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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 9, 1995
GREEN TREE FINANCIAL CORPORATION
as Servicer on behalf of
Green Tree Securitized Net Interest Margin Trust 1995-A
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(Exact name of registrant as specified in its charter)
Delaware 0-11652 41-1815020
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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 1995-A 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
as Servicer on behalf of Green Tree
Securitized Net Interest Margin Trust 1995-A
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 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 1995-A
UNDERWRITING AGREEMENT
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August 2, 1995
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 Delaware 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 $308,000,000
(approximate) principal amount of 7.25% Securitized Net Interest Margin
Certificates (the "Certificates") evidencing interests in Green Tree Securitized
Net Interest Margin Trust 1995-A (the "Trust"). The Certificates will be issued
pursuant to a trust agreement (the "Trust Agreement") dated as of June 1, 1995
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 $308,000,000 aggregate principal
amount of the Certificates. The assets of the Trust will consist of (i) the
residual cash flow from nine 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 between August 1994 and July 1995
(collectively, the "Securitized Pools"), (ii) a limited recourse note (the
"Finance I Note") issued by Finance I, (iii) a
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reserve fund for the benefit of Certificateholders (the "Reserve Fund") and (iv)
certain related property (as described herein). The Finance I Note will be
secured by, and will be payable solely from, the Guarantee Fees payable with
respect to seven of the Securitized Pools 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. 33-60869) and a related
preliminary prospectus for the registration of the Certificates under the
Securities Act of 1933 (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
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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, 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
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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
certificate of incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which it is a party or by which it or its properties
may be bound, which default might result in any material adverse change in
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 certificate of incorporation 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 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
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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 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.
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(j) As of the Closing Time, the Guarantee Fees 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 Fees 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 ratings 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 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:
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(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.
(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
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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.
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 ratings specified in the Terms Agreement, and (iii) there shall not
have come to your attention any facts that would cause you to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of the
Certificates, contained an untrue statement
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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").
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 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.
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(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
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
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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).
(h) At the Closing Time, Fitch Investors Service, L.P. will have
delivered a letter to the Company stating that the Certificates are rated "BBB+"
and Moody's Investor Service, Inc. will have delivered a letter to the Company
stating that the Certificates are rated "Baa3".
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,
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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.
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, 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 either of
the Registrants by the Underwriters expressly for use in the Registration
Statement (or any amendment
12
<PAGE>
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 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 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
13
<PAGE>
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 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
14
<PAGE>
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 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.
15
<PAGE>
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 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.
16
<PAGE>
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.
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.
17
<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:
18
<PAGE>
GREEN TREE SECURITIZED NET INTEREST MARGIN
CERTIFICATES
SERIES 1995-A
FORM OF TERMS AGREEMENT
-----------------------
Dated: August 2, 1995
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 August 2, 1995
Series Designation: Green Tree Securitized Net Interest Margin
- ------------------ Certificates, Series 1995-A
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
- --------- --------------------
$308,000,000 7.25%
Certificate Ratings:
"BBB+" by Fitch Investors Service, L.P.
"Baa3" by Moody's Investors Service, Inc.
Servicer:
- --------
Green Tree Financial Corporation (in such capacity, the "Servicer")
1
<PAGE>
Trust:
-----
The Trust shall include (i) the residual cashflow from nine 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
between August 1994 and July 1995 (collectively, the "Securitized Pools"), (ii)
a limited recourse note (the "Finance I Note") issued by Finance I, (iii) a
reserve fund for the benefit of the Certificateholders (the "Reserve Fund"), and
(iv) certain related property (as described herein). The Finance I Note will
be secured by, and will be payable solely from, the Guarantee Fees payable with
respect to seven of the Securitized Pools 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, 1995.
Purchase Price:
- --------------
Subject to the terms of the following paragraph, the purchase price
payable by the Underwriters for the Certificates is 98.153125% of the principal
amount of the Certificates plus accrued interest, if any, at the Certificate
Interest Rate (7.25%) from August 2, 1995.
