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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): August 30, 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 is 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 between Green Tree Financial
Corporation and Lehman Brothers Inc., dated
August 30, 1994
4.1 Limited Guarantee Agreement between Green Tree
Financial Corporation and First Bank National
Association, as Trustee, dated as of September 1,
1994
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/ John W. Brink
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John W. Brink
Executive Vice President, Treasurer and
Chief Financial Officer
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INDEX TO EXHIBITS
Exhibit Number
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1.1 Underwriting Agreement between Green Tree Financial
Corporation and Lehman Brothers Inc., dated
August 30, 1994
4.1 Limited Guarantee Agreement between Green Tree
Financial Corporation and First Bank National
Association, as Trustee, dated as of September 1,
1994
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EXHIBIT 1.1
GREEN TREE FINANCIAL CORPORATION, SELLER
Pass-Through Certificates, Series 1993-4
Class B-2
UNDERWRITING AGREEMENT
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August 30, 1994
LEHMAN BROTHERS INC.
Three World Financial Center
New York, New York 10285
Dear Sirs:
Green Tree Financial Corporation (the "Company") is a Minnesota corporation
with its principal place of business in Saint Paul, Minnesota. The Company has
filed a registration statement (the "Class B-2 Registration Statement") on Form
S-11 (File No. 33-51057) relating to the issuance and sale of Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificates, Series 1993-4,
Class B-2 (the "Certificates") evidencing interests in manufactured housing
installment sales contracts and installment loan agreements ("Contracts") and
having aggregate outstanding principal balances of $29,011,584.11 (approximate).
The Company has also filed a registration statement (the "Shelf Registration
Statement") on Form S-3 (File No. 33-53881) relating to the offering of
Manufactured Housing Contract Senior/Subordinate Pass-Through Certificates and
Limited Guarantees of the Company from time to time in accordance with Rule 415
under the Securities Act of 1933 (the "1933 Act"). The Class B-2 Registration
Statement and the Shelf Registration Statement will be referred to collectively
herein as the "Registration Statement". The Certificates have been issued under
a Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") dated
as of December 1, 1993 between the Company, as seller and servicer (the
"Servicer") and First Bank National Association, as trustee (the "Trustee").
The Certificates evidence specified interests in a separate pool of Contracts
(the "Contract Pool") and certain other property held in trust with respect to
the Certificates (the "Trust Fund"). The form of the Pooling and Servicing
Agreement has been incorporated by reference as an exhibit to the Class B-2
Registration Statement and filed as an exhibit to the Shelf Registration
Statement.
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The Certificates are now being offered pursuant to a Prospectus Supplement
dated August 30, 1994 to a prospectus dated December 16, 1993 (relating to the
Class B-2 Registration Statement) and to a prospectus dated August 4, 1994
(relating to the Shelf Registration Statement).
The Certificates are more fully described in the Registration Statement
which the Company has furnished to you. Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement. The term "you" as used herein, unless the context otherwise
requires, shall mean Lehman Brothers Inc.
Each offering of Certificates pursuant to this Agreement will be made
through you. Whenever 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 (the "Underwriter"). The Terms Agreement relating to each offering of
Certificates shall specify, among other things, the principal amount or amounts
of Certificates to be issued, the price at which the Certificates are to be
purchased by the Underwriter from the Company and the initial public offering
price or the method by which the price 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. Each offering of
Certificates will be governed by this Agreement, as supplemented by the
applicable Terms Agreement, and this Agreement and such Terms Agreement shall
inure to the benefit of and be binding upon the Underwriter.
The Company has filed with the Securities and Exchange Commission (the
"Commission") the Registration Statement and has filed, and proposes to file,
such amendments thereto as may have been required to the date hereof pursuant to
the 1933 Act and the rules of the Commission thereunder (the "Regulations").
Such Registration Statement, as amended at the time when it became effective
under the 1933 Act, and each prospectus (collectively referred to herein as 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; provided, however that a
supplement to the Prospectus contemplated by Section 3(a) hereof (a "Prospectus
Supplement") shall be deemed to have supplemented the Prospectus only with
respect to the offering or offerings of Certificates to which it relates.
