EXHIBIT 4.5
CONSECO FINANCE RECREATIONAL ENTHUSIAST CONSUMER TRUST 2001-A
ADMINISTRATION AGREEMENT
among
CONSECO FINANCE RECREATIONAL ENTHUSIAST CONSUMER TRUST 2000-A
as Issuer
and
CONSECO FINANCE SERVICING CORPORATION
as Administrator
and
U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as Indenture Trustee
Dated as of October 1, 2001
This ADMINISTRATION AGREEMENT dated as of October 1, 2001 (this
"Agreement"), among Conseco Finance Recreational Enthusiast Consumer Trust
2001-A, a Delaware business trust (the "Issuer"), Conseco Finance Servicing
Corporation, a Delaware corporation, as administrator (the "Administrator"), and
U.S. Bank Trust National Association, a national banking association, not in its
individual capacity but solely as Indenture Trustee (the "Indenture Trustee").
WITNESSETH:
WHEREAS, the Issuer is issuing eight classes of Asset-Backed Notes
(collectively, the "Notes"), pursuant to the Indenture dated as of October 1,
2001 (as amended and supplemented from time to time, the "Indenture"), between
the Issuer and the Indenture Trustee, and the Issuer is issuing a single class
of Asset-Backed Certificates (the "Certificates") pursuant to the Trust
Agreement, dated as of October 1, 2001 (as amended and supplemented from time to
time, the "Trust Agreement"), among Wilmington Trust Company, as owner trustee
(the "Owner Trustee"), Conseco Finance Securitizations Corp., as depositor
(capitalized terms used and not otherwise defined herein shall have the meanings
assigned to such terms in the Trust Agreement or the Indenture);
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and the Certificates including: (i) the Trust
Agreement, (ii) a Sale and Servicing Agreement dated as of October 1, 2001 (as
amended and supplemented from time to time, the "Sale and Servicing Agreement"),
among the Issuer, Conseco Finance Corp., a Delaware corporation, as Originator
(in such capacity, the "Originator") and Servicer (in such capacity, the
"Servicer") and Conseco Finance Securitizations Corp., as Seller (in such
capacity, the "Seller"), (iii) a Letter of Representations dated October 1, 2001
(as amended and supplemented from time to time, the "Note Depository
Agreement"), among the Issuer, the Indenture Trustee, the Administrator and The
Depository Trust Company ("DTC") relating to the Notes; (iv) the Indenture (the
Trust Agreement, the Sale and Servicing Agreement, the Note Depository Agreement
and the Indenture being referred to hereinafter collectively as the "Related
Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (a) the Notes
and the collateral therefor pledged pursuant to the Indenture (the "Collateral")
and (b) the Certificates (the registered holders of such interests being
referred to herein as the "Owners");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
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
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner 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 Note Depository Agreement and the
Indenture.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under
the Note Depository Agreement. In addition, the Administrator shall
consult with the Owner Trustee regarding the duties of the Issuer or
the Owner Trustee under the Indenture and the Note Depository
Agreement. The Administrator shall monitor the performance of the
Issuer and shall advise the Owner Trustee when action is necessary to
comply with the Issuer's or the Owner Trustee's duties under the
Indenture and the Note Depository Agreement. The Administrator shall
prepare for execution by the Issuer, or shall cause the preparation by
other appropriate persons of, all such documents, reports, filings,
instruments, certificates and opinions that it shall be the duty of the
Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Indenture and the Note Depository Agreement. In furtherance of the
foregoing, the Administrator shall take all appropriate action that is
the duty of the Issuer or the Owner Trustee to take pursuant to the
Indenture including, without limitation, such of the foregoing as are
required with respect to the following matters under the Indenture
(references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to
give the Indenture Trustee notice of any appointment
of a new Note Registrar and the location, or change
in location, of the Note Register (Section 2.04);
(B) the notification of Noteholders of the final
principal payment on their Notes (Section 2.07(b));
(C) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes
and delivery of the same to the Indenture Trustee
(Section 2.02);
(D) the preparation, obtaining or filing of the
instruments, opinions and certificates and other
documents required for the release of collateral
(Section 4.04);
(E) the duty to cause newly appointed Paying Agents, if
any, to deliver to the Indenture Trustee the
instrument specified in the Indenture regarding funds
held in trust (Section 3.03);
(F) the direction to the Indenture Trustee to deposit
moneys with Paying Agents, if any, other than the