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:
99.953125%
Closing Date and Location:
- -------------------------
On or about August 9, 1995, 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>
TRUST AGREEMENT
Dated as of June 1, 1995
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 1995-A
<PAGE>
TABLE OF CONTENTS
Page
----
INTRODUCTION............................................................... 1
ARTICLE I DEFINITIONS.............................................. 1
Section 1.1. Definitions.............................................. 1
Section 1.2. Usage of Terms........................................... 9
Section 1.3. Calculations............................................. 9
Section 1.4. Section References....................................... 9
Section 1.5. Action by or Consent of Certificateholders............... 9
ARTICLE II CREATION OF TRUST........................................ 10
Section 2.1. Creation of Trust........................................ 10
Section 2.2. Office................................................... 10
Section 2.3. Purposes and Powers...................................... 10
Section 2.4. Appointment of Trustee................................... 11
Section 2.5. Initial Capital Contribution of Trust Estate............. 11
Section 2.6. Declaration of Trust..................................... 11
Section 2.7. Liability of the Certificateholders...................... 12
Section 2.8. Title to Trust Property.................................. 12
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........................... 14
Section 2.12. Covenants of the Subordinated Certificateholders......... 14
Section 2.13.. Covenants of the Certificate Owners...................... 16
ARTICLE III THE CERTIFICATES......................................... 17
Section 3.1. Initial Ownership........................................ 17
Section 3.2 Conditions to Issuance of the Certificates............... 17
Section 3.3. The Certificates......................................... 17
Section 3.4. Unconditional Rights of Senior Certificateholders
to Receive Principal and Interest........................ 18
Section 3.5. Authentication of Certificates........................... 18
Section 3.6. Registration of Transfer and Exchange of
Senior Certificates...................................... 18
Section 3.7. Mutilated, Destroyed, Lost or Stolen Certificates........ 21
Section 3.8. Persons Deemed Certificate Owners........................ 22
Section 3.9. Access to List of Certificateholders' Names and Addresses 22
Section 3.10. Maintenance of Office or Agency.......................... 22
Section 3.11. Appointmentt of Paying Agent............................. 22
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<PAGE>
ARTICLE IV ACTIONS BY CERTIFICATEHOLDERS.............................. 23
Section 4.1. Restriction on Power of Certificate Owners................. 23
Section 4.2. Restrictions on Certificate Owners' Power.................. 23
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES................. 24
Section 5.1. Certificate Account ........................................ 24
Section 5.2. Distribution of Funds in Certificate Account................ 25
Section 5.3. Method of Payment........................................... 28
Section 5.4. No Segregation of Monies; No Interest....................... 28
Section 5.5. Accounting; Reports; Tax Returns............................ 28
Section 5.6. Prepayment of Senior Certificates; Final Payment
on Senior Certificates...................................... 29
Section 5.7 Payment of Reserve Draw Accounts............................ 30
Section 5.8 Reserve Fund 30
ARTICLE VI AUTHORITY AND DUTIES OF TRUSTEE............................. 31
Section 6.1. General Authority........................................... 31
Section 6.2. General Duties.............................................. 31
Section 6.3. Action upon Instruction..................................... 31
Section 6.4. No Duties Except as Specified in this Agreement
or in Instructions.......................................... 32
Section 6.5. No Action Except under Specified Documents
or Instructions............................................. 32
Section 6.6. Restrictions................................................ 33
Section 6.7 Administration Agreement.................................... 33
ARTICLE VII CONCERNING THE TRUSTEE...................................... 34
Section 7.1. Acceptance of Trustee and Duties............................ 34
Section 7.2. Furnishing of Documents..................................... 35
Section 7.3. Representations and Warranties.............................. 35
Section 7.4. Reliance; Advice of Counsel................................. 36
Section 7.5. Not Acting in Individual Capacity........................... 36
Section 7.6. Trustee Not Liable for Certificates or
Related Documents........................................... 37
Section 7.7. Trustee May Own Senior Certificates......................... 37
Section 7.8 Doing Business in Other Jurisdictions........................37
ARTICLE VIII COMPENSATION OF TRUSTEE AND ADMINISTRATION.................. 38
Section 8.1. Trustee's and Administrator's Fees and Expenses............. 38
Section 8.2. Non-recourse Obligations.................................... 38
ARTICLE IX DEFAULT..................................................... 38
Section 9.1. Events of Default........................................... 38
Section 9.2. Rights upon an Event of Default............................. 39
Section 9.3. Distributions............................................... 40
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<PAGE>
ARTICLE X TERMINATION................................................ 40
Section 10.1. Termination of the Trust................................... 40
Section 10.2. Dissolution Events with respect to the
Subordinated Certificateholders............................ 41
ARTICLE XI SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES................. 42
Section 11.1. Eligibility Requirements for Trustee....................... 42
Section 11.2. Resignation or Removal of Trustee.......................... 42
Section 11.3. Successor Trustee.......................................... 43
Section 11.4. Merger or Consolidation of Trustee......................... 43
Section 11.5. Appointment of Co-Trustee or Separate Trustee.............. 43
ARTICLE XII MISCELLANEOUS PROVISIONS................................... 45
Section 12.1. Amendment.................................................. 45
Section 12.2. No Recourse................................................ 46
Section 12.3. Governing Law.............................................. 46
Section 12.4. Severability of Provisions................................. 46
Section 12.5. Third-Party Beneficiaries.................................. 46
Section 12.6. Counterparts............................................... 47
Section 12.7. Notices.................................................... 47
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
-iii-
<PAGE>
THIS TRUST AGREEMENT, dated as of June 1, 1995, 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,
1995, 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 amount
contained in the Certificate Account on such Distribution Date.
Assignment Agreements: Each of (i) the Guarantee Fee Assignment, dated as
of June 1, 1995, between Green Tree and Finance I; and (ii) the Residual Assets
Assignment, dated as of June 1, 1995, 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, the
beneficial owner of such Book-Entry Certificate; 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: August 9, 1995.
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 telecopy number for the Corporate Trust Office on the date
of the execution of this Agreement is (302) 651-8882.
-2-
<PAGE>
Cut-Off Date: June 1, 1995 (or July 1, 1995, with respect to certain
Contracts included in the 1995-4 and 1995-5 Securitized Pools) (or August 1,
1995, with respect to certain Contracts included in the 1995-5 Securitized
Pool).
Definitive Certificate: The meaning specified in Section 3.6(h).
Demand Note: The Demand Note, dated August 9, 1995, 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 $308,000,000
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: An account which is any of the following: (i) an
account maintained with an Eligible Institution; (ii) an account or accounts the
deposits in which are fully insured by either the Bank Insurance Fund or the
Savings Association Insurance Fund of the FDIC; (iii) a trust account (which
shall be a "segregated trust account") maintained with the corporate trust
department of a federal or state chartered depository institution or trust
company with trust powers and acting in its fiduciary capacity for the benefit
of the Trustee hereunder, which
-3-
<PAGE>
depository institution or trust company shall
have capital and surplus of not less than $50,000,000 and the securities of such
depository institution (or, if such depository institution is a subsidiary of a
bank holding company system and such depository institution's securities are not
rated, the securities of the bank holding company) shall have a credit rating
from each of Fitch (if rated by Fitch) and Moody's in one of its generic credit
rating categories which signifies investment grade; or (iv) an account that will
not cause either of the Rating Agencies to downgrade or withdraw its then-
current rating assigned to the Certificates, as evidenced in writing by the
Rating Agencies.