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SECTION 1. Representations and Warranties. The Company represents and
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warrants to you as of the date hereof, all as of the date of such Terms
Agreement (in each case, the "Representation Date"), as follows:
(1) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective did, and as of the applicable
Representation Date will, comply in all material respects with the
requirements of the 1933 Act and the Regulations. The Registration
Statement at the time it became effective did not, and as of the applicable
Representation Date will not, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus,
as amended or supplemented at the time the Registration Statement became
effective did not, and as amended or supplemented as of the applicable
Representation Date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in, or
omissions from, the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Company in writing
by the Underwriter expressly for use in the Registration Statement or
Prospectus. The conditions to the use by the Company of a registration
statement on Form S-3 and Form S-11 under the 1933 Act, as set forth in the
General Instructions to Form S-3 and Form S-11, have been satisfied with
respect to the Registration Statement, as applicable, and the Prospectus.
There are no contracts or documents of the Company which are required to be
filed as exhibits to the Registration Statement pursuant to the 1933 Act or
the Regulations which have not been so filed.
(2) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Minnesota
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 Limited Guarantee
Agreement and the Terms Agreement, and to continue to perform its
obligations under the Pooling and Servicing Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the ownership or lease of its
properties or the conduct of its business requires such qualification.
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(3) The Company is not in violation of its articles of incorporation
or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or its properties may be bound, which
default might result in any material adverse change in the financial
condition, earnings, affairs or business of the Company or which might
materially and adversely affect the properties or assets thereof.
(4) The execution and delivery by the Company of this Agreement, the
Terms Agreement and the Limited Guarantee Agreement are within the
corporate power of the Company and have been duly authorized by all
necessary corporate action on the part of the Company; and neither the sale
of the Certificates to the Underwriter, nor the issuance of the Limited
Guarantee, nor the execution and delivery by the Company of this Agreement
and the Limited Guarantee Agreement, nor the consummation by the Company of
the transactions therein contemplated, nor compliance by the Company with
the provisions hereof or thereof, will materially conflict with or result
in a material breach of, or constitute a material default under, any of the
provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Company or its properties or the certificate of
incorporation or by-laws of the Company, or any of the provisions of any
indenture, mortgage, contract or other instrument to which the Company is a
party or by which it is bound or result in the creation or imposition of
any lien, charge or encumbrance upon any of its property pursuant to the
terms of any such indenture, mortgage, contract or other instrument.
(5) This Agreement has been, and the Terms Agreement when executed
and delivered as contemplated hereby and thereby will have been, duly
authorized, executed and delivered by the Company, and each constitutes, or
will constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against the Company in accordance with its terms,
subject (i) to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally,
(ii) as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and
(iii) as to enforceability with respect to rights of indemnity thereunder,
to limitations of public policy under applicable securities laws.
(6) The Pooling and Servicing Agreement has been and the Limited
Guarantee Agreement will be duly authorized, executed
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and delivered by the Company, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its terms,
subject (i) to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally and
(ii) as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(7) The Certificates have been duly and validly authorized by the
Company, have been executed and authenticated as specified in the Pooling
and Servicing Agreement, and are validly issued and outstanding and
entitled to the benefits of the Pooling and Servicing Agreement, and are
binding obligations of the trust to the extent provided in the Pooling and
Servicing Agreement.
(8) No filing or registration with, notice to or consent, approval,
authorization or order of any court or governmental authority or agency is
required for the consummation by the Company of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement or the
Terms Agreement, except such as may be required under the 1933 Act, the
Regulations, or state securities or Blue Sky laws.
(9) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by it and as described in the Prospectus and the Company has
received no notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the business,
operations, financial condition or earnings of the Company.
(10) Neither the Company nor the Trust Fund created by the Pooling
and Servicing Agreement have been or will be subject to registration as an
"investment company" under the Investment Company Act of 1940, as amended
(the "1940 Act").
(11) The Certificates, the Pooling and Servicing Agreement, the Terms
Agreement, any Standard Hazard Insurance Policies and the Limited Guarantee
conform in all material respects to the descriptions thereof contained in
the Prospectus.