Indenture Trustee (Section 3.03);
(G) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to
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protect the validity and enforceability of the
Indenture, the Notes, the Indenture Collateral and
each other instrument and agreement included in the
Trust Estate (Section 3.04);
(H) the preparation of all supplements and amendments to
the Indenture and all financing statements,
continuation statements, instruments of further
assurance and other instruments and the taking of
such other action as is necessary or advisable to
protect the Trust Estate (Section 3.05);
(I) the delivery of the Opinion of Counsel on the Closing
Date and the annual delivery of Opinions of Counsel
as to the Trust Estate, and the annual delivery of
the Officer's Certificate and certain other
statements as to compliance with the Indenture
(Sections 3.06 and 3.09);
(J) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the
Issuer has contracted to perform its duties under the
Indenture (Section 3.07(b));
(K) the notification of the Indenture Trustee and the
Rating Agencies of an Event of Termination under the
Sale and Servicing Agreement and, if such an Event of
Termination arises from the failure of the Servicer
to perform any of its duties under the Sale and
Servicing Agreement with respect to the Contracts,
the taking of all reasonable steps available to
remedy such failure (Section 3.07(d));
(L) the duty to cause the Servicer to fulfill its
obligations under the Sale and Servicing Agreement
(Section 3.14);
(M) the preparation and obtaining of documents and
instruments required for the release of the Issuer
from its obligations under the Indenture (Section
3.11(b));
(N) the delivery of written notice to the Indenture
Trustee and the Rating Agencies of each Event of
Default under the Indenture and each default by the
Servicer or the Seller under the Sale and Servicing
Agreement (Section 3.18);
(O) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the
preparation of an Officer's Certificate and the
obtaining of the Opinion of Counsel and (if required)
the Independent Certificate relating thereto (Section
4.01);
(P) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the
Trust Estate in a commercially reasonable manner if
an Event of Default shall have occurred and be
continuing (Section 5.04);
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(Q) the preparation and delivery of notice to Noteholders
of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section
6.08);
(R) the preparation of any written instruments required
to confirm more fully the authority of any co-trustee
or separate trustee and any written instruments
necessary in connection with the resignation or
removal of any co-trustee or separate trustee
(Sections 6.08 and 6.10);
(S) the furnishing of the Indenture Trustee with the
names and addresses of Noteholders during any period
when the Indenture Trustee is not the Note Registrar
(Section 7.01);
(T) the preparation and, after execution by the Issuer,
the filing with the Commission, any applicable state
agencies and the Indenture Trustee of documents
required to be filed on a periodic basis with, and
summaries thereof as may be required by rules and
regulations prescribed by, the Commission and any
applicable state agencies and the transmission of
such summaries, as necessary, to the Noteholders
(Section 7.03);
(U) the opening of one or more accounts in the Issuer's
name, the preparation and delivery of Issuer Orders,
Officer's Certificates and Opinions of Counsel and
all other actions necessary with respect to
investment and reinvestment of funds in the Trust
Accounts (Sections 8.02 and 8.03);
(V) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of
supplemental indentures and the mailing to the
Noteholders of notices with respect to such
supplemental indentures (Sections 9.01, 9.02 and
9.03);
(W) the execution and delivery of new Notes conforming to
any supplemental Indenture (Section 9.06);
(X) the duty to notify Noteholders of redemption of the
Notes or to cause the Indenture Trustee to provide
such notification (Section 10.02);
(Y) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent
Certificates with respect to any requests by the
Issuer to the Indenture Trustee to take any action
under the Indenture (Section 11.01(a));
(Z) the preparation and delivery of Officer's
Certificates and the obtaining of Independent
Certificates, if necessary, for the release of
property from the lien of the Indenture (Section
11.01(b));
(AA) the notification of the Rating Agencies, upon the
failure of the Indenture Trustee to give such
notification, of the information required pursuant to
Section 11.04 of the Indenture (Section 11.04);
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(BB) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to
alternate payment and notice provisions (Section
11.06);
(CC) the recording of the Indenture, if applicable
(Section 11.15); and
(DD) the preparation of Definitive Notes in accordance
with the Instructions of the Depository (Section
2.11).