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 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 have been rated F-1 or higher
by Fitch (if rated by Fitch) and P-1 or higher by Moody's, in the case of short-
term securities, or whose unsecured long-term debt has been rated one of the
three highest categories by Fitch (if rated by Fitch) and in one of the two
highest rating categories by Moody's, 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 deposits of such
depository institution or trust company (or, in the case of a depository
institution which is the principal subsidiary of a holding company, the
commercial paper or other short-term obligations of such holding company)
are rated at least F-1 by Fitch (if rated by Fitch) and at least P-1 by
Moody's 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
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Securities Act of 1933 and have the highest credit rating then available
from Fitch (if rated by Fitch) and Moody's, 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 Fitch (if rated by
Fitch) and Moody's in one of its two highest long-term debt rating
categories or whose commercial paper is rated F-1 or higher by Fitch (if
rated by Fitch) and P-1 by Moody's;
(v) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any State thereof which have a credit rating and in one of the three
highest rating categories from Fitch (if rated by Fitch) and a credit
rating of at least Aa from Moody's 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 F-1 from Fitch (if rated by
Fitch) and at least P-1 from Moody's at the time of such investment or
pledge as a security.
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 August 9, 1995, issued by
Finance I to the Trust.
Fitch: Fitch Investors Service, L.P., or its successor in interest.
Green Tree: Green Tree Financial Corporation, a Delaware 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
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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.
Interest Rate: 7.25% 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, $17,116,559.
Moody's: Moody's Investors Services, 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: Each of Fitch and Moody's, so long as such rating agencies
maintain a rating on the Senior Certificates; and if either Fitch or Moody's 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.
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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 $3,349,500.00, which amount shall be paid to the Subordinated
Certificateholders.
Reserve Draw Amount: (a) With respect to any Distribution Date, an amount
equal to the Senior Certificateholders' Interest Shortfall, and (b) with respect
to the Distribution Date occurring in July 2005 or upon the maturity of the
Senior Certificates following an "Event of Default," the amount, if any, by
which the outstanding principal amount of the Senior Certificates on such date,
plus all accrued and unpaid interest thereon, exceeds the funds on deposit in
the Certificate Account.
Reserve Fund: The separate trust account established and maintained in the
name of the Trust pursuant to Section 5.8, for the benefit of the Senior
Certificateholders.
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 nine pools of manufactured housing contracts sold
by or on behalf of Green Tree to investors between August 1994 and July 1995.
Security Agreement: The Security Agreement, dated as of August 9, 1995,
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.
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Senior Certificateholders' Interest Distributable Amount: With respect to
any Distribution Date, other than the Distribution Date occurring in August
1995, 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, 1995, interest shall accrue from the
Closing Date to but not including August 15, 1995.
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, 1995,
between the Trust and Green Tree, as Servicer, as the same may be amended and
supplemented from time to time.
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, 1995,
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
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Account and the Reserve Fund (including all 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.
------------------------------------------
(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
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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 1995-A," 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;
(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 $227,500,000 of the
proceeds from the sale of the Certificates to Finance I (upon delivery of
the Finance I Note and the Security Agreement), to retain $7,500,000 of the
proceeds from the sale of the Certificates and deposit such amount into the
Reserve Fund, 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
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(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 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
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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.
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
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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 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.
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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 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
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the determination of net worth: (A) any Demand Note held by it shall
be valued at par, (B) the value of the Guarantee Fees 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 entity taxable as a
partnership for federal income tax purposes shall be valued at zero, and (F)
demand notes of Green Tree issued as contributions to any Subordinated
Certificateholder in connection with its status as a general partner of any
partnership formed pursuant to trust agreements substantially similar to this
Agreement shall be valued at an amount equal to the excess, if any, of (x) the
aggregate current amount of all such demand notes over (y) 5% of the sum of the
aggregate remaining balance of all Senior Certificates issued by such
partnerships (as of such date of determination) plus the initial estimated value
of the Subordinated Certificates issued by such partnerships, 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;
(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;
(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;
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(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 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.
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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, 1995,
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 August 9, 1995,
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 August 9,
1995, 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, 1995,
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 $308,000,000, 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. 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 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
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such Senior Certificate on or before the Distribution Date occurring in July
2005; 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 2005.
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 $308,000,000
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 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 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.
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(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.
(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 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,
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(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 two typewritten Senior Certificates
registered in the name of the Depository's nominee, Cede & Co., one such Senior
Certificate evidencing $200,000,000 of original principal amount each, and the
second such Senior Certificate evidencing $108,000,000 of original principal
amount. Such Senior Certificates 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 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
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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" or a "foreign person" (each 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 or a foreign person. 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. A "foreign person" means any
person who is not (i) a citizen or resident of the United States, (ii) a
domestic partnership, (iii) a domestic corporation or (iv) an estate or trust
all of the income of which is subject to taxation in the United States.
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.
Section 3.8. Persons Deemed Certificate Owners. Prior to due
presentation of a Certificate for registration of transfer, the Trustee or the
Certificate
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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 must report the amounts of such distributions to the Trustee.
