Exhibit 4.6
TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
GREEN TREE FINANCIAL CORP.
Seller
dated as of
________________, 1999
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS................................................................1
SECTION 1.1. General......................................................1
SECTION 1.2. Specific Terms...............................................1
SECTION 1.3. Usage of Terms...............................................3
SECTION 1.4. Certain References...........................................3
SECTION 1.5. No Recourse..................................................3
SECTION 1.6. Action by or Consent of Noteholders..........................3
SECTION 1.7. Material Adverse Effect......................................4
ARTICLE II
CONVEYANCE OF THE INITIAL LOANS AND THE INITIAL OTHER
CONVEYED PROPERTY..........................................................4
SECTION 2.1. Conveyance of the Initial Loans and the Initial Other
Conveyed Property......................................4
SECTION 2.2. Purchase Price of Initial Loans..............................4
SECTION 2.3. Conveyance of Subsequent Loans and Subsequent Other
Conveyed Property......................................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES.............................................6
SECTION 3.1. Representations and Warranties of GTFC.......................6
SECTION 3.2. Representations and Warranties of CFSC.......................8
ARTICLE IV
COVENANTS OF GTFC.........................................................10
SECTION 4.1. Protection of Title of CFSC and the Trust...................10
SECTION 4.2. Other Liens or Interests....................................11
SECTION 4.3. Costs and Expenses..........................................11
SECTION 4.4. Indemnification.............................................11
ARTICLE V
REPURCHASES...............................................................13
SECTION 5.1. Repurchase of Loans Upon Breach of Warranty.................13
SECTION 5.2. Reassignment of Purchased Loans.............................13
SECTION 5.3. Waivers.....................................................14
ARTICLE VI
MISCELLANEOUS.............................................................14
SECTION 6.1. Liability of GTFC...........................................14
SECTION 6.2. Failure of GTFC to Sell Subsequent Loans....................14
SECTION 6.3. Merger or Consolidation of GTFC or CFSC.....................14
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SECTION 6.4. Limitation on Liability of GTFC and Others..................15
SECTION 6.5. GTFC May Own Notes..........................................15
SECTION 6.6. Amendment...................................................15
SECTION 6.7. Notices.....................................................16
SECTION 6.8. Merger and Integration......................................16
SECTION 6.9. Severability of Provisions..................................16
SECTION 6.10. Intention of the Parties...................................16
SECTION 6.11. Governing Law..............................................17
SECTION 6.12. Counterparts...............................................17
SECTION 6.13. Conveyance of the Initial Loans and the Initial Other
Conveyed Property to the Trust........................17
SECTION 6.14. Nonpetition Covenant.......................................17
SCHEDULES
Schedule A -- Schedule of Initial Loans
EXHIBITS
Exhibit A -- Form of Subsequent Transfer Agreement
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TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT, dated as of __________, 1999, executed between
Conseco Finance Securitizations Corp., a _________ corporation, as purchaser
("CFSC"), and Green Tree Financial Corp., a Delaware corporation, as seller
("GFTC").
W I T N E S S E T H:
WHEREAS, CFSC has agreed to purchase from GTFC and GTFC, pursuant to
this Agreement, is transferring to CFSC the [home improvement/home equity loans]
(the "Loans"); and
WHEREAS, CFSC has agreed to purchase (or has purchased) from GTFC and
GTFC has agreed to transfer (or has transferred) to CFSC the Subsequent Loans
and Subsequent Other Conveyed Property in an amount set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, CFSC and GTFC, intending to be legally
bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. General. The specific terms defined in this Article
include the plural as well as the singular. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Article,
Section, Schedule and Exhibit references, unless otherwise specified, refer to
Articles and Sections of and Schedules and Exhibits to this Agreement.
Capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the [Sale/Pooling] and Servicing Agreement,
dated as of __________, 1999, by and among Conseco Finance Securitizations Corp.
(as Seller), Green Tree Financial Corp. (in its individual capacity and as
Servicer), and [Trust] (as Issuer) (the "Trust").
SECTION 1.2. Specific Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Agreement" shall mean this Loans Purchase Agreement and Assignment and
all amendments hereof and supplements hereto.
"Closing Date" means __________, 1999.
"Indenture Trustee" means [Indenture Trustee], a national banking
association, as trustee and indenture collateral agent under the Indenture,
dated as of __________, 1999, between the Trust, the Indenture Trustee and the
Indenture Collateral Agent.