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SECTION 2. Purchase and Sale. The commitment of the Underwriter to
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purchase Certificates pursuant to any Terms Agreements shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Certificates to be
purchased by the Underwriter 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 a "Closing Time"). Unless otherwise specified in the Terms
Agreement, payment shall be made to the Company, at the option of the Company,
either (a) by certified or official bank check or checks in New York Clearing
House or similar next day funds payable to the order of the Company, or (b) in
immediately available Federal funds wired to such bank as may be designated by
the Company; provided, however, that if payment is made in immediately available
Federal funds if so specified in the Terms Agreement, the Company shall
simultaneously reimburse the Underwriter for the cost to the Underwriter of such
funds, based on the Underwriter's cost of borrowing such funds for one day at
their most favorable commercial paper rate at the Closing Time. Such
Certificates shall be in such denominations and registered in such names as you
may request in writing at least two business days prior to the Closing Time.
Such 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 applicable Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with you and
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the Underwriter participating in the applicable offering of Certificates, as
follows:
(a) Immediately following the execution of the Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of Certificates covered thereby, the price at which the Certificates
are to be purchased by the Underwriter from the Company, 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, any delayed delivery arrangements, and such
other information as you and the Company deem appropriate in connection
with the offering of the Certificates. The Company will promptly transmit
copies of the Prospectus Supplement to the Commission for filing pursuant
to Rule 424 under the 1933 Act and will furnish to the Underwriter as many
copies of the Prospectus
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and such Prospectus Supplement as you shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Certificates by you or the
Underwriter, any event shall occur or condition exist as a result of which
it is necessary, in the opinion of your counsel, counsel for the Company,
or otherwise, to further amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in the light of circumstances existing at the time it is delivered to a
purchaser, not misleading or if it shall be necessary, in the opinion of
any such counsel or otherwise, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the Regulations thereunder, the Company
will promptly prepare and file with the Commission such amendment or
supplement as may be necessary to correct such untrue statement or omission
or to make the Registration Statement comply with such requirements, and
within two business days will furnish to the Underwriter as many copies of
the Prospectus, as so amended or supplemented, as you shall reasonably
request.
(c) The Company will give you reasonable notice of its intention to
file any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act or otherwise
(other than reports to be filed pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act")), will furnish you with copies of any
such amendment or supplement or other documents proposed to be filed a
reasonable time in advance of filing, and will not file any such amendment
or supplement or other documents in a form to which you or your counsel
shall object.
(d) The Company will notify you immediately, and confirm the notice
in writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing
of any supplement to the Prospectus or any document, other than reports to
be filed pursuant to the 1934 Act, (iii) of the receipt of any comments
from the Commission with respect to the Registration Statement, the
Prospectus or any Prospectus Supplement, (iv) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or suspension of the
qualification of the Certificates or the initiation of any
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proceedings for that purpose. The Company will make every reasonable
effort to prevent the issuance of any such stop order or suspension and, if
any such stop order or suspension is issued, to obtain the lifting thereof
at the earliest possible moment.
(e) The Company will deliver to you as many signed and as many
conformed copies of the Registration Statement (as ordinarily filed) and of
each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated by reference in the
Prospectus) as you may reasonably request.
(f) The Company will endeavor, in cooperation with you, to qualify
the 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 Company will file or cause the filing of such statements
and reports as may be required by the laws of each jurisdiction in which
the Certificates have been qualified as above provided.
SECTION 4. Conditions of Underwriter' Obligations. The Obligations of the
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Underwriter to purchase Certificates pursuant to any Terms Agreement are subject
to the accuracy of the representations and warranties on the part of the Company
herein contained, to the accuracy of the statements of the Company's officers
made pursuant hereto, to the performance by the Company of all of its
obligations hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued or
proceedings therefor initiated or threatened by the Commission, (ii) the
Certificates shall have received the rating or ratings specified in the
Terms Agreement, and (iii) there shall not have come to your attention any
facts that would cause you to believe that the Prospectus, together with
the applicable Prospectus Supplement at the time it was required to be
delivered to a purchaser of the 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 the applicable Closing Time you shall have received:
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(1) The favorable opinion, dated as of the Closing Time, of Dorsey &
Whitney, counsel for the Company, as Seller and Servicer of the Contracts,
in form and substance satisfactory to you in connection with the sale of
the Certificates and the issuance of the Limited Guarantee.