Any Paying Agent will have the revocable power to withdraw funds from the
Certificate Account for the purpose of making the distributions referred to
above. The Trustee may revoke such power and remove the Paying Agent if the
Trustee determines in its sole discretion that the Paying Agent has failed to
perform its obligations under this Agreement in any material respect. The
Paying Agent will initially be First
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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 may resign as Paying Agent upon 30 days' written
notice to the Trustee. In the event that First Trust National Association is
longer the Paying Agent, the Trustee must appoint a successor to act as Paying
Agent (which shall be a bank or trust company). The Trustee must 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 agrees 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 have been
paid to such Certificateholders. The Paying Agent must return all unclaimed
funds to the Trustee and upon removal of a Paying Agent such Paying Agent must
also return all funds in its possession to the Trustee. The provisions of
Sections 7.1, 7.3, 7.4 and 8.1 apply to the Trustee also in its role as Paying
Agent, for so long as the Trustee is acting as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to the Paying Agent includes 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 will 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 will 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 has 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 have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee under this Agreement and 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, has neglected
or refused to institute any such action, suit, or proceeding and during such 30-
day period, no request or waiver 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
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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 will 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, must
establish and maintain the Certificate Account in the name of the Trust for the
benefit of the Certificateholders. The Certificate Account must be an Eligible
Account and initially will 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 will 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 must within five Business Days (or such longer
period, not to exceed 30 calendar days, as to which the Rating Agencies may
consent) establish a new Certificate Account as an Eligible Account and must
transfer any cash and/or any investments to such new Certificate Account.
(c) All amounts held in the Certificate Account must, 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 must be made in the name of the Trust, and such investments
may not be sold or disposed of prior to their maturity. Any investment of funds
in the Certificate Account must 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
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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 must have sole control over each such investment
and the income thereon, and any certificate or other instrument evidencing any
such investment, if any, must 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 must be distributed on the next
Distribution Date pursuant to Section 5.2. The Subordinated Certificateholders
must 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 1995, 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 1995, the Trustee will cause to be distributed to the
Subordinated Certificateholders, from the Amount Available after distribution of
the Senior Certificateholders' Interest Distributable Amount, $3,349,500.00,
representing the amount of interest that would have accrued on the original
principal amount of the Certificates at the Interest Rate from June 15, 1995 to
the Closing Date. After the Distribution Date occurring in August 1995, 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 and the amount withdrawn from the Reserve Fund
pursuant to Section 5.7 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 Distribution Dates (and applied to the earliest such
Distribution Date first), and next to the interest accrued for such
Distribution Date;
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(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 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):
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(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
Agencies 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 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
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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, 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 the 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
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
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by the Trust with the Securities and Exchange 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 $30,800,000, 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 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
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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.
Section 5.7 Payment of Reserve Draw Amounts. If the Monthly Report
delivered pursuant to Section 1.01 of the Servicing Agreement indicates a
Reserve Draw Amount, the Trustee shall withdraw from the Reserve Fund on the
Distribution Date for which such Reserve Draw Amount is required, an amount
equal to the lesser of (i) the Reserve Draw Amount or (ii) the amount of funds
in the Reserve Fund and shall distribute such amount to the Senior
Certificateholders on such Distribution Date.
Section 5.8 Reserve Fund.
(a) On the Closing Date, the Trust shall retain $7,500,000 from the
proceeds of the sale of the Certificates, shall establish the Reserve Fund for
the benefit of the Senior Certificateholders with the Eligible Institution at
which the Certificate Account is established (and will at all times maintain
such Reserve Fund at the same Eligible Institution at which the Certificate
Account is maintained) and shall deposit such amount into such Reserve Fund. The
Reserve Fund shall be entitled "Wilmington Trust Company as Trustee for the
benefit of the holders of the Green Tree Securitized Net Interest Margin Trust
1995-A, Senior Certificates (Green Tree Financial Corporation, Servicer)."
(b) Funds in the Reserve Fund shall, at the direction of the Trustee,
be invested in Eligible Investments that mature no later than one Business Day
prior to the next Distribution Date; provided, however, so long as Green Tree
has a long-term senior debt rating from Moody's of Baa1 or higher, funds in the
Reserve Fund may be invested in commercial paper having a rating of at least P-2
or higher from Moody's at the time of such investment. All net income and gain
from such investments shall be paid to the Subordinated Certificateholders on
each Distribution Date.
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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 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
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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 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 may 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.
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Section 6.6. Restrictions. The Trustee may 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 may 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.
(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.
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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;
(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;
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(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.
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
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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 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
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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 Fees or the Residual Assets or any related documents with respect
to the Guarantee Fees 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 Fees, 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 Fees 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.
Section 7.8 Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither Wilmington Trust Company nor
the Trustee shall be required to take any action in any jurisdiction other than
in the State of Delaware if the taking of such action will (i) require the
consent or approval or authorization or order of or the giving of notice to, or
the registration with or the taking of any other action in respect of, any state
or other governmental authority or agency of any jurisdiction other than the
State of Delaware; (ii) result in any fee, tax or other governmental charge
under the laws of any jurisdiction or any political subdivisions thereof in
existence on the date hereof other than the State of Delaware becoming payable
by Wilmington Trust Company; or (iii) subject Wilmington Trust Company to
personal jurisdiction in any jurisdiction other than the State of Delaware for
causes of action arising from acts unrelated to the consummation of the
transactions by Wilmington Trust Company or the Trustee, as the case may be,
contemplated hereby. The Trustee shall be entitled to obtain advice of counsel
(which advice shall be an expense of the Depositor) to determine whether any
action required to be taken pursuant to this Agreement results in the
consequences described in clauses (i), (ii) and (iii) of the preceding sentence.
