but unpaid interest ________
Accrued and unpaid Trustee Fees ________
Allocable to Principal ________
Finance I Note Principal Balance ________
A-2
<PAGE>
Green Tree Financial Net
Interest Margin Trust 1994-B
Inside
Residual Refi Total
--------------------------------
GTFC 1994-1
GTFC 1994-2
GTFC 1994-3
GTFC 1994-4
--------------------------------
Total Residual and Inside
Refinance Payments -----------
A-3
<PAGE>
EXHIBIT 4.7
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement"), dated as of July 27, 1994, is
made and entered into between Green Tree Manufactured Housing Net Interest
Margin Finance Corp. I, a Delaware corporation ("Finance I"), and Green Tree
Securitized Net Interest Margin Trust, 1994-B, a Delaware business trust (the
"Trust"), created pursuant to a Trust Agreement dated as of June 1, 1994 (the
"Trust Agreement"), among Finance I, Green Tree Manufactured Housing Net
Interest Margin Finance Corp. II, a Delaware corporation ("Finance II"), and
Wilmington Trust Company, a Delaware banking corporation, as Trustee (the
"Trustee").
WHEREAS, pursuant to a Guarantee Fee Assignment made by Green Tree
Financial Corporation, a Minnesota corporation ("Green Tree") in favor of
Finance I, dated as of June 1, 1994 (the "Guarantee Fee Assignment"), Finance I
is the owner of the right to receive the Guarantee Fee (all terms defined in the
Guarantee Fee Assignment or the Trust Agreement shall have the same meaning in
this Agreement).
WHEREAS, Finance I has issued to the Trust a limited recourse note dated
July 27, 1994, in the amount of $34,700,000 (the "Finance I Note").
WHEREAS, the Finance I Note is payable solely from the Guarantee Fee and
certain rights that Finance I holds under the Guarantee Fee Assignment, and
Finance I wishes to grant to the Trust a security interest in the Guarantee Fee
and such related rights to secure the full and timely payment of the Finance I
Note.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Finance I hereby
agrees as follows for the benefit of the Trust:
ARTICLE I
SECURITY INTEREST
1.01 Grant of Security Interest. Finance I hereby grants to the Trust a
security interest in the collateral described in Section 1.02 (the "Collateral")
and the proceeds therefrom to secure payment to the Trust of all of Finance I's
liabilities and indebtedness to the Trust under the Finance I Note, whether such
liabilities or indebtedness are due or to become due, absolute or contingent,
joint or several, now existing or hereafter arising (the "Secured Obligations").
<PAGE>
1.02 Description of Collateral. The collateral shall consist of (i)
the Guarantee Fee and (ii) Finance I's right to receive Inside Refinancing
Payments and Repurchase Payments under the Guarantee Fee Assignment.
1.03 Collections on Guarantee Fee. Finance I will instruct the Trustee
of the 1994-1 Securitized Pool to pay the Guarantee Fee directly to the Trust,
by a written notification in the form of Exhibit A hereto.
1.04 Obligations of Finance I. During the term of this Agreement,
Finance I will comply with each of the following covenants and commitments:
(a) Records and Inspections. Finance I will keep accurate books,
records and accounts with respect to the Collateral, and will make the same
available to the Trust at its request for examination during normal business
hours; and
(b) Maintenance of Security Interest. Finance I will at any time or
times hereafter execute such financing statements and other instruments and
perform such acts as the Trust may request to establish and maintain a valid
security interest in the Collateral, and will pay all costs of filing and
recording.
1.05 No Trust Liability on Collateral. It is understood that the Trust
does not in any way assume any of Finance I's obligations under any of the
Collateral. Finance I hereby agrees to indemnify the Trust against all
liability arising in connection with or on account of any of the Collateral,
except for any liabilities arising on account of the Trust's gross negligence or
willful misconduct.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF FINANCE I
Finance I hereby represents and warrants to the Trust that:
2.01 Finance I. Finance I is a corporation duly organized, validly
existing and in good standing under the laws of Delaware, with the requisite
corporate power and authority to enter into this Agreement and to perform the
obligations required of it hereunder. The execution and performance of this
Agreement by Finance I and the consummation of the transactions contemplated
hereby will not violate any provision of law applicable to Finance I, and do not
and will not conflict with any of the terms of its Certificate of Incorporation
or By-Laws. The execution and performance of this Agreement will not conflict
with any material agreements of Finance I that would result in a material
adverse effect on Finance I.