Such counsel shall deliver to you such additional opinions addressing the
transfer by the Company to the Trustee of its right, title and interest in and
to the Contracts and other property included in the Trust Fund on the Closing
Time as may be required by each Rating Agency rating the Certificates and any
additional bring-down opinions with respect to the opinions delivered in
connection with the issuance of the Certificates as you may reasonably require.
Such counsel shall state that it has participated in the conferences with
officers and other representatives of the Company, your counsel, representatives
of the independent accountants for the Company and you at which the contents of
the Registration Statement and the Prospectus were discussed and, although such
counsel is not passing upon and does not assume responsibility for, the factual
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except as to statements in the
Prospectus and Prospectus Supplement under the captions "Certain Federal Income
Tax Consequences", "Description of the Certificates" and "Limited Guarantee of
the Company") and has made no independent check or verification thereof for the
purpose of rendering this opinion, on the basis of the foregoing (relying as to
materiality to a large extent upon the certificates of officers and other
representatives of the Company), nothing has come to their attention that leads
such counsel to believe that the Registration Statement, when it became
effective, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Registration Statement and the
Prospectus on the date of the Terms Agreement contained, and the Prospectus on
the date hereof contains, any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that such counsel need express no view with respect to the
financial statements, schedules and other financial, statistical and numerical
data included in or incorporated by reference into the Registration Statement or
the Prospectus.
Said counsel may state that they are admitted to practice only in the State
of Minnesota, that they are not admitted to the Bar in any other State and are
not experts in the law of any other State and to the extent that the foregoing
opinions concern the laws of any other State such counsel may rely upon the
opinion of counsel
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satisfactory to the Underwriter and admitted to practice in such jurisdiction.
Any opinions relied upon by such counsel as aforesaid shall be addressed to the
Underwriter 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 you.
(c) At the applicable Closing Time, you shall have received a
certificate of the President or a Vice President of the Company, dated as
of such Closing Time, to the effect that the representations and warranties
of the Company contained in Section 1 are true and correct with the same
force and effect as though such Closing Time were a Representation Date.
(d) At the applicable Closing Time, you shall have received,
addressed to you, any additional opinions delivered by counsel pursuant to
the request of the Rating Agency or Rating Agencies rating the
Certificates.
(e) At the applicable Closing Time, counsel for the Underwriter shall
have been furnished with such documents and opinions as they reasonably may
require for the purpose of enabling them to pass upon the sale of the
Certificates and the issuance of the Limited Guarantee 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 sale of the Certificates and
the issuance of the Limited Guarantee as herein contemplated shall be
satisfactory in form and substance to you and counsel for the Underwriter.
(f) At the applicable Closing Time, each of the representations and
warranties of the Company set forth in the Pooling and Servicing Agreement
will be true and correct.
(g) As of the applicable Closing Time, any Limited Guarantee will
have been duly and validly authorized, executed and delivered by, and will
constitute a legal, valid and binding obligation of, the provider of such
Limited Guarantee, enforceable 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) As of the applicable Closing Time, the Pooling and Servicing
Agreement will have been duly authorized, executed and delivered by, and
will constitute a legal, valid and binding obligation of, the Servicer,
enforceable against the Servicer 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).
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms Agreement may be
terminated by you by notice to the Company at any time at or prior to the
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
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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 Underwriter,
in such quantities as you may reasonably request, of copies of this Agreement,
each Terms Agreement, any Underwriter's questionnaires and powers of attorney,
(iii) the delivery of the Certificates to the Underwriter, (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
counsel for the Underwriter 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 Underwriter, 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
Underwriter, in such quantities as you may reasonably request, of copies of the
Limited Guarantee 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 incurred with respect to the National
Association of Securities Dealers, Inc., including the fees and disbursements of
counsel for the Underwriter in connection therewith and (xi) the fees and
expenses of the Trustee and its counsel.