In the event that said counsel advises the Trustee that such action will result
in such consequences, the Trustee will appoint an additional trustee pursuant to
Section 11.5 hereof to proceed with such action.
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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 2005.
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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) the
occurrence of a Dissolution Event (as provided in Section 10.2) with respect to
either Subordinated Certificateholder. In any case, there shall be delivered to
the Trustee and the Rating Agencies an opinion
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of counsel that all applicable preference periods under federal, state and local
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 either or both Subordinated Certificateholders, the Trust will
terminate. Promptly after the occurrence of a Dissolution Event, (i) each
Subordinated Certificateholder shall give the Trustee written notice of the
occurrence of such Dissolution Event, (ii) the Trustee shall, upon the receipt
of such written notice, give prompt written notice to the Certificateholders of
the occurrence of such Dissolution 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 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).
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<PAGE>
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 long-term debt rating
of at least BBB- by Fitch (if rated by Fitch), or shall otherwise be
satisfactory to Fitch, and a long-term debt rating of at least Baa3 by Moody's,
or shall otherwise be satisfactory to Moody's. 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 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.
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<PAGE>
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 Agencies.
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 Agencies. 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
Agencies.
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
-43-
<PAGE>
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 each 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, 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
-44-
<PAGE>
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 each Rating Agency.
(d) Promptly after the execution of any such amendment or consent, the
Trustee shall furnish written notification of the substance of such amendment
-45-
<PAGE>
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.
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.
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<PAGE>
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 each Rating Agency, One State Street Plaza, New
York, New York 10004, Attention: ABS Surveillance Group (for Fitch) and 99
Church Street, New York, New York 10007, Attention: ABS Monitoring Department
(for Moody's), 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.
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<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:
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<PAGE>
GUARANTEE FEE ASSIGNMENT
THIS ASSIGNMENT (the "Assignment"), dated as of June 1, 1995, is made
by Green Tree Financial Corporation, a Delaware 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.
(All capitalized terms used herein and not defined herein shall have the
meanings assigned to them in that certain Trust Agreement dated as of June 1,
1995 (the "Trust Agreement") among Finance I, Green Tree Manufactured Housing
Net Interest Margin Finance Corp. II and Wilmington Trust Company, as Trustee.)
WHEREAS, pursuant to certain Pooling and Servicing Agreements
identified in Appendix I attached hereto (the "Pooling and Servicing
Agreements"), Green Tree is entitled to receive guarantee fees (the "Guarantee
Fees") 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 Fees.
ARTICLE I
ASSIGNMENT OF GUARANTEE FEES
1.01 Guarantee Fees. 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 Fees, payable on or after July 15, 1995. In order to effect such
transfer, Green Tree shall deliver to the Trustee under the Pooling and
Servicing Agreements a written notification in substantially the form attached
hereto as Exhibit A.
1.02 Security Interest in the Guarantee Fees. Although the parties
intend that the assignment of Green Tree's right to receive the Guarantee Fees
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 security interest in the Guarantee Fees, and that this
Assignment shall constitute a security agreement under applicable law. Green
Tree further represents and warrants that all steps necessary to make such
security interest a first-priority perfected security interest have been taken,
and further covenants that it will take all steps necessary to maintain the
first-priority perfected status of such security interest during the term of
this Agreement. Green Tree further agrees that it shall at any time or times
hereafter execute such instruments and perform such acts as the
<PAGE>
Trustee or Finance I may request to establish and maintain a valid security
interest in the Guarantee Fees.
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 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 applicable 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 p.m. St. Paul, Minnesota 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 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 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 p.m. St. Paul, Minnesota 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
Fees 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.
-2-
<PAGE>
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 Delaware, 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 Certificate of
Incorporation or By-Laws. The execution and performance of this Assignment will
not violate the 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 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 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 Guarantee Fees. Green Tree is currently the sole
owner of the Guarantee Fees, 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 Pooling and Servicing Agreements, Finance
I shall be the sole owner of the Guarantee Fees, free and clear of all liens and
encumbrances.
3.04 Guarantee Fee Valuation. The valuation of the Guarantee Fees
disclosed in the Prospectus dated August 2, 1995 relating to the Senior
Certificates represents a reasonable estimate of the present value of the cash
flows from the Guarantee Fees, based on Green Tree management's best estimate of
the future principal prepayments, defaults and recovery rates on the related
Contracts, which in turn is based on Green Tree's historical experience with
pools of manufactured housing contracts, and using a discount rate that Green
Tree management believes approximates a market rate of interest for the
Guarantee Fees and the Residual Assets. Such valuations were also presented to
the Rating Agencies for use in their analysis of the Senior Certificates. Green
Tree does not, however, warrant that the related Contracts will actually conform
to such estimates.
-3-
<PAGE>
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 Fees by Green Tree.
(b) Green Tree acknowledges that Finance I intends to pledge the
Guarantee Fees and all Finance I's rights under this Assignment to the Trust
pursuant to a Security Agreement, dated as of August 9, 1995, 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 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.
-4-
<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
-----------------------------
I-1
<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 the Pooling and Servicing
Agreements between Green Tree Financial Corporation ("Green Tree"), as Seller
and Servicer, and you, as Trustee for the Securitized Manufactured Housing Pools
(the "Guarantee Fee Securitized Pools") listed on Appendix I attached hereto.
As such Trustee, you are obligated to remit to Green Tree the Guarantee Fees (as
defined in such Pooling and Servicing Agreements). We hereby notify you that we
have assigned all of our right to receive such Guarantee Fees on or after July
15, 1995 to Green Tree Manufactured Housing Net Interest Margin Finance Corp. I
("Finance I"). Henceforth you should remit all proceeds of such Guarantee Fees
to Finance I or its assignee.