"Initial Other Conveyed Property" means all monies at any time paid or
payable on the Initial Loans or in respect thereof after the Initial Cutoff Date
(including amounts due on
or before the Initial Cutoff Date but received by GTFC after the Initial Cutoff
Date), an assignment of security interests in the related real estate, the
Collection Account (including all Eligible Investments therein and all proceeds
therefrom), all items contained in the Loan Files relating to the Initial Loans,
any and all other documents or electronic records that GTFC keeps on file in
accordance with its customary procedures relating to the Initial Loans, the
Obligors or the related real estate, property (including the right to receive
future Liquidation Proceeds) that secures an Initial Loan and that has been
acquired by or on behalf of the Trust pursuant to liquidation of such Initial
Loan, and all proceeds of the foregoing.
"Initial Loans" means the Loans listed on the Schedule of Initial Loans
attached hereto as Schedule A.
"Liquidated Damages" means an amount equal to the sum of the [Class A-1
Prepayment Premium, the Class A-2 Prepayment Premium, the Class A-3 Prepayment
Premium, the Class A-4 Prepayment Premium and the Class A-5 Prepayment Premium.]
"Other Conveyed Property" means the Initial Other Conveyed Property
conveyed by GTFC to CFSC pursuant to this Agreement together with any and all
Subsequent Other Conveyed Property conveyed by GTFC to CFSC pursuant to each
Subsequent Purchase Agreement.
"Owner Trustee" means Wilmington Trust Company, a Delaware corporation,
not in its individual capacity but solely as trustee of the Trust, and any
successor trustee appointed and acting pursuant to the Trust Agreement.
"Related Documents" means the Notes, the Trust Agreement, the
Indenture, each Subsequent Purchase Agreement, the [Sale/Pooling] and Servicing
Agreement, each Subsequent Transfer Agreement, the Note Policy and the
Underwriting Agreement among GTFC, CFSC and the underwriters of the Notes. The
Related Documents to be executed by any party are referred to herein as "such
party's Related Documents," "its Related Documents" or by a similar expression.
"Repurchase Event" means the occurrence of a breach of any of GTFC's
representations and warranties hereunder or under any Subsequent Purchase
Agreement or any other event which requires the repurchase of a Loan by GTFC
under the [Sale/Pooling] and Servicing Agreement.
"[Sale/Pooling] and Servicing Agreement" means the [Sale/Pooling] and
Servicing Agreement, dated as of __________, 1999, executed and delivered by
Green Tree Financial Corp., as Seller and Servicer, Conseco Financial
Securitizations Corp., and [Trust], as Issuer.
"Schedule of Initial Loans" means the schedule of all Loans sold and
transferred pursuant to this Agreement which is attached hereto as Schedule A.
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"Schedule of Loans" means the Schedule of Initial Loans attached hereto
as Schedule A as supplemented by each Schedule of Subsequent Loans attached to
each Subsequent Purchase Agreement as Schedule A.
"Schedule of Subsequent Loans" means the schedule of all Loans sold and
transferred pursuant to a Subsequent Purchase Agreement which is attached to
such Subsequent Purchase Agreement as Schedule A, which Schedule of Subsequent
Loans shall supplement the Schedule of Initial Loans.
"Subsequent Loans" means the Loans specified in the Schedule of
Subsequent Loans attached as Schedule A to each Subsequent Purchase Agreement.
"Subsequent Other Conveyed Property" means the Subsequent Other
Conveyed Property conveyed by GTFC to CFSC pursuant to each Subsequent Purchase
Agreement.
"Trust" means the trust created by the Trust Agreement, the estate of
which consists of the Trust Property.
"Trust Property" means the property and proceeds of every description
conveyed pursuant to [the Trust Agreement], [Sale/Pooling] and Servicing
Agreement and Section 2.1 hereof and pursuant to any Subsequent Purchase
Agreement and Subsequent Transfer Agreement, together with the Trust Accounts
(including all Eligible Investments therein and all proceeds therefrom).
SECTION 1.3. 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 gender; 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 or the
[Sale/Pooling] and Servicing Agreement; references to Persons include their
permitted successors and assigns; and the terms "include" or "including" mean
"include without limitation" or "including without limitation."