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2.02 Title to the Collateral. Finance I is the sole owner of the
Guarantee Fee and the related rights described in Section 1.02, free and clear
of all liens and encumbrances (other than the lien created by this Agreement).
ARTICLE III
DEFAULT
3.01 Rights upon an Event of Default. If the Finance I Note has been
declared due and payable following an Event of Default, the Trustee or
Certificate Owners beneficially owning at least 25% of the aggregate outstanding
principal amount of the Senior Certificates may liquidate all or any portion of
the Collateral, or may elect to maintain possession of the Collateral and
continue to apply collections from the Collateral as if there had been no
declaration of acceleration; provided, however, the Trustee will be prohibited
from selling the Collateral following an Event of Default, unless:
(a) the proceeds of such sale are sufficient to pay in full the principal
of and the accrued interest on the Finance I Note at the time of such sale; or
(b) the Trustee determines that the collections on the Collateral will not
be sufficient on an ongoing basis to make all payments of interest on the
Finance I Note as such payments become due and to pay the outstanding principal
amount of the Finance I Note at maturity, and the Trustee obtains the consent of
Certificate Owners beneficially owning 66 2/3% of the aggregate outstanding
amount of the Senior Certificates.
3.02 Distributions. If the Trustee collects any money or property
pursuant to this Article III, the Trustee shall pay out the money or property in
the following order:
(a) first, all accrued and unpaid interest on the Finance I Note;
(b) second, the outstanding principal amount of the Finance I Note; and
(c) third, any remaining money or property shall be distributed to
Finance I.
ARTICLE IV
MISCELLANEOUS
4.01 Survival of Representations and Warranties. Each party hereto
covenants and agrees that its representations and warranties in this Agreement,
and
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in any document delivered or to be delivered pursuant hereto, shall survive the
date hereof.
4.02 Notices. All notices and other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and delivered or mailed to the parties hereto at the appropriate
following address:
(a) If to Finance I, to:
Green Tree Manufactured Housing Net Interest Margin
Finance Corp. I
Registered Agent: The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
Telephone Number: (302) 658-7581
Telecopier Number: (302) 655-5049
(b) If to the Trust, to:
Green Tree Securitized Net Interest Margin Trust, 1994-B
In care of Wilmington Trust Company
Attention: Corporate Trust Administration
Rodney Square North
1100 North Market Square
Wilmington, DE 19890-0001
Telephone Number: (302) 651-8653
Telecopier Number: (302) 651-8882
(c) If to the Rating Agency, to:
Fitch Investors Services, Inc.
One State Street Plaza
New York, NY 10004
or to such other address as Finance I, the Trust or the Rating Agency shall have
specified to the others in writing.
4.03 Amendment and Waiver. This Agreement may be amended or modified,
and any of the terms, covenants, representations, warranties or conditions
hereof may be waived, only by a written instrument executed by the Trust and
Finance I,or in the case of a waiver, by the party waiving compliance. Any
waiver by any party of any condition, or of the breach of any provision, term,
covenant, representation or warranty contained in this Agreement, in any one or
more instances, shall not be deemed or construed as further or continuing waiver
of any
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such condition, or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement. Finance I shall mail notice of
any such amendment or waiver to the Rating Agency.
4.04 Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
4.05 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter hereof. The invalidity
of any provision hereof shall not affect the validity of any other provision.
4.06 Binding Effect. This Agreement and all the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties hereto and
their respective successors and assigns, any rights, obligations, remedies or
liabilities.
4.07 Headings. The headings herein are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
4.08 Governing Law. The internal law, without regard to conflicts of laws
principles, of the State of Minnesota will govern all questions concerning the
construction, validity and interpretation of this Agreement and the performance
of the obligations imposed by this Agreement.
4.09 Non-Petition Covenant. Finance I hereby agrees that it shall not,
for any reason, institute proceedings for the Trust to be adjudicated bankrupt
or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against the Trust, or file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating to
the bankruptcy of the Trust, or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Trust or a substantial part of the property of the Trust or cause or permit the
Trust to make any assignment for the benefit of creditors, or admit in writing
the inability of the Trust to pay its debts generally as they become due, or
declare or effect a moratorium on the debt of the Trust or take any action in
furtherance of any such action.