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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.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and hold
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harmless the Underwriter and each person, if any, who controls the Underwriter
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
unless such untrue statement or omission or alleged untrue statement
or omission was made in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for
use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, (A)
if such settlement is effected with the written consent of 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 Underwriter, 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
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to defend or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above, which expenses shall be reimbursed as they
are incurred.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have. Insofar as this indemnity may permit
indemnification for liabilities under the 1933 Act of any person who is a
partner of the Underwriter entitled to indemnity hereby or who controls the
Underwriter within the meaning of Section 15 of the 1933 Act and who, at the
date of this Agreement, is a director, officer or controlling person of the
Company, such indemnity agreement is subject to the undertaking of the Company
in the Registration Statement.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each of the Company's directors, each of the Company's officers
who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described in
the indemnity contained in subsection (a) of this Section, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information
furnished to the Company by the Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto). This indemnity agreement will be in
addition to any liability which the Underwriter may otherwise have.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it with respect to which
indemnity may be sought hereunder but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have on account
of this indemnity agreement to the extent such indemnifying party was not
materially prejudiced by such failure or which it may have otherwise than
on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action. In no event
shall the indemnifying parties be liable for the fees and expenses of more
than one counsel (in addition to local counsel) for all indemnified parties
in connection with any one action or separate but
13
<PAGE>
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 Underwriter, 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 the Underwriter (i) in such
proportion as shall be appropriate to reflect the relative benefit received by
the Underwriter, as represented by the percentage that the Underwriting discount
or discounts on the cover of such Prospectus Supplement bears to the initial
public offering price or prices as set forth thereon, and the Company shall be
responsible for the balance; or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the benefit referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriter 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. For purposes of this Section, each person, if any, who
controls the Underwriter within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as the Underwriter and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
termination of this Agreement, or any investigation made by or on behalf of the
Underwriter or controlling person thereof, or by or on behalf of the Company and
shall survive delivery of any Certificates to the Underwriter.
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 may
also terminate any Terms
14
<PAGE>
Agreement, immediately upon notice to the Company, at any time at or prior to
the applicable Closing Time (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information is given in the
Registration Statement or Prospectus any change, or any development involving a
prospective change in, or affecting, the condition, financial or otherwise,
earnings, affairs or business of the Company whether or not arising in the
ordinary course of business, which in your judgment would materially impair the
market for, or the investment quality of, the Certificates, or (ii) if there has
occurred any outbreak or escalation of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States is such as to
make it, in your judgment, impracticable to proceed with the offering or
delivery of the 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 Underwriter own any such Certificates purchased from the Company
pursuant to the applicable Terms Agreement and (B) the covenant set forth in
Section 3(c), the provisions of Section 5, the indemnity agreement set forth in
Section 6, and the contribution provisions set forth in Section 7, and the
provisions of Sections 8 and 13 shall remain in effect.
SECTION 10. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to you at the address set forth on the first page
hereof, attention of the Syndicate Registration Department. Notices to the
Company shall be directed to Green Tree Financial Corporation, 1100 Landmark
Towers, 345 St. Peter Street, Saint Paul, Minnesota 55102-1639, attention of the
Secretary, with a copy to the Treasurer.
SECTION 11. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon you and the Company and any Terms Agreement shall inure to the
benefit of and be binding upon the Company and any Underwriter who becomes a
party to a Terms Agreement, and their respective successors. Nothing expressed
or mentioned in this Agreement or a Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
or thereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives any
15
<PAGE>
legal or equitable right, remedy or claim under or with respect to this
Agreement or a Terms Agreement or any provision herein or therein contained.
This Agreement and any Terms Agreement and all conditions and provisions hereof
or thereof are intended to be for the sole and exclusive benefit of the parties
and their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives (to the extent of their
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.
SECTION 12. 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 13. Counterparts. This Agreement and any Terms Agreement may be
------------
executed in counterparts, each of which shall constitute an original of any
party whose signature appears on it, and all of which shall together constitute
a single instrument.