SECTION 1.4. Certain References. All references to the Principal
Balance of a Loan as of an Accounting Date shall refer to the close of business
on such day, or as of the first day of a Monthly Period shall refer to the
opening of business on such day. All references to the last day of a Monthly
Period shall refer to the close of business on such day.
SECTION 1.5. No Recourse. Without limiting the obligations of GTFC
hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of GTFC, or
of any predecessor or successor of GTFC.
SECTION 1.6. Action by or Consent of Noteholders. Whenever any
provision of this Agreement refers to action to be taken, or consented to, by
Noteholders, such provision shall
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be deemed to refer to Noteholders of record as of the Record Date immediately
preceding the date on which such action is to be taken, or consent given, by
Noteholders. Solely for the purposes of any action to be taken, or consented to,
by Noteholders, any Note registered in the name of the Seller, GTFC or any
Affiliate thereof shall be deemed not to be outstanding, and the related
Outstanding Amount, evidenced thereby shall not be taken into account in
determining whether the requisite Outstanding Amount necessary to effect any
such action or consent has been obtained; provided, however, that, solely for
the purpose of determining whether the Indenture Trustee is entitled to rely
upon any such action or consent, only Notes which the Indenture Trustee knows to
be so owned shall be so disregarded.
SECTION 1.7. Material Adverse Effect. Whenever a determination is to be
made under this Agreement as to whether a given event, action, course of conduct
or set of facts or circumstances could or would have a material adverse effect
on the Trust or the Noteholders (or any similar or analogous determination),
such determination shall be made without taking into account the funds available
from claims under the Note Policy.
ARTICLE II
CONVEYANCE OF THE INITIAL LOANS
AND THE INITIAL OTHER CONVEYED PROPERTY
SECTION 2.1. Conveyance of the Initial Loans and the Initial Other
Conveyed Property. Subject to the terms and conditions of this Agreement, GTFC
hereby sells, transfers, assigns, and otherwise conveys to CFSC without recourse
(but without limitation of its obligations in this Agreement), and CFSC hereby
purchases, all right, title and interest of GTFC in and to the Initial Loans and
the Initial Other Conveyed Property. It is the intention of GTFC and CFSC that
the transfer and assignment contemplated by this Agreement shall constitute a
sale of the Initial Loans and the Initial Other Conveyed Property from GTFC to
CFSC, conveying good title thereto free and clear of any Liens, and the Initial
Loans and the Initial Other Conveyed Property shall not be part of GTFC's estate
in the event of the filing of a bankruptcy petition by or against GTFC under any
bankruptcy or similar law.
SECTION 2.2. Purchase Price of Initial Loans. Simultaneously with the
conveyance of the Initial Loans and the Initial Other Conveyed Property to CFSC,
CFSC has paid or caused to be paid to or upon the order of GTFC approximately
$__________ by wire transfer of immediately available funds (representing the
proceeds to CFSC from the sale of the Initial Loans after (i) deducting expenses
of $725,000 incurred by CFSC in connection with such sale, (ii) depositing the
Pre-Funded Amount in the Pre-Funding Account and (iii) depositing the Reserve
Amount in the Reserve Account).
SECTION 2.3. Conveyance of Subsequent Loans and Subsequent Other
Conveyed Property.
(a) Subject to the conditions set forth in paragraph (b) below and the
terms and conditions in the related Subsequent Purchase Agreement, in
consideration of GTFC's delivery on the related Subsequent Transfer Date to or
upon the order of CFSC of an amount equal to the purchase price of the
Subsequent Loans (as set forth in the related Subsequent
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Purchase Agreement), GTFC hereby agrees to sell, transfer, assign, and otherwise
convey to CFSC without recourse (but without limitation of its obligations in
this Agreement and the related Subsequent Purchase Agreement), and CFSC hereby
agrees to purchase all right, title and interest of GTFC in and to the
Subsequent Loans and the Subsequent Other Conveyed Property described in the
related Subsequent Purchase Agreement.