4.10 Limitation of Trustee's Liability. Notwithstanding anything
contained herein to the contrary, this instrument has been countersigned by
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Wilmington Trust Company not in its individual capacity but solely in its
capacity as Trustee of the Trust and in no event shall Wilmington Trust Company
in its individual capacity, or any beneficial owner of the Trust, have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Trust hereunder, as to all of which recourse shall be had
solely to the assets of the Trust. For all purposes of this Agreement, in the
performance of any duties or obligations of the Trust hereunder, the Trustee
shall be subject to, and entitled to the benefits of, the terms and provisions
of Articles VI, VII and VIII of the Trust Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
GREEN TREE MANUFACTURED
HOUSING NET INTEREST MARGIN
FINANCE CORP. I
By ________________________________
Its ____________________________
GREEN TREE SECURITIZED NET
INTEREST MARGIN TRUST 1994-B
By Wilmington Trust Company, not in its
individual capacity but solely as Trustee
By ________________________________
Its ____________________________
Acknowledged by: GREEN TREE FINANCIAL CORPORATION
By ________________________________
Its ____________________________
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EXHIBIT A
FORM OF TRUSTEE NOTIFICATION
FOR SECURITY AGREEMENT
First Bank National Association
Corporate Trust Department
180 East 5th Street
St. Paul, Minnesota 55101
Attention: Corporate Trust Administration, Second Floor
Ladies and Gentlemen:
You are currently acting as Trustee under a Pooling and Servicing Agreement
dated as of March 1, 1994 between Green Tree Financial Corporation ("Green
Tree"), as Seller and Servicer, and you, as Trustee (the "1994-1 Pooling and
Servicing Agreement"). As such Trustee, and pursuant to a notification
previously delivered to you by Green Tree, you are obligated to remit to Green
Tree Manufactured Housing Net Interest Margin Finance Corp. I the Guarantee Fee
(as defined in the 1994-1 Pooling and Servicing Agreement) payable to Green Tree
on or after July 15, 1994. We hereby notify you that we have pledged such
Guarantee Fee to Green Tree Securitized Net Interest Margin Trust 1994-B (the
"Trust"), effective July 27, 1994. From that date forward you should remit such
Guarantee Fee to the Trust.
Green Tree Manufactured Housing
Net Interest Margin Finance Corp. I
By _________________________________
Its _____________________________
Acknowledged:
First Bank National Association
By _____________________________
Its _________________________
<PAGE>
EXHIBIT 4.8
ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT, dated as of June 1, 1994, among GREEN TREE
SECURITIZED NET INTEREST MARGIN TRUST 1994-B, a Delaware business trust (the
"Trust"), FIRST TRUST NATIONAL ASSOCIATION (the "Administrator"), and WILMINGTON
TRUST COMPANY, a Delaware banking corporation, not in its individual capacity
but solely as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Trust is issuing 7.85% Securitized Net Interest Margin
Certificates (the "Senior Certificates") and Subordinated Certificates (the
"Subordinated Certificates") pursuant to a Trust Agreement, dated as of June 1,
1994 (as amended and supplemented from time to time, the "Trust Agreement"),
among GREEN TREE MANUFACTURED HOUSING NET INTEREST MARGIN FINANCE CORP. I
("Finance I"), GREEN TREE MANUFACTURED HOUSING NET INTEREST MARGIN FINANCE CORP.
II ("Finance II") and the Trustee (capitalized terms not defined herein shall
have the meanings assigned to them in the Trust Agreement);
WHEREAS, the Trust has entered into certain agreements in connection with
the issuance of the Senior Certificates and Subordinated Certificates, including
(i) the Trust Agreement; (ii) a transfer agreement, dated as of June 1, 1994
among Finance I, Finance II and the Trust (the "Transfer Agreement"); (iii) a
security agreement dated as of July 27, 1994, between Finance I and the Trust
(the "Security Agreement"), granting to the Trust a security interest in certain
collateral to secure a limited recourse note dated July 27, 1994, issued by
Finance I to the Trust (the "Finance I Note"); (iv) a servicing agreement, dated
as of June 1, 1994, between the Trust and GREEN TREE FINANCIAL CORPORATION
("Green Tree"), as Servicer (the "Servicing Agreement"); (v) a depository
agreement among the Trust, the Administrator and The Depository Trust Company,
as the initial Depository, dated as of the Closing Date (the "Depository
Agreement"); and (vi) an underwriting agreement, dated July 20, 1994, among
Green Tree, Finance I, Finance II and the underwriters of the Senior
Certificates (the "Underwriting Agreement") (collectively the "Related
Agreements");
WHEREAS, the Related Agreements require the Trust and the Trustee to
perform certain duties in connection with the Senior Certificates and the
Subordinated Certificates;
WHEREAS, the Trust and the Trustee desire to have the Administrator perform
certain of the duties referred to in the preceding clause, and to provide such
additional services consistent with the terms of this Agreement and the Related
Agreements as the Trust and the Trustee may from time to time request; and
<PAGE>
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Trust and the
Trustee on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator.