Dated August 9, 1995 GREEN TREE FINANCIAL CORPORATION
By
---------------------------------
Its
-----------------------------
Acknowledged:
First Bank National Association
By
---------------------------------
Its
-----------------------------
<PAGE>
APPENDIX I
GUARANTEE FEES
<TABLE>
<CAPTION>
DATE OF
SECURITIZED POOL POOLING AND SERVICING
NAME AGREEMENT MAXIMUM AMOUNT
---- --------- --------------
<S> <C> <C>
GTFC 1994-5 August 1, 1994 300 Basis Points
GTFC 1994-6 September 1, 1994 300 Basis Points
GTFC 1994-7 November 1, 1994 300 Basis Points
GTFC 1994-8 December 1, 1994 300 Basis Points
GTFC 1995-1 February 1, 1995 300 Basis Points
GTFC 1995-3 May 1, 1995 300 Basis Points
GTFC 1995-4 June 1, 1995 300 Basis Points
</TABLE>
I-1
<PAGE>
RESIDUAL ASSETS ASSIGNMENT
THIS ASSIGNMENT (the "Assignment"), dated as of June 1, 1995, is made
by Green Tree Financial Corporation, a Delaware 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.
(All capitalized terms used herein and not defined herein shall have the
meanings assigned to them in that certain Trust Agreement dated as of June 1,
1995 (the "Trust Agreement") among Finance I, Finance II, and Wilmington Trust
Company, as Trustee.)
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, 1995. 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, security interest in the Residual
Assets, and that this Assignment shall constitute a security agreement under
applicable law. Finance I and Finance II further represent and warrant that all
steps necessary to make such security interest a first-priority perfected
security interest have been taken, and Finance I and
<PAGE>
Finance II further covenant that they will take all steps necessary to maintain
the first-priority perfected status of such security interest during the term of
this Agreement. 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
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 Fees
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 p.m.
St. Paul, Minnesota 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 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 and 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 Fees 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
-2-
<PAGE>
month period will be made by 3:00 p.m. St. Paul, Minnesota 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 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 Delaware, 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 Certificate 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 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 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.
3.04 Residual Asset Valuation. The valuation of the Residual Assets
disclosed in the Prospectus dated August 2, 1995 relating to the Senior
Certificates represents a reasonable estimate of the present value of the cash
flows from the
-3-
<PAGE>
Residual Assets, based on Green Tree management's best estimate of the future
principal prepayments, defaults and recovery rates on the related Contracts,
which in turn is based on Green Tree's historical experience with pools of
manufactured housing contracts, and using a discount rate that Green Tree
management believes approximates a market rate of interest for the Guarantee
Fees and Residual Assets. Such valuations were also presented to the Rating
Agencies for use in their analysis of the Senior Certificates. Green Tree does
not, however, warrant that the related Contracts will actually conform to such
estimates.
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.
(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, 1995 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-
<PAGE>
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.
-5-
<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
------------------------------
-6-
<PAGE>
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 1994-5 August 1, 1994 Class C Certificate GTFC-Two
GTFC 1994-6 September 1, 1994 Class C Certificate GTFC-Two
GTFC 1994-7 November 1, 1994 Class C Certificate GTFC-Two
GTFC 1994-8 December 1, 1994 Class C Certificate GTFC-Two
GTFC 1995-1 February 1, 1995 Class C Certificate GTFC-Two
GTFC 1995-2 March 1, 1995 Class C Certificate GTFC-Two
GTFC 1995-3 May 1, 1995 Class C Certificate GTFC-Two
GTFC 1995-4 June 1, 1995 Class C Certificate GTFC-Two
GTFC 1995-5 July 1, 1995 Class C Certificate GTFC-Two
</TABLE>
I-1
<PAGE>
EXHIBIT A
INSIDE REFINANCING PAYMENT
AND
REPURCHASE PAYMENT FACTORS
(See Attached)
A-1
<PAGE>
TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT (the "Agreement"), dated as of June 1, 1995,
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
1995-A, a Delaware business trust (the "Trust") created pursuant to a Trust
Agreement dated as of June 1, 1995, 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,
1995, made by Green Tree Financial Corporation, a Delaware 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, 1995. 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, 1995.
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 security interest in the items designated in Section
1.01 above, and that this Agreement shall constitute a security agreement under
applicable law. Finance I and Finance II further represent and warrant that all
steps necessary to make such security interest a first-priority perfected
security interest have been taken and Finance I and Finance II further covenant
that they will take all steps necessary to maintain the first-priority perfected
status of such security interest during the term of this Agreement. 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.
-2-
<PAGE>
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
-3-
<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 1995-A
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 Agencies, to:
Fitch Investors Service, L.P.
One State Street Plaza
New York, NY 10004
Attention: ABS Surveillance Group
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: ABS Monitoring Department
or to such other address as Finance I, Finance II, the Trust or the Rating
Agencies 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,
-4-
<PAGE>
term, covenant, representation or warranty of this Agreement. Finance I shall
mail notification of any such amendment or waiver to the Rating Agencies.
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 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
-5-
<PAGE>
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.