(b) GTFC shall transfer to CFSC, and CFSC shall acquire, the Subsequent
Loans and the Subsequent Other Conveyed Property to be transferred on any
Subsequent Transfer Date only upon the satisfaction of each of the following
conditions on or prior to such Subsequent Transfer Date:
(i) CFSC shall have provided the Owner Trustee, the Indenture
Trustee and the Rating Agencies with a timely Addition Notice and shall
have provided any information reasonably requested by any of the
foregoing with respect to the Subsequent Loans;
(ii) the Funding Period shall not have terminated;
(iii) CFSC shall have delivered to GTFC a duly executed
Subsequent Transfer Agreement, in substantially the form of Exhibit A
hereto (the "Subsequent Transfer Agreement"), which shall include a
Schedule of Subsequent Loans;
(iv) as of each Subsequent Transfer Date, neither GTFC nor
CFSC was insolvent nor will either of them have been made insolvent by
such transfer nor is either of them aware of any pending insolvency;
(v) each Rating Agency shall have notified the Security
Insurer that following such transfer the Notes will be rated in the
highest rating category by such Rating Agency;
(vi) such addition will not result in a material adverse tax
consequence to the Trust or the Noteholders as evidenced by an Opinion
of Counsel to be delivered by GTFC;
(vii) CFSC shall have delivered to the Rating Agencies one or
more Opinions of Counsel with respect to the transfer of the Subsequent
Loans substantially in the form of the Opinions of Counsel delivered to
such persons on the Closing Date;
(viii) GTFC shall have taken any action necessary or advisable
to maintain the first perfected ownership interest of the Trust in the
Trust Property and the first perfected security interest of CFSC in the
Subsequent Loans and the Subsequent Other Conveyed Property, the Trust
in the Trust Property and the first perfected security interest of the
Indenture Collateral Agent in the Indenture Collateral;
(ix) GTFC is conveying Subsequent Loans to the Seller in
substantially the order they were originated by GTFC; and
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(x) no selection procedures believed by GTFC to be adverse to
the interests of the Noteholders shall have been utilized in selecting
the Subsequent Loans.
It is the intention of GTFC and CFSC that the transfer and assignment
contemplated by this Agreement and the related Subsequent Transfer Agreement
shall constitute a sale of the Subsequent Loans and the Subsequent Other
Conveyed Property from GTFC to CFSC, conveying good title thereto free and clear
of any Liens, and the Subsequent Loans and the Subsequent Other Conveyed
Property shall not be part of GTFC's estate in the event of the filing of a
bankruptcy petition by or against GTFC under any bankruptcy or similar law.
(c) GTFC covenants to transfer to CFSC pursuant to paragraph (a) above
Subsequent Loans with an aggregate Principal Balance approximately equal to
$__________; provided, however, that the sole remedy of CFSC with respect to a
failure of such covenant shall be to enforce the provisions of Section 6.2 of
this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of GTFC. GTFC makes the
following representations and warranties, on which CFSC relies in purchasing the
Initial Loans and the Initial Other Conveyed Property and in transferring the
Initial Loans and the Initial Other Conveyed Property to the Trust under the
[Sale/Pooling] and Servicing Agreement. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Initial Loans and the Initial Other Conveyed Property
hereunder and the sale, transfer and assignment thereof by CFSC to the Trust
under the [Sale/Pooling] and Servicing Agreement. GTFC and CFSC agree that CFSC
will assign to the Trust all of CFSC's rights under this Agreement and that the
Trust will thereafter be entitled to enforce this Agreement against GTFC in the
Trust's own name.
(a) Schedule of Representations. The representations and
warranties set forth in Section _____ of the [Sale/Pooling] and
Servicing Agreement are true and correct.
(b) Organization and Good Standing. GTFC 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 such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Initial Loans and the Initial Other Conveyed
Property transferred to CFSC.
(c) Due Qualification. GTFC 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 or the conduct of its business
requires such qualification.