(b) The Administrator will:
(A) pay the Indenture Trustee (and any separate trustee
or co-trustee appointed pursuant to Section 6.10 of
the Indenture (a "Separate Trustee")) from time to
time reasonable compensation for all services
rendered by the Indenture Trustee or Separate
Trustee, as the case may be, under the Indenture
(which compensation shall not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(B) except as otherwise expressly provided in the
Indenture, reimburse the Indenture Trustee or any
Separate Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made
by the Indenture Trustee or Separate Trustee, as the
case may be, in accordance with any provision of the
Indenture (including the reasonable compensation,
expenses and disbursements of its agents and
counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or
bad faith;
(C) indemnify the Indenture Trustee and any Separate
Trustee and their respective agents for, and hold
them harmless against any losses, liability or
expense incurred without negligence or bad faith on
their part, arising out of or in connection with the
acceptance or administration of the transactions
contemplated by the Indenture, including the
reasonable costs and expenses of defending themselves
against any claim or liability in connection with the
exercise or performance of any of their powers or
duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and
hold them harmless against, any losses, liability or
expense incurred without gross negligence or bad
faith on their part, arising out of or in connection
with the acceptance or administration of the
transactions contemplated by the Trust Agreement,
including the reasonable costs and expenses of
defending themselves against any claim or liability
in connection with the exercise or performance of any
of their powers or duties under the Trust Agreement.
(c) Additional Duties.
(i) In addition to the duties of the Administrator set forth
above, the Administrator shall perform such calculations and shall
prepare or shall cause the
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preparation by other appropriate persons of, and shall execute on
behalf of the Issuer or the Owner Trustee, all such documents, reports,
filings, instruments, certificates, notices and opinions that it shall
be the duty of the Issuer or the Owner Trustee to prepare, file or
deliver pursuant to the Related Agreements or Section 5.5(a)(i), (ii),
(iii) or (v) of the Trust Agreement or Section 7.04(b) or (c) of the
Sale and Servicing Agreement, and at the request of the Owner Trustee
shall take all appropriate action that it is the duty of the Issuer or
the Owner Trustee to take pursuant to the Related Agreements. In
furtherance thereof, the Owner Trustee shall, on behalf of itself and
of the Issuer, execute and deliver to the Administrator and to each
successor Administrator appointed pursuant to the terms hereof, one or
more powers of attorney substantially in the form of Exhibit A hereto,
appointing the Administrator the attorney-in-fact of the Owner Trustee
and the Issuer for the purpose of executing on behalf of the Owner
Trustee and the Issuer all such documents, reports, filings,
instruments, certificates and opinions. Subject to Section 5 of this
Agreement, and in accordance with the directions of the Owner Trustee,
the Administrator shall administer, perform or supervise the
performance of such other activities in connection with the Indenture
Collateral (including the Related Agreements) as are not covered by any
of the foregoing provisions and as are expressly requested by the Owner
Trustee and are reasonably within the capability of the Administrator.
Such responsibilities shall include the obtainment and maintenance of
any licenses required to be obtained or maintained by the Issuer under
the Delaware business trust statute (Chapter 38 of Title 12 of The
Delaware Code, 12 Del. Code ss. 3801 et seq. (the "Delaware Business
Trust Statute"). In addition, the Administrator shall promptly notify
the Indenture Trustee and the Owner Trustee in writing of any amendment
to the Delaware Business Trust Statute that would affect the duties or
obligations of the Indenture Trustee or the Owner Trustee under any
Related Agreement and shall assist the Indenture Trustee or the Owner
Trustee in its obtainment and maintenance of any licenses required to
be obtained or maintained by the Indenture Trustee or the Owner Trustee
thereunder. In connection therewith, the Administrator shall cause the
Seller to pay all fees and expenses under such Act.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding
tax is imposed on the Trust's payments (or allocations of income) to an
Owner as contemplated in Section 5.2(f) of the Trust Agreement. Any
such notice shall specify the amount of any withholding tax required to
be withheld by the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for performance of the duties set forth in Section
5.5(a)(i), (ii), (iii), (iv) and (v) of the Trust Agreement with
respect to, among other things, accounting and reports to Owners.