16
<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:
CONFIRMED AND ACCEPTED, as of
the date first above written:
LEHMAN BROTHERS INC.
By
----------------------------
Name: William E. Lighten
Title: Senior Vice President
17
<PAGE>
EXHIBIT A
---------
GREEN TREE FINANCIAL CORPORATION, SELLER
Manufactured Housing Contract Senior/Subordinate
Pass-Through Certificates, Series 1993-4
Class B-2
TERMS AGREEMENT
---------------
Dated: August 30, 1994
To: Green Tree Financial Corporation, (the "Company")
under the Pooling and Servicing Agreement, dated as of
December 1, 1993 (the "Pooling and Servicing Agreement")
and the Limited Guarantee Agreement, dated as of
September 1, 1994 (the "Limited Guarantee Agreement")
Re: Underwriting Agreement dated August 30, 1994
Series Designation: Manufactured Housing Contract
- - ------------------
Senior/Subordinate Pass-Through Certificates,
Series 1993-4, Class B-2 (Subordinated)
Underwriter:
- - -----------
Lehman Brothers Inc.
Terms of the Certificates:
- - -------------------------
<TABLE>
<CAPTION>
Original
Principal Remittance
Class Amount* Rate
- - ----- --------- ----------
<S> <C> <C>
Class B-2 $ 29,011,584.11 8.55% per annum,
subject to a maximum
rate equal to the
weighted average
of the Contract Rates
on each Contract in the
Contract Pool computed
on the basis of a 360-
day year of twelve 30-
day months
</TABLE>
* Approximate. Subject to permitted variance of plus or minus 5%.
<PAGE>
Certificate Ratings:
- - -------------------
Class B-2: "Baa1" by Moody's Investors Service, Inc. and
"A-" by Fitch Investors Service, Inc.
REMIC Election:
- - --------------
The Company has elected to cause the Trust to be treated as
a REMIC.
Servicer:
- - --------
Green Tree Financial Corporation (in such capacity, the
"Servicer")
Trust:
- - -----
The Trust includes actuarial manufactured housing installment sales
contracts and installment loan agreements (the "Contracts") conveyed by the
Company listed in Exhibit N to the Pooling and Servicing Agreement.
The Trust includes (i) the Contracts, including all rights to receive
payments on the Contracts on and after the Cut-off Date, (ii) the amounts held
from time to time in an interest bearing trust account (the "Certificate
Account") maintained by the Trustee pursuant to the Pooling and Servicing
Agreement, (iii) any property which initially secured a Contract and which is
acquired by repossession, (iv) all standard insurance policies and the proceeds
thereof and (v) all documents contained in the Contract Files, including the
Land-and-Home Contract Files.
Credit Enhancement:
- - ------------------
Limited Guarantee and Subordination of Class C Certificates
to Class B-2 Certificates.
Payment Dates:
- - -------------
The 15th day (or if such day is not a business day, the next
succeeding business day) of each month commencing September 15, 1994.
Purchase Price:
- - --------------
Subject to the terms of the following paragraph, the purchase price
payable by the Underwriter for the Class B-2 Certificates is ___________% of the
principal amount of the Class B-2 Certificates plus accrued interest, if any, at
the Class B-2 Remittance Rate (8.55%; subject to a maximum rate equal to the
weighted average of the Contract Rates on each Contract in the Contract Pool)
from August 15, 1994.
2
<PAGE>
Underwriting Commission:
-----------------------
Notwithstanding anything to the contrary in the Underwriting
Agreement, no additional underwriting commission shall be payable by the Company
to the Underwriter in connection with the purchase of the Certificates.
Public Offering price and/or method of determining price at
which the Underwriter will sell the Certificates:
Class B-2: _________% of $29,011,584.11
Closing Date and Location:
- - -------------------------
On or about September 6, 1994, offices of Brown & Wood, One
World Trade Center, New York, New York.
LEHMAN BROTHERS INC.