(a) Duties with Respect to the Trust Agreement.
(i) The Administrator agrees to perform all its duties as Administrator
under the Trust Agreement. The Administrator shall monitor the Trust's
performance, and shall notify the Trustee when action is necessary to comply
with the Trust's duties under the Trust Agreement. The Administrator shall
prepare or cause other appropriate persons to prepare for execution by the
Trust, all documents, reports, filings, instruments, certificates and opinions
that it shall be the Trust's duty to prepare, file or deliver pursuant to the
Trust Agreement. In furtherance of the foregoing, the Administrator shall take
all actions that it is the Trust's duty to take pursuant to the Trust Agreement
including, without limitation, all actions required with respect to the
following matters under the Trust Agreement (references are to sections of the
Trust Agreement):
(A) the preparation of the Certificates for execution by the
Trustee (Section 3.3);
(B) the preparation of or obtaining of the documents and
instruments required for authentication of the Certificates and delivery of
the same to the Trustee (Section 3.5);
(C) the duty to cause the Certificate Register to be kept and to
give the Trustee notice of any appointment of a new Certificate Registrar
and the location, or change of location, of the Certificate Register
(Section 3.6(a));
(D) the issuance of authenticated new Certificates upon surrender
for transfer of Certificates (Section 3.6(b)), including ensuring that the
Certificate surrendered is accompanied by an acceptable written instrument
of transfer (Section 3.6(d));
(E) the notification of Certificate Owners that the Depository is
no longer willing or able properly to discharge its responsibilities as
Depository, and the issuance of Definitive Certificates to Certificate
Owners who request them (Section 3.6(h));
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(F) the delivery to the Depository of the typewritten Senior
Certificate registered in the name of the Depository's nominee, Cede & Co.
(Section 3.6(i));
(G) the preparation of replacement Certificates for ones
mutilated, destroyed, lost or stolen (Section 3.7);
(H) the duty to furnish the Depositor with a list of the names and
addresses of the Senior Certificateholders as of the most recent Record Date
for the payment of distributions, and to provide Senior Certificateholders
with access to a current list of Senior Certificateholders (Section 3.9);
(I) the maintenance of an office or agency where Certificates may
be surrendered for registration of transfer or exchange, and where notices
and demands to or upon the Trustee in respect of the Certificates and the
Related Documents may be served (Section 3.10);
(J) the establishment and maintenance of the Certificate Account
(Section 5.1(a));
(K) the establishment of a new Certificate Account if the prior
one ceases to be an Eligible Account (Section 5.1(b));
(L) the duty to invest amounts in the Certificate Account in
Eligible Investments (Section 5.1(c));
(M) the distribution to Certificateholders of amounts deposited in
the Certificate Account on each Distribution Date, in accordance with the
priorities listed in the Trust Agreement (Sections 5.2(a)-(c));
(N) the distribution of the Servicer's report to holders of Senior
Certificates and to Green Tree (if Green Tree is not the Servicer) (Section
5.2(d));
(O) the provision of reports to the Rating Agency and to the
Subordinated Certificateholders (Section 5.2(e));
(P) the mailing of written notices to the Senior
Certificateholders in the event of prepayment of the Senior Certificates
(Sections 5.6(c)-(d));
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(Q) the provision to the Certificate Owners upon receipt of
written request of duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and other instruments furnished
to the Trustee under the Related Documents (Section 7.2); and
(R) the duty to make distributions following a default in
accordance with the priorities listed in the Trust Agreement (Section 9.3).
(b) Duties with Respect to the Security Agreement.
The Administrator agrees to perform all its duties as Administrator
under the Security Agreement. The Administrator shall monitor the Trust's
performance, and shall notify the Trustee when action is necessary to comply
with the Trust's duties under the Security Agreement. The Administrator shall
prepare for execution by the Trust, or shall cause other appropriate persons to
prepare, all documents, reports, filings, instruments, certificates and opinions
that it shall be the Trust's duty to prepare, file or deliver pursuant to the
Security Agreement. In furtherance of the foregoing, the Administrator shall
take all actions that it is the Trust's duty to take pursuant to the Security
Agreement including, without limitation, paying out money or property that the
Trustee collects following a declaration of default, in the order specified in
the Security Agreement (Section 3.02 of the Security Agreement).