-6-
<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 1995-A
By Wilmington Trust Company, not in its
individual capacity but solely as Trustee
By
--------------------------------
Its
----------------------------
-7-
<PAGE>
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 1994-5 August 1, 1994 Class C Certificate GTFC-Two
GTFC 1994-6 September 1, 1994 Class C Certificate GTFC-Two
GTFC 1994-7 November 1, 1994 Class C Certificate GTFC-Two
GTFC 1994-8 December 1, 1994 Class C Certificate GTFC-Two
GTFC 1995-1 February 1, 1995 Class C Certificate GTFC-Two
GTFC 1995-2 March 1, 1995 Class C Certificate GTFC-Two
GTFC 1995-3 May 1, 1995 Class C Certificate GTFC-Two
GTFC 1995-4 June 1, 1995 Class C Certificate GTFC-Two
GTFC 1995-5 July 1, 1995 Class C Certificate GTFC-Two
</TABLE>
I-1
<PAGE>
LIMITED RECOURSE NOTE
$227,500,000 St. Paul, Minnesota
August 9, 1995
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 1995-A 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 Two
Hundred and Twenty-seven Million Five Hundred Thousand Dollars ($227,500,000)
(the "Principal Amount"), with interest (computed on the basis of a 360-day year
of twelve 30-day months) at the rate of 7.25% 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, 1995, 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 Fees (together with any Inside Refinancing Payments
and Repurchase Payments made by Green Tree pursuant to the Guarantee Fees
Assignment) remitted to Maker on such Distribution Date, minus the accrued
interest payable on such installment date. The interest due hereunder on August
15, 1995, shall be equal to interest accrued from August 9, 1995, and the
principal payable hereunder on August 15, 1995 shall be equal to all collections
on the Guarantee Fees (together with any Inside Refinancing Payments and
Repurchase Payments made by Green Tree pursuant to the Guarantee Fee Assignment)
remitted to Maker on August 15, 1995, 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 Fees. The Guarantee Fees shall have the meaning set forth in
that certain Guarantee Fee Assignment, dated as of June 1, 1995, 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.
Guarantee Fee Assignment. The Guarantee Fee Assignment, dated as of June
1, 1995, made by Green Tree in favor of Maker, which transfers the Guarantee
Fees to Maker.
Green Tree. Green Tree Financial Corporation, a Delaware corporation, in
its individual capacity and as seller of the Guarantee Fees 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 2005.
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, 1995, among
Maker, Green Tree Manufactured Housing Net Interest Margin Finance Corp. II and
Wilmington Trust Company, as Trustee.
<PAGE>
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 2005.
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 Fees 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 Fees
(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 Fees (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 Fees (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 Fees (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 August 9, 1995, 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.
7.2 No failure or delay by Payee to exercise any right or remedy
under this Note shall waive such right or remedy.
-2-
<PAGE>
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.
-3-
<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:
-4-
<PAGE>
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (the "Agreement"), dated as of June 1, 1995,
is made and entered into between Green Tree Financial Corporation, a Delaware
corporation, as Servicer ("Green Tree" or the "Servicer") and Green Tree
Securitized Net Interest Margin Trust 1995-A (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, 1995 (the "Guarantee Fee Assignment"), made by Green Tree in favor of
Finance I, Green Tree has transferred its right to receive the Guarantee Fees
(as defined in such Guarantee Fee Assignment) to Finance I.
WHEREAS, pursuant to that certain Residual Assets Assignment dated as
of June 1, 1995 (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, 1995 (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 August 9, 1995, payable solely from collections on the
Guarantee Fees.
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 Agencies, 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 Fees and the Residual Assets.
1.02 Annual Report of Accountants. On or before March 31 of
each year, commencing March 31, 1996, 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 make available to the Trustee and
the Rating Agencies a report stating that such firm has examined selected
documents and records relating to the servicing of manufactured housing
conditional sales contracts, including the Contracts covered by the pooling and
servicing agreements for the Securitized Pools, [(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)], in accordance
with the Mortgage Bankers Association of America's Uniform Single Audit Program
for Mortgage Bankers, or any successsor uniform program, and that, on the basis
of such examination, such servicing has been conducted in compliance with the
minimum servicing standards identified herein, except for such significant
exceptions or errors in records that, in the opinion of such firm, generally
accepted auditing standards requires it to report.
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:
-2-
<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 Agencies, to:
Fitch Investors Service, L.P.
One State Street Plaza
New York, NY 10004
Attention: ABS Surveillance Group
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: ABS Monitoring Department
or to such other address as Green Tree, the Trustee, the Administrator/Paying
Agent or the Rating Agencies 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
-3-
<PAGE>
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
this Agreement. Green Tree shall mail notice of any such amendment or waiver to
the Rating Agencies.
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 Delegation. Green Tree, as Servicer, may delegate some or all
of its servicing duties to a wholly-owned subsidiary of Green Tree.
Notwithstanding any such delegation, Green Tree shall retain all of the rights
and obligations of the Servicer hereunder.
2.06 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.
2.07 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.
2.08 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.
2.09 Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
2.10 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-
<PAGE>
2.11 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 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.
2.12 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.