By:
----------------------------------
Name: William E. Lighten
Title: Senior Vice President
ACCEPTED:
GREEN TREE FINANCIAL CORPORATION
By:
-------------------------------
Name:
Title:
3
<PAGE>
Exhibit 4.1
LIMITED GUARANTEE AGREEMENT
This Limited Guarantee Agreement, dated as of September 1, 1994, is
executed by and among Green Tree Financial Corporation (the "Company"), as
limited guarantor, and First Bank National Association, as Trustee on behalf of
the Class B-2 Certificateholders (together with its permitted successors under
the Pooling and Servicing Agreement referred to below, the "Trustee").
The Company has previously entered into a Pooling and Servicing Agreement
dated as of December 1, 1993 (the "Pooling and Servicing Agreement") between the
Company, as seller and servicer, and the Trustee, as trustee, pursuant to which
the Certificates, including the Class B-2 Certificates, were issued. The Class
B-2 Certificates were publicly offered and sold in December 1993, but have since
been acquired by the Company.
In order to facilitate the resale of the Class B-2 Certificates, the
Company is now entering into this Agreement.
SECTION 1. Definitions. All capitalized terms not otherwise defined
-----------
herein shall have the meanings assigned to them in the Pooling and Servicing
Agreement. The following terms have the following meanings:
"Guarantee Payment" means, (a) as to any Remittance Date other than the
Final Remittance Date, the amount, if any, by which (i) the Class B-2 Formula
Distribution Amount for such Remittance Date exceeds (ii) the Class B-2
Distribution Amount for such Remittance Date, or (b) in the case of a
distribution on the Final Remittance Date pursuant to the exercise by the
Company or the Servicer of the right to purchase all of the assets of the Trust
pursuant to Section 12.03 of the Pooling and Servicing Agreement, the amount, if
any, by which (i) the Class B-2 Principal Balance (after giving effect to the
distribution made on the Remittance Date next preceding the Final Remittance
Date) plus one month's interest thereon at the Class B-2 Remittance Rate and any
Unpaid Class B-2 Interest Shortfall exceeds (ii) the amount distributable to the
Class B-2 Certificateholders on the Final Remittance Date.
SECTION 2. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants that:
a. Organization and Good Standing. The Company is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its assets
and to transact the business in which it is currently engaged. The Company is
duly qualified to do business as a foreign corporation and is in good standing
in each
<PAGE>
jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on its business,
properties, assets, or condition (financial or other).
b. Authorization; Binding Obligation. The Company has the power and
---------------------------------
authority to make, execute, deliver and perform this Agreement and all of the
transactions contemplated under the Agreement, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement. When executed and delivered, this Agreement will constitute its
legal, valid and binding obligation of the Company enforceable in accordance
with its terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by the availability of equitable remedies.
c. No Consent Required. The Company is not required to obtain the consent
-------------------
of any other party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement.
d. No Violations. The execution, delivery and performance of this
-------------
Agreement by the Company will not violate any provision of any existing law or
regulation or any order or decree of any court or its Articles of Incorporation
or Bylaws, or constitute a material breach of any mortgage, indenture, contract
or other agreement to which it is a party or by which it may be bound.
e. Litigation. No litigation or administrative proceeding of or before
----------
any court, tribunal or governmental body is currently pending, or to its
knowledge threatened, against the Company or any of its properties or with
respect to this Agreement or the Certificates which (i) if adversely determined,
would have a material adverse effect on the transactions contemplated by this
Agreement or (ii) is likely to have a material adverse effect on its financial
condition or business prospects.
SECTION 3. Guarantee Payments.
-------------------
a. On each Determination Date the Servicer shall determine the Guarantee
Payment, if any. No later than 10:00 a.m., St. Paul, Minnesota time on any
Determination Date on which the Servicer has determined that the Guarantee
Payment is greater than zero, the Servicer shall deliver to the Company, with a
copy to the Trustee, a written demand that the Company pay the Guarantee
Payment. Such written demand may be included as part of the Monthly Report
generated by the Servicer pursuant to Section 6.01 of the Pooling and Servicing
Agreement. The
-2-
<PAGE>
Company shall pay such Guarantee Payment into the Certificate Account not later
than 11:00 a.m., St. Paul, Minnesota time on the third Business Day prior to the
Remittance Date. The Trustee shall distribute such Guarantee Payment to the
Class B-2 Certificateholders on such Remittance Date.
b. The obligations of the Company under the Limited Guarantee shall not
terminate upon, or otherwise be affected by, a Service Transfer pursuant to
Article VII of the Pooling and Servicing Agreement. The obligations of the
Company to provide the Limited Guarantee under this Agreement shall terminate on
the date on which the Class B-2 Principal Balance is reduced to zero on account
of distributions actually made and all amounts distributable to the Class B-2
Certificateholders on account of interest have been paid. The obligations of
the Company under the Limited Guarantee shall be unconditional and irrevocable.