(iv) The Administrator shall satisfy its obligations with
respect to clauses (ii) and (iii) above by retaining, at the expense of
the Issuer payable by the Administrator, a firm of independent public
accountants (the "Accountants") acceptable to the Owner Trustee, which
shall perform the obligations of the Administrator thereunder.
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(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust Agreement required
to be performed in connection with the resignation or removal of the
Owner Trustee, and any other duties expressly required to be performed
by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions 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 Issuer and shall
be, in the Administrator's opinion, no less favorable to the Issuer
than would be available from unaffiliated parties.
(d) 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 such action unless within a reasonable time before the taking of
such action, the Administrator shall have notified the Owner Trustee of
the proposed action and the Owner Trustee shall not have withheld
consent or provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial" shall include, without
limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit
brought by or against the Issuer (other than in
connection with the collection of the Contracts or
Eligible Investments);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture
Trustees pursuant to the Indenture or the appointment
of successor Administrators or successor Servicers,
or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee of its
obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not,
(x) make any payments to the Noteholders under the Related Agreements,
(y) sell the Trust Estate pursuant to Section 5.04 of the Indenture or
(z) take any other action that the Issuer directs the Administrator not
to take on its behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the Seller
and the Servicer at any time during normal business hours.
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3. 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 a monthly fee
to be determined by the Seller and the Administrator, which shall be solely an
obligation of the Seller.
4. Additional Information to be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Indenture Collateral as the Issuer shall reasonably
request.
5. 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 Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
6. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Owner 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 confirm
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
7. 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 Issuer, the Owner Trustee or the Indenture
Trustee.
8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the dissolution of the
Issuer, upon which event this Agreement shall automatically terminate.
(b) The Administrator may resign its duties hereunder by providing the
Issuer with at least 60 days' prior written notice.
(c) The Issuer may remove the Administrator without cause by providing
the Administrator with at least 60 days' prior written notice.
(d) At the sole option of the Issuer, the Administrator may be removed
immediately upon written notice of termination from the Issuer to the
Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such default,
shall not cure such default within ten days (or, if such default cannot
be cured in such time, shall not give within ten days such assurance of
cure as shall be reasonably satisfactory to the Issuer);
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(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have
been vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, shall 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, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fall generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clause
(ii) or (iii) of this Section shall occur, it shall give written notice thereof
to the Issuer and the Indenture Trustee within seven days after the happening of
such event.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer 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.
(f) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(g) Subject to Sections 8(e) and 8(f), the Administrator acknowledges
that upon the appointment of a successor Servicer pursuant to the Sale and
Servicing Agreement, the Administrator shall immediately resign and such
successor Servicer shall automatically become the Administrator under this
Agreement.
9. Action Upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a) or the
resignation or removal of the Administrator pursuant to Section 8(b) or (c),
respectively, 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 8(a) deliver to the Issuer all property and documents of or
relating to the Indenture Collateral then in the custody of the Administrator.
In the event of the resignation or removal of the Administrator pursuant to
Section 8(b) or (c), respectively, the Administrator shall cooperate with the
Issuer and take all reasonable steps requested to assist the Issuer in making an
orderly transfer of the duties of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) If to the Issuer or the Owner Trustee, to:
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Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Administration
(b) If to the Administrator, to:
Conseco Finance Servicing Corporation
1100 Landmark Towers
▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
(c) If to the Indenture Trustee, to:
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Administration, Structured Finance
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 hand-delivered
to the address of such party as provided above.
11. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the Administrator
and the Indenture Trustee, with written prior notice to ▇▇▇▇▇'▇ and with the
written consent of the Owner Trustee, without the consent of the Noteholders and
the Certificateholders, 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 Noteholders or Certificateholders;
provided that such amendment will not, in the Opinion of Counsel satisfactory to
the Indenture Trustee, materially and adversely affect the interest of any
Noteholder or Certificateholder. This Agreement may also be amended by the
Issuer, the Administrator and the Indenture Trustee with the written consent of
the Owner Trustee and the Controlling Noteholders and the holders of
Certificates evidencing a Certificate Majority 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 Noteholders or the
Certificateholders; provided, however, that no such amendment may (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Contracts or distributions that are required to be
made for the benefit of the Noteholders or the Certificateholders or (ii) reduce
the aforesaid percentage of the Notes and Certificates which are required to
consent to any such amendment, without the consent of the holders of all the
outstanding Notes and Certificates. Notwithstanding the foregoing, the
Administrator may not amend this Agreement without the permission of the Seller
and the Company, which permission shall not be unreasonably withheld.