-5-
<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 1995-A
By Wilmington Trust Company,
not in its individual capacity but solely
as Trustee
By
--------------------------------
Its
----------------------------
-6-
<PAGE>
EXHIBIT A
FORM OF MONTHLY REPORT
GREEN TREE FINANCIAL NET INTEREST MARGIN TRUST 1995-A
7.25% 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 Guarantee Fees
and the Residual Assets, as of the immediately
preceding Distribution Date ____________
9. Aggregate principal balance of loans
refinanced by Green Tree Financial Corporation ____________
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 1995-A
- ----------------------------
<TABLE>
<CAPTION>
Inside Refinancing
Guarantee Fee Residual and Repurchase Total
Payments Payments Payments Payments
-------- -------- -------- --------
<S> <C> <C> <C> <C>
GTFC 1994-5
GTFC 1994-6
GTFC 1994-7
GTFC 1994-8
GTFC 1995-1
GTFC 1995-2
GTFC 1995-3
GTFC 1995-4
GTFC 1995-5
Total Guarantee Fee
Payments, Residual
Payments and Inside
Refinance and
Repurchase Payments ____________
</TABLE>
14. Total amount of Guarantee Fees Payments and
related Inside Refinance and Repurchase Payments ____________
15. Payment on Finance I Note ____________
16. Allocable to Interest (current) ____________
17. Allocable to accrued but unpaid interest ____________
18. Allocable to Principal ____________
19. Finance I Note Principal Balance ____________
20. Accrued and unpaid Trustee Fees ____________
21. Reserve Draw Amount ____________
22. Remaining balance in Reserve Fund ____________
A-2
<PAGE>
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement"), dated as of
August 9, 1995, 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, 1995-A, a Delaware business
trust (the "Trust"), created pursuant to a Trust Agreement dated as of June 1,
1995 (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 Delaware corporation ("Green Tree") in favor of Finance
I, dated as of June 1, 1995 (the "Guarantee Fee Assignment"), Finance I is the
owner of the right to receive the Guarantee Fees (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 August 9, 1995, in the amount of $227,500,000 (the "Finance I Note").
WHEREAS, the Finance I Note is payable solely from the Guarantee Fees
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 Fees
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 Fees and (ii) Finance I's right to receive Inside Refinancing
Payments and Repurchase Payments under the Guarantee Fee Assignment.
1.03 Collections on Guarantee Fees. Finance I will instruct the
Trustee of each Guarantee Fee Securitized Pool to pay the Guarantee Fees
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.
-2-
<PAGE>
2.02 Title to the Collateral. Finance I is the sole owner of the
Guarantee Fees 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.
-3-
<PAGE>
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 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, 1995-A
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 Agencies, to:
Fitch Investors Service, L.P.
One State Street Plaza
New York, NY 10004
Attention: ABS Surveillance Group
Moody's Investors Service, Inc.
99 Church Street
New York, NY 10007
Attention: ABS Monitoring Department
-4-
<PAGE>
or to such other address as Finance I, the Trust or the Rating Agencies 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 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 Agencies.
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
-5-
<PAGE>
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
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.
-6-
<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 SECURITIZED NET
INTEREST MARGIN TRUST 1995-A
By Wilmington Trust Company, not in its
individual capacity but solely as Trustee
By
----------------------------------
Its
------------------------------
Acknowledged by: GREEN TREE FINANCIAL CORPORATION
By
----------------------------------
Its
------------------------------
-7-
<PAGE>
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 the Pooling and Servicing
Agreements between Green Tree Financial Corporation ("Green Tree"), as Seller
and Servicer, and you, as Trustee for the Securitized Manufactured Housing Pools
(the "Guarantee Fee Securitized Pools") listed on Appendix I and attached hereto
(the "Pooling and Servicing Agreements"). 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 Fees (as defined in the Pooling and Servicing Agreements) payable to
Green Tree on or after July 15, 1995. We hereby notify you that we have pledged
such Guarantee Fees to Green Tree Securitized Net Interest Margin Trust 1995-A
(the "Trust"), effective August 9, 1995. From that date forward you should
remit such Guarantee Fees to the Trust.
Green Tree Manufactured Housing
Net Interest Margin Finance Corp. I
By
----------------------------------
Its
------------------------------
Acknowledged:
First Bank National Association
By
----------------------------------
Its
------------------------------
<PAGE>
APPENDIX I
GUARANTEE FEE SECURITIZED POOLS
<TABLE>
<CAPTION>
DATE OF
SECURITIZED POOL POOLING AND SERVICING
NAME AGREEMENT MAXIMUM AMOUNT
---- --------- --------------
<S> <C> <C>
GTFC 1994-5 August 1, 1994 300 Basis Points
GTFC 1994-6 September 1, 1994 300 Basis Points
GTFC 1994-7 November 1, 1994 300 Basis Points
GTFC 1994-8 December 1, 1994 300 Basis Points
GTFC 1995-1 February 1, 1995 300 Basis Points
GTFC 1995-3 May 1, 1995 300 Basis Points
GTFC 1995-4 June 1, 1995 300 Basis Points
</TABLE>
I-1
<PAGE>
EXHIBIT 4.8
ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT, dated as of June 1, 1995, among GREEN TREE
SECURITIZED NET INTEREST MARGIN TRUST 1995-A, 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 7.25% Securitized Net Interest Margin
Certificates (the "Senior Certificates") and Subordinated Certificates (the
"Subordinated Certificates") pursuant to a Trust Agreement, dated as of June 1,
1995 (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, 1995 among Finance I, Finance II and the Trust (the "Transfer Agreement");
(iii) a security agreement dated as of August 9, 1995, 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 August 9, 1995,
issued by Finance I to the Trust (the "Finance I Note"); (iv) a servicing
agreement, dated as of June 1, 1995, 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 August 2,
1995, 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 Agencies 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
Fees or the Residual Assets or any related documents with respect to the
Guarantee Fees 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 Fees, 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 Fees 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 August 9, 1995, 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 1995-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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(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
(d) if to the Rating Agencies, to
Fitch Investors Service, L.P.
One State Street Plaza
New York, New York 10004
Attention: ABS Surveillance Group
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: ABS Monitoring Department
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
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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 Certificates and
Subordinated Certificates. The Administrator shall give the Rating Agencies
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.
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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.
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 1995-A
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:
15