(c) Duties with Respect to the Depository Agreement. The Administrator
agrees to perform all its duties as Administrator under the Depository
Agreement. The Administrator shall monitor the Trust's performance, and shall
notify the Trustee when action is necessary to comply with the Trust's duties
under the Depository Agreement. The Administrator shall prepare for execution
by the Trust, or shall cause other appropriate persons to prepare, all
documents, reports, filings, instruments, certificates and opinions that it
shall be the Trust's duty to prepare, file or deliver pursuant to the Depository
Agreement. In furtherance of the foregoing, the Administrator shall take all
actions that it is the Trust's duty to take pursuant to the Depository
Agreement.
(d) Additional Duties.
(i) In addition to the duties of the Administrator set forth
above, the Administrator shall perform such calculations and shall prepare or
cause other appropriate persons to prepare, for the Trust or the Trustee to
execute, all documents, reports, filings, instruments, certificates and opinions
that it shall be the duty of the Trust or the Trustee to prepare, file or
deliver pursuant to the Related Agreements. In addition, effective upon the
Administrator's receipt of the Trustee's written request, the Administrator
shall take any other action that it is the duty of the Trust or the Trustee to
take pursuant to the Related Agreements. In furtherance thereof, upon request
of the Administrator, the Trustee shall, on behalf of itself and
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of the Trust, execute and deliver to the Administrator and to each successor
Administrator appointed pursuant to the terms hereof, one or more powers of
attorney appointing the Administrator the attorney-in-fact of the Trustee and
the Trust for the purpose of executing on behalf of the Trustee and the Trust
all such documents, reports, filings, instruments, certificates and opinions.
(ii) Notwithstanding anything in this Agreement or the Related Agreements
to the contrary, the Administrator shall be responsible for promptly notifying
the Trustee in the event that any withholding tax is imposed on the Trust's
payments (or allocations of income) to a Certificateholder. Any such notice
shall specify the amount of withholding tax that the Trustee may withhold
pursuant to Section 5.2(c) of the Trust Agreement.
(iii) Notwithstanding anything in this Agreement or the Related Agreements
to the contrary, the Administrator shall be responsible for performance of the
duties of the Administrator set forth in Sections 5.5(b) and 5.5(c) of the Trust
Agreement with respect to, among other things, accounting and reports to
Certificateholders;
(iv) The Administrator shall satisfy its obligations with respect to
clauses (ii) and (iii) above by retaining, at the expense of Green Tree, a firm
of independent public accountants (the "Accountants") acceptable to the Trustee
which shall perform the obligations of the Administrator thereunder.
(v) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Administrator may enter into transactions with or
otherwise deal with any of its affiliates; provided, however, that the terms of
any such transactions or dealings shall be in accordance with any directions
received from the Trust and shall be, in the Administrator's opinion, no less
favorable to the Trust than would be available from unaffiliated parties.
(e) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not take any action
unless within a reasonable time before the taking of such action, the
Administrator shall have notified the Trustee of the proposed action and the
Trustee shall not have withheld consent or provided an alternative direction.
For the purpose of the preceding sentence, "non-ministerial matters" shall
include, without limitation:
(A) the amendment of or any supplement to the Trust Agreement;
(B) the declaration of an Event of Default under the Trust Agreement;
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(C) the declaration of an Event of Default under the Finance I Note:
(D) the election of remedies following an Event of Default under the
Trust Agreement;
(E) the election of remedies following an Event of Default under the
Finance I Note;
(F) the initiation of any claim or lawsuit by the Trust and the
compromise of any action, claim or lawsuit brought by or against the Trust;
(G) the amendment, change or modification of the Related Agreements;
and
(H) the appointment of successor Certificate Registrars or successor
Paying Agents pursuant to the Trust Agreement, the appointment of successor
Administrators or successor Servicers, or the consent to the assignment by
the Certificate Registrar, Paying Agent or Trustee of its obligations under
the Trust Agreement.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) liquidate any part
of the Trust Property pursuant to Section 9.2(b) of the Trust Agreement or (y)
take any other action that the Trust directs the Administrator not to take on
its behalf.