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12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer or the Owner 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 Issuer, the Owner Trustee and the Indenture Trustee an
agreement in which such corporation or other organization agrees to be bound
hereunder by the terms of said assignment 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.
13. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF MINNESOTA, 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.
14. 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.
15. Counterparts. This Agreement may be executed in counterparts, each
of which when so executed shall be an original, but all of which together shall
constitute but one and the same agreement.
16. 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.
17. Not Applicable to Conseco Finance Servicing Corporation in Other
Capacities. Nothing in this Agreement shall affect any obligation Conseco
Finance Servicing Corporation may have in any other capacity.
18. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) 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 Owner Trustee of the Issuer
and in no event shall Wilmington Trust Company in its individual capacity or any
beneficial owner of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder,
as to all of which recourse shall be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of any duties or obligations
of the Issuer hereunder, the Owner
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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.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by U.S. Bank Trust National Association not in
its individual capacity but solely as Indenture Trustee and in no event shall
U.S. Bank Trust National Association have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Issuer.
19. Third-Party Beneficiary. The Owner Trustee 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.
20. Limitation of Liability. It is expressly understood and agreed by
the parties hereto that
(a) this Agreement is executed and delivered by Wilmington Trust
Company, not individually or personally but solely as Owner Trustee of Conseco
Finance Recreational Enthusiast Consumer Trust 2001-A, in the exercise of the
powers and authority conferred and vested in it,
(b) each of the representations, undertakings and agreements herein
made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company but is
made and intended for the purpose for binding only the Issuer,
(c) nothing herein contained shall be construed as creating any
liability on Wilmington Trust Company, individually or personally, to perform
any covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person claiming
by, through or under the parties hereto and
(d) under no circumstances shall Wilmington Trust Company be personally
liable for the payment of any indebtedness or expenses of the Issuer or be
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Issuer under this Agreement or any other
related documents.
12
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
CONSECO FINANCE RECREATIONAL
ENTHUSIAST CONSUMER TRUST 2001-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
Title: Vice President
CONSECO FINANCE SERVICING CORPORATION,
as Administrator
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Treasurer
EXHIBIT A
POWER OF ATTORNEY
STATE OF )
-----------------------------------
)
COUNTY OF )
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KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as owner
trustee (the "Owner Trustee") for Conseco Finance Recreational Enthusiast
Consumer Trust 2001-A (the "Trust"), does hereby make, constitute and appoint
Conseco Finance Servicing Corporation, as administrator under the Administration
Agreement dated as of October 1, 2001 (the "Administration Agreement"), among
the Trust, Conseco Finance Servicing Corporation and U.S. Bank Trust National
Association, as Indenture Trustee, as the same may be amended from time to time,
and its agents and attorneys, as Attorneys-in-Fact to execute on behalf of the
Owner Trustee or the Trust all such documents, reports, filings, instruments,
certificates and opinions as it should be the duty of the Owner Trustee or the
Trust to prepare, file or deliver pursuant to the Related Documents, or pursuant
to Section 5.5(a)(i), (ii), (iii), (iv) or (v) of the Trust Agreement,
including, without limitation, to appear for and represent the Owner Trustee and
the Trust in connection with the preparation, filing and audit of federal, state
and local tax returns pertaining the Trust, and with full power to perform any
and all acts associated with such returns and audits that the Owner Trustee
could perform, including without limitation, the right to distribute and receive
confidential information, defend and assert positions in response to audits,
initiate and defend litigation, and to execute waivers of restrictions on
assessments of deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed by
the Owner Trustee are hereby revoked.
Capitalized terms that are used and not otherwise defined herein shall
have the meanings ascribed thereto in the Administration Agreement.
EXECUTED this ____ of __________, 2001.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:
--------------------------------------
Name:
Title:
A-1
STATE OF )
-----------------------------------
)
COUNTY OF )
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Before me, the undersigned authority, on this day personally appeared
___________________________, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he/she
signed the same for the purposes and considerations therein expressed.
Sworn to before me this _____ day of ________________, 2001.
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Notary Public - State of
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A-2