(d) Power and Authority. GTFC has the power and authority to
execute and deliver this Agreement and its Related Documents and to
carry out its terms and their
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terms, respectively; GTFC has full power and authority to sell and
assign the Initial Loans and the Initial Other Conveyed Property to be
sold and assigned to and deposited with CFSC hereunder and has duly
authorized such sale and assignment to CFSC by all necessary corporate
action; and the execution, delivery and performance of this Agreement
and GTFC's Related Documents have been duly authorized by GTFC by all
necessary corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and GTFC's
Related Documents have been duly executed and delivered, shall effect a
valid sale, transfer and assignment of the Initial Loans and the
Initial Other Conveyed Property, enforceable against GTFC and creditors
of and purchasers from GTFC; and this Agreement and GTFC's Related
Documents constitute legal, valid and binding obligations of GTFC
enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(f) No Violation. The consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the 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, the articles of incorporation or bylaws of GTFC,
or any indenture, agreement, mortgage, deed of trust or other
instrument to which GTFC 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, other than this Agreement and the
[Sale/Pooling] and Servicing Agreement, or violate any law, order, rule
or regulation applicable to GTFC of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over GTFC or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending or, to GTFC's knowledge, threatened against GTFC, before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over GTFC or its
properties (i) asserting the invalidity of this Agreement or any of the
Related Documents, (ii) seeking to prevent the issuance of the Notes or
the consummation of any of the transactions contemplated by this
Agreement or any of the Related Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by GTFC of its obligations under, or the validity or
enforceability of, this Agreement or any of the Related Documents or
(iv) seeking to affect adversely the federal income tax or other
federal, state or local tax attributes of, or seeking to impose any
excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Initial Loans and the Initial Other Conveyed
Property hereunder or under the [Sale/Pooling] and Servicing Agreement.
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(h) Chief Executive Office. The chief executive office of GTFC
is located at 1100 Landmark Towers, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇.
SECTION 3.2. Representations and Warranties of CFSC. CFSC makes the
following representations and warranties, on which GTFC relies in selling,
assigning, transferring and conveying the Initial Loans and the Initial Other
Conveyed Property to CFSC hereunder. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Initial Loans and the Initial Other Conveyed Property
hereunder and the sale, transfer and assignment thereof by CFSC to the Trust
under the [Sale/Pooling] and Servicing Agreement.
(a) Organization and Good Standing. CFSC has been duly
organized and is validly existing and in good standing as a corporation
under the laws of the State of Minnesota, with the power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is currently conducted, and had
at all relevant times, and has, full power, authority and legal right
to acquire and own the Initial Loans and the Initial Other Conveyed
Property and to transfer the Initial Loans and the Initial Other
Conveyed Property to the Trust pursuant to the Sale and Servicing
Agreement.
(b) Due Qualification. CFSC is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions where the failure
to do so would materially and adversely affect (i) CFSC's ability to
acquire the Initial Loans or the Initial Other Conveyed Property, (ii)
the validity or enforceability of the Initial Loans and the Initial
Other Conveyed Property or (iii) CFSC's ability to perform its
obligations hereunder and under the Related Documents.
(c) Power and Authority. CFSC has the power, authority and
legal right to execute and deliver this Agreement and its Related
Documents and to carry out the terms hereof and thereof and to acquire
the Initial Loans and the Initial Other Conveyed Property hereunder;
and the execution, delivery and performance of this Agreement and its
Related Documents and all of the documents required pursuant hereto or
thereto have been duly authorized by CFSC by all necessary action.
(d) No Consent Required. CFSC is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency 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) Binding Obligation. This Agreement and each of its Related
Documents constitutes a legal, valid and binding obligation of CFSC,
enforceable against CFSC in accordance with its terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation and other similar laws and
to general equitable principles.
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(f) No Violation. The execution, delivery and performance by
CFSC of this Agreement, the consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents do
not and will not conflict with, result in any breach of any of the
terms and provisions of or constitute (with or without notice or lapse
of time) a default under the certificate of incorporation or bylaws of
CFSC, or conflict with or breach any of the terms or provisions of, or
constitute (with or without notice or lapse of time) a default under,
any indenture, agreement, mortgage, deed of trust or other instrument
to which CFSC is a party or by which CFSC is bound or to which any of
its properties are subject, 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
(other than the [Sale/Pooling] and Servicing Agreement and the
Indenture), or violate any law, order, rule or regulation, applicable
to CFSC or its properties, of any federal or state regulatory body or
any court, administrative agency, or other governmental instrumentality
having jurisdiction over CFSC or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of CFSC, threatened against CFSC, before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over CFSC or its
properties: (i) asserting the invalidity of this Agreement or any of
the Related Documents, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or any of the
Related Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by CFSC of its
obligations under, or the validity or enforceability of, this Agreement
or any of the Related Documents or (iv) that may adversely affect the
federal or state income tax attributes of, or seeking to impose any
excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Initial Loans and the Initial Other Conveyed
Property hereunder or the transfer of the Initial Loans and the Initial
Other Conveyed Property to the Trust pursuant to the Sale and Servicing
Agreement.