2. Limitation of Liability. The Administrator shall not be answerable,
accountable or liable under this Agreement, the Trust Agreement or any Related
Documents under any circumstances, except (i) for its own willful misconduct or
gross negligence or (ii) for taxes, fees or other charges based on or measured
by any fees, commissions or compensation received by the Trustee in connection
with any of the transactions contemplated by this Agreement, the Trust Agreement
or any Related Document. In particular, but not by way of limitation (and
subject to the exceptions set forth in the preceding sentence):
(a) the Administrator shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Administrator;
(b) the Administrator shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the instructions
of the Trustee;
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(c) no provision of this Agreement or any Related Document shall require
the Administrator to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder or under
the Trust Agreement or any Related Document if the Administrator shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) under no circumstances shall the Administrator be liable for
indebtedness evidenced by or arising under any of the Related Documents;
(e) the Administrator shall not be liable for the default or misconduct of
the Trustee, Finance I, Finance II, Green Tree or the Servicer under any of the
Related Documents or otherwise, and the Administrator shall have no obligation
or liability to perform the obligations of the Trustee under the Trust
Agreement, unless specifically accepted herein or otherwise in writing, or by
Finance I or Finance II under the Transfer Agreements or by the Servicer under
the Servicing Agreement;
(f) the Administrator shall not be responsible for or in respect of the
form, character, genuineness, sufficiency, value or validity of any of the Trust
Property and shall in no event assume or incur any liability, duty or obligation
to Finance I, Finance II, or any Certificate Owner except as expressly provided
in this Agreement;
(g) the Administrator shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, the Trust Agreement or any
Related Document, or to institute, conduct or defend any litigation under the
Agreement or otherwise or in relation to the Agreement or any Related Document,
which the Trustee has undertaken at the request, order or direction of the
Subordinated Certificateholders, unless the Subordinated Certificateholders or
the Trustee have offered to the Administrator security or indemnity satisfactory
to it against the costs, expenses and liabilities that may be incurred by the
Administrator therein or thereby. The right of the Administrator to perform any
discretionary act enumerated in this Agreement, the Trust Agreement or in any
Related Document shall not be construed as a duty, and the Administrator shall
not be answerable for other than its gross negligence or willful misconduct in
the performance of any such act.
3. Reliance; Advice of Counsel.
(a) The Administrator shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Administrator
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution
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has been duly adopted by such body and that the same is in full force and
effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Administrator may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer or other authorized officers of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to the
Administrator for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise of administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement, the Trust
Agreement or the Related Documents, the Administrator (i) may act directly or
through its agents or attorneys pursuant to agreements entered into with any of
them, and the Administrator shall not be liable for the conduct or misconduct of
such agents or attorneys if such agents or attorneys shall have been selected by
the Administrator with reasonable care, and (ii) may consult with counsel,
accountants and other skilled persons to be selected with reasonable care and
employed by it. The Administrator shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the written opinion
or advice of any such counsel, accountants or other such persons and not
contrary to this Agreement, the Trust Agreement or any Related Document.
4. Not Acting in Individual Capacity. Except as provided in Section 2,
hereof, in accepting the duties of the Administrator under this Agreement, First
Trust National Association acts solely as an agent of the Trust and not in its
individual capacity and all Persons having any claim against the Administrator
by reason of the transactions contemplated by this Agreement or the Trust
Agreement or any Related Document shall look only to the Trust Property for
payment or satisfaction thereof.
5. Administrator Not Liable for Certificates or Related Documents. The
recitals contained herein and in the Certificates (other than the signature and
counter-signature of the Authenticating Agent on the Certificates) shall be
taken as the statements of the Depositor and the Administrator assumes no
responsibility for the correctness thereof. The Administrator makes no
representations as to the validity or sufficiency of this Agreement, of any
Related Document or of the Certificates (other than the signature and counter-
signature of the Authentication Agent on the Certificates), or of the Guarantee
Fee or the Residual Assets or any related documents with respect to the
Guarantee Fee or the Residual Assets and the Administrator shall in no event
assume or incur any liability, duty or obligation to any person other than as
expressly provided for herein. The Administrator shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of the Guarantee Fee, the Residual Assets or other Trust Property
or for or with respect to the sufficiency of the Trust Property or its ability
to generate the payments to be distributed to Certificateholders under this
Agreement, including, without limitation: the validity of the assignment of the
Guarantee Fee and the Residual Assets to Finance I and Finance II or the
issuance of the Finance I
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Note to the Trust and the assignment of the Residual Assets to the Trust, or of
any intervening assignment, or the accuracy of any such warranty or
representation or any action of Finance I or Finance II taken in the name of the
Trustee.