The Trustee shall promptly notify Moody's and Fitch of any failure of the
Company in whole or in part to make a Guarantee Payment due hereunder.
c. The obligations of the Company under the Limited Guarantee shall not be
deemed property of the Trust or the REMIC.
SECTION 4. Merger or Consolidation of the Company. The Company shall keep
--------------------------------------
in full effect its existence, rights and franchises as a corporation and shall
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement.
Any person into which the Company may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Company shall be a party, or any Person succeeding to all or substantially all
of the business of the Company shall be the successor of the Company hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
SECTION 5. Amendment. This Agreement may be amended from time to time by
---------
the Company and the Trustee, without the consent of any Class B-2
Certificateholder, to correct manifest error, to cure any ambiguity, to correct
or supplement any provisions herein, as the case may be, or to add any other
provisions with respect to matters or questions arising under this Agreement
which shall not be inconsistent with the provisions of this Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel for
the Company, adversely affect in any material respect the interests of any Class
B-2 Certificateholder.
This Agreement may also be amended from time to time by the Company and the
Trustee with the consent of Holders of Class B-2 Certificates
-3-
<PAGE>
evidencing Percentage Interests aggregating 51% or more, 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
Class B-2 Certificateholders; provided, however, that no such amendment shall
(a) reduce in any manner the amount of, or delay the timing of, payments
required to be made by the Company under this Agreement, or (b) reduce the
aforesaid percentage required to consent to any such amendment, without the
consent of the Holders of all Class B-2 Certificates then outstanding.
The Company shall provide notice of any amendment of this Agreement to
Moody's and Fitch.
SECTION 6. Notices. All communications and notices pursuant hereto shall
-------
be in writing and delivered or mailed to it at the appropriate following
address:
If to the Company:
Green Tree Financial Corporation
1100 Landmark Towers
345 St. Peter Street
St. Paul, Minnesota 55102-1639
Attention: Chief Financial Officer
If to the Trustee:
First Bank National Association
Corporate Trust Department
180 East Fifth Street
St. Paul, Minnesota 55101
Attention:
If to Moody's:
Moody's Investors Service, Inc.
ABS Monitoring Department
99 Church Street
New York, New York 10007
If to Fitch:
Fitch Investors Service, Inc.
One State Street Plaza
New York, New York 10004
-4-
<PAGE>
or at such other address as the party may designate by notice to the other
parties hereto, which notice shall be effective when received.
All communications and notices pursuant hereto to a Class B-2
Certificateholder shall be in writing and delivered or mailed at the address
shown in the Certificate Register.
SECTION 7. Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 8. Benefit of the Agreement. This Agreement shall be binding upon
------------------------
the parties hereto and their permitted successors and shall be for the direct
benefit of each present and future Class B-2 Certificateholder without any
further action on the part of any such Class B-2 Certificateholder.
SECTION 9. Headings. The headings herein are for purposes of reference
--------
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 10. Governing Law. This Agreement shall be governed by, and
-------------
construed and enforced in accordance with, the laws of the State of Minnesota.
SECTION 11. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
-5-
<PAGE>
IN WITNESS WHEREOF, the Company and the Trustee have caused their names to
be signed hereto as of the date above first written by their respective, duly
authorized officers.
GREEN TREE FINANCIAL CORPORATION
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
FIRST BANK NATIONAL ASSOCIATION
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
Acknowledged:
GREEN TREE FINANCIAL CORPORATION
As Servicer under the Pooling and Servicing Agreement
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
-6-