In the event of any breach of a representation and warranty made by CFSC
hereunder, GTFC covenants and agrees that it will not take any action to pursue
any remedy that it may have hereunder, in law, in equity or otherwise, until a
year and a day have passed since the later of (i) the date on which all
pass-through certificates or other similar securities issued by the Trust, or a
trust or similar vehicle formed by CFSC, have been paid in full, or (ii) all
Notes or other similar securities issued by the Trust, or a trust or similar
vehicle formed by CFSC, have been paid in full. GTFC and CFSC agree that damages
will not be an adequate remedy for such breach and that this covenant may be
specifically enforced by CFSC or by the Owner Trustee on behalf of the Trust.
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ARTICLE IV
COVENANTS OF GTFC
SECTION 4.1. Protection of Title of CFSC and the Trust.
(a) At or prior to the Closing Date or each Subsequent Transfer Date,
as the case may be, GTFC shall have filed or caused to be filed a UCC-1
financing statement, executed by GTFC as seller or debtor, naming CFSC as
purchaser or secured party and describing the Initial Loans and the Initial
Other Conveyed Property, with respect to this Agreement, and the Subsequent
Loans and the Subsequent Other Conveyed Property, with respect to each
Subsequent Purchase Agreement, being sold by it to CFSC as collateral, with the
office of the Secretary of State of the State of Minnesota and in such other
locations as CFSC shall have required. From time to time thereafter, GTFC shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain and protect the interest of CFSC
under this Agreement and each Subsequent Purchase Agreement and of the Trust
under the Sale and Servicing Agreement and each Subsequent Transfer Agreement in
the Initial Loans and the Initial Other Conveyed Property and the Subsequent
Loans and the Subsequent Other Conveyed Property, as the case may be, and in the
proceeds thereof. GTFC shall deliver (or cause to be delivered) to CFSC, the
Owner Trustee and the Indenture Trustee file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing. In the event that GTFC fails to perform its obligations
under this subsection, CFSC or the Owner Trustee may do so at the expense of
GTFC.
(b) GTFC shall give CFSC, the Indenture Trustee and the Owner Trustee
at least 60 days' prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement. GTFC
shall at all times maintain each office from which it services Loans and its
principal executive office within the United States of America.
(c) GTFC shall maintain its computer systems so that, from and after
the time of sale under this Agreement of the Initial Loans to CFSC, and from and
after the time of sale under each Subsequent Purchase Agreement of the
Subsequent Loans to CFSC, and the conveyance of the Initial Loans and the
Subsequent Loans by CFSC to the Trust, GTFC's master computer records (including
archives) that shall refer to an Initial Loan or Subsequent Loan indicate
clearly that such Initial Loan or Subsequent Loan has been sold to CFSC and has
been conveyed by CFSC to the Trust. Indication of the Trust's ownership of an
Initial Loan or Subsequent Loan shall be deleted from or modified on GTFC's
computer systems when, and only when, the Initial Loan or Subsequent Loan shall
become a Purchased Loan or shall have been paid in full.
(d) If at any time GTFC shall propose to sell, grant a security
interest in, or otherwise transfer any interest in [home equity/home improvement
loans] to any prospective purchaser, lender or other transferee, GTFC shall give
to such prospective purchaser, lender, or other transferee computer tapes,
records, or print-outs (including any restored from archives) that,
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if they shall refer in any manner whatsoever to any Initial Loan or Subsequent
Loan, shall indicate clearly that such Initial Loan or Subsequent Loan has been
sold to CFSC and is owned by the Trust.
SECTION 4.2. Other Liens or Interests. Except for the conveyances
hereunder and under any Subsequent Purchase Agreement, GTFC will not sell,
pledge, assign or transfer to any other Person, or grant, create, incur, assume
or suffer to exist any Lien on the Initial Loans or the Initial Other Conveyed
Property or on the Subsequent Loans or the Subsequent Other Conveyed Property,
or any interest therein, and GTFC shall defend the right, title, and interest of
CFSC and the Trust in and to the Initial Loans and the Initial Other Conveyed
Property and the Subsequent Loans and the Subsequent Other Conveyed Property
against all claims of third parties claiming through or under GTFC.
SECTION 4.3. Costs and Expenses. GTFC shall pay all reasonable costs
and disbursements in connection with the performance of its obligations
hereunder and under each Subsequent Purchase Agreement and its Related
Documents.