6. Records. The Administrator shall maintain appropriate books of account
and records relating to services performed hereunder. These books of account
and records shall be accessible for inspection by the Trust at any time during
normal business hours.
7. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to such fees and
expenses as agreed to in the Letter Agreement between the Administrator and
Green Tree, accepted as of July 27, 1994, payable monthly, which shall be solely
an obligation of Green Tree. In addition, the Administrator shall be entitled
to be reimbursed by Green Tree for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Administrator may employ in
connection with the exercise and performance of its rights and its duties
hereunder; provided, however, that the Administrator shall only be entitled to
reimbursement for expenses hereunder to the extent such expenses (i) are fees of
outside counsel engaged by the Administrator in respect of the performance of
its obligations hereunder or (ii) relate to the performance of its obligations
pursuant to Section 5.5 of the Trust Agreement.
8. Independence of the Administrator. For all purposes of this Agreement,
the Administrator shall be an independent contractor and shall not be subject to
the supervision of the Trust or the Trustee with respect to the manner in which
it accomplishes the performance of its obligations hereunder. Unless expressly
authorized by the Trust, the Administrator shall have no authority to act for or
represent the Trust or the Trustee in any way and shall not otherwise be deemed
an agent of the Trust or the Trustee.
9. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either the Trust or the Trustee as members of
any partnership, joint venture, association, syndicate, unincorporated business
or other separate entity, (ii) shall be construed to impose any liability as
such on any of them or (iii) shall be deemed to confer on any of them any
express, implied or apparent authority to incur any obligation or liability on
behalf of the others.
10. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the Trust or the Trustee.
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11. Term of Agreement: Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the dissolution of the
Trust, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 11(f) of this Agreement, the Administrator may
resign its duties hereunder by providing the Trust with at least 60 days' prior
written notice.
(c) Subject to Section 11(f) of this Agreement, the Trust may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice, provided, however, that the Trust shall reimburse
the Administrator for expenses incurred by the Administrator with respect to the
Administrator's removal under this Section 11(c).
(d) Subject to Section 11(f) of this Agreement, the Trust may remove the
Administrator immediately by providing the Administrator with written notice of
termination if any of the following events should occur:
(i) the Administrator should default in the performance of any of its
duties under this Agreement and, after notice of such default, should not
cure such default within ten days (or, if such default cannot be cured in
such time, should not give within ten days such assurance of cure as shall
be reasonably satisfactory to the Trust);
(ii) a court having jurisdiction should enter a decree or order for
relief in respect of the Administrator that is not vacated within 60 days in
any involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or should appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
for the Administrator or any substantial part of its property, or should
order the winding-up or liquidation of its affairs; or
(iii) the Administrator should commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, should consent to the entry of an order for relief in an involuntary
case under any such law, or should consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official
for the Administrator or any substantial part of its property, should
consent to any such official taking possession of any substantial part of
its property, should make any general assignment for the benefit of
creditors, or should fail generally to pay its debts as they become due.
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The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 11(d) should occur, it shall give written notice
thereof to the Trust and the Trustee within seven days.
(e) Subject to Section 11(f) of this Agreement, the Administrator may
resign its duties hereunder immediately by providing the Trust with written
notice of resignation if the Administrator's compensation is not paid in a
timely fashion.
(f) No resignation or removal of the Administrator pursuant to this Section
11 shall be effective until (i) the Trust shall have appointed a successor
Administrator and (ii) such successor Administrator shall have agreed in writing
to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(g) Subject to Section 11(f) of this Agreement, the Administrator
acknowledges that upon the appointment of a successor Servicer pursuant to the
Servicing Agreement, the Administrator shall immediately resign and such
successor Servicer shall automatically without further action become the
Administrator under this Agreement.
12. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 11(a) or the
resignation or removal of the Administrator pursuant to Section 11(b), (c) or
(d), the Administrator shall be entitled to be paid all fees and reimbursable
expenses accruing to it to the date of such termination, resignation or removal.
The Administrator shall forthwith upon such termination pursuant to Section
11(a) deliver to the Trust all property and documents of or relating to the
Trust Property and the Fee Assets then in the custody of the Administrator. In
the event of the resignation or removal of the Administrator pursuant to Section
11(b), (c) or (d), the Administrator shall cooperate with the Trust and take all
reasonable steps requested to assist the Trust in making an orderly transfer of
the Administrator's duties.
13. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Trust or the Trustee, to
Green Tree Securitized Net Interest Margin Trust 1994-A
In care of Wilmington Trust Company
Rodney Square North
1100 North Market Square
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Telephone Number: (302) 651-8653
Telecopier Number: (302) 651-8882
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<PAGE>
(b) if to the Administrator, to
First Trust National Association
180 East Fifth Street
St. Paul, MN 55101
Attention: Corporate Trust Administration, Second Floor
Telephone Number: (612) 244-5007
Telecopier Number: (612) 244-0089
(c) if to the Trustee, to
Wilmington Trust Company
Rodney Square North
1100 North Market Square
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Telephone Number: (302) 651-8653
Telecopier Number: (302) 651-8882
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed
given if such notice is mailed by certified mail, postage prepaid, or sent by
telecopy or hand delivered to the address of such party as provided above.
14. Amendments. The Trust, the Administrator and the Trustee, with the
written consent of the Trustee, but without the consent of the
Certificateholders, may amend this Agreement in writing to add provisions to, to
change in any manner or eliminate provisions, or to modify in any manner the
rights of the Certificateholders; provided that such amendment will not, in the
opinion of counsel satisfactory to the Administrator, materially and adversely
affect the interest of any Certificateholder. The Trust, the Administrator and
the Trustee, with the written consent of the Trustee and the holders of Senior
Certificates evidencing at least a majority in the outstanding amount of the
Senior Certificates and the holders of Subordinated Certificates evidencing at
least a majority in Percentage Interest of the Subordinated Certificates, may
also amend this Agreement to add provisions to, or to change in any manner or
eliminate any of the provisions, or to modify in any manner the rights of the
Senior Certificateholders or the Subordinated Certificateholders; provided,
however, that no such amendment, in the opinion of counsel satisfactory to the
Administrator, may (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that are required to be made
for the benefit of the Senior Certificateholders or the Subordinated
Certificateholders or (ii) reduce the aforesaid percentage of the holders of
Senior Certificates and Subordinated Certificates that is required to consent to
any such amendment, without the consent of the holders of all the outstanding
Senior
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Certificates and Subordinated Certificates. The Administrator shall give the
Rating Agency prior notice of any proposed amendment to this Agreement.
15. Successors and Assigns. The Administrator may not assign this
Agreement unless the Trust and the Trustee give prior written consent to such
assignment. Acceptance of an assignment with such consent shall bind the
assignee hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, the Administrator may assign this Agreement
without the consent of the Trust or the Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator, provided that such successor organization executes
and delivers to the Trust and the Trustee an agreement in which such corporation
or other organization agrees to be bound hereunder in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement
shall bind any successors or assigns of the parties hereto.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
17. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
18. Counterparts. This Agreement may be executed in counterparts, each of
which when so executed shall together constitute but one and the same agreement.
19. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
20. Limitation of Trustee's Liability. Notwithstanding anything contained
herein to the contrary, this instrument has been countersigned by Wilmington
Trust Company not in its individual capacity but solely in its capacity as
Trustee of the Trust and in no event shall Wilmington Trust Company in its
individual capacity, or any beneficial owner of the Trust, have any liability
for the representations, warranties, covenants, agreements or other obligations
of the Trust hereunder, as to all of which recourse shall be had solely to the
assets of the Trust. For all purposes of this Agreement, in the performance of
any duties or obligations of the Trust hereunder, the Trustee shall be subject
to, and entitled to the benefits of, the terms and provisions of Articles VI,
VII and VIII of the Trust Agreement.
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21. Non-Petition Covenant. The Administrator hereby agrees that it shall
not, for any reason, institute proceedings for the Trust to be adjudicated
bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against the Trust, or file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating to
the bankruptcy of the Trust, or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Trust or a substantial part of the property of the Trust or cause or permit the
Trust to make any assignment for the benefit of creditors, or admit in writing
the inability of the Trust to pay its debts generally as they become due, or
declare or effect a moratorium on the debt of the Trust or take any action in
furtherance of any such action.
22. Third-Party Beneficiary. The Trust is a third-party beneficiary to
this Agreement and is entitled to the rights and benefits hereunder and may
enforce the provisions hereof as if it were a party hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
GREEN TREE SECURITIZED NET
INTEREST MARGIN TRUST 1994-B
By Wilmington Trust Company, not in
its individual capacity but solely
as Trustee
By: _______________________________
Name:
Title:
WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Trustee
By: _______________________________
Name:
Title:
FIRST TRUST NATIONAL ASSOCIATION,
as Administrator
By: _______________________________
Name:
Title:
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