SECTION 4.4. Indemnification.
(a) GTFC shall defend, indemnify and hold harmless CFSC, the Trust, the
Owner Trustee, the Indenture Trustee and the Noteholders from and against any
and all costs, expenses, losses, damages, claims, and liabilities, arising out
of or resulting from any breach of any of GTFC's representations and warranties
contained herein or in any Subsequent Purchase Agreement.
(b) GTFC shall defend and indemnify CFSC, the Trust, the Owner Trustee,
the Indenture Trustee and the Noteholders against any and all costs, expenses,
losses, damages, claims and liabilities arising out of or resulting from any
action taken, or failed to be taken, by it in respect of any portion of the
Trust Property other than in accordance with this Agreement, each Subsequent
Purchase Agreement or the [Sale/Pooling] and Servicing Agreement and each
Subsequent Transfer Agreement.
(c) GTFC agrees to pay, and shall defend, indemnify and hold harmless
CFSC, the Trust, the Owner Trustee, the Indenture Trustee, the Backup Servicer
and the Noteholders from and against any taxes that may at any time be asserted
against CFSC, the Owner Trustee, the Indenture Trustee and the Noteholders with
respect to the transactions contemplated in this Agreement or in any Subsequent
Purchase Agreement, including, without limitation, any sales, gross receipts,
general corporation, tangible or intangible personal property, privilege, or
license taxes (but not including any taxes asserted with respect to, and as of
the date of, the sale, transfer and assignment of the Initial Loans and the
Initial Other Conveyed Property or the Subsequent Loans or Subsequent Other
Conveyed Property to CFSC and of the Trust Property to the Trust or the issuance
and original sale of the Notes, or asserted with respect to ownership of the
Initial Loans and Initial Other Conveyed Property or the Subsequent Loans or
Subsequent Other Conveyed Property or the Trust Property which shall be
indemnified by GTFC pursuant to clause (e) below, or federal, state or other
income taxes, arising out of distributions on the Notes or transfer taxes
arising in connection with the transfer of the Notes) and costs and
-11-
expenses in defending against the same, arising by reason of the acts to be
performed by GTFC under this Agreement or under any Subsequent Purchase
Agreement or imposed against such Persons.
(d) GTFC agrees to pay, and to indemnify, defend and hold harmless
CFSC, the Trust, the Owner Trustee, the Indenture Trustee and the Noteholders
from, any taxes which may at any time be asserted against such Persons with
respect to, and as of the date of, the conveyance or ownership of the Initial
Loans or the Initial Other Conveyed Property hereunder or the Subsequent Loans
or Subsequent Other Conveyed Property under each Subsequent Purchase Agreement
and the conveyance or ownership of the Trust Property under the [Sale/Pooling]
and Servicing Agreement and the Subsequent Transfer Agreements or the issuance
and original sale of the Notes, including, without limitation, any sales, gross
receipts, personal property, tangible or intangible personal property, privilege
or license taxes (but not including any federal or other income taxes, including
franchise taxes, arising out of the transactions contemplated hereby or transfer
taxes arising in connection with the transfer of Notes) and costs and expenses
in defending against the same, arising by reason of the acts to be performed by
GTFC under this Agreement or under any Subsequent Purchase Agreement or imposed
against such Persons.
(e) GTFC shall defend, indemnify, and hold harmless CFSC, the Owner
Trustee, the Security Insurer, the Indenture Trustee, the Trust and the
Noteholders from and against any and all costs, expenses, losses, claims,
damages, and liabilities to the extent that such cost, expense, loss, claim,
damage, or liability arose out of, or was imposed upon CFSC, the Trust, the
Indenture Trustee and the Noteholders through the negligence, willful
misfeasance, or bad faith of GTFC in the performance of its duties under this
Agreement or under any Subsequent Purchase Agreement or by reason of reckless
disregard of GTFC's obligations and duties under this Agreement or under any
Subsequent Purchase Agreement.
(f) GTFC shall indemnify, defend and hold harmless CFSC, the Owner
Trustee, the Security Insurer, the Indenture Trustee, the Trust and the
Noteholders from and against any loss, liability or expense incurred by reason
of the violation by GTFC of federal or state securities laws in connection with
the registration or the sale of the Notes.
(g) GTFC shall indemnify, defend and hold harmless CFSC, the Owner
Trustee, the Security Insurer, the Indenture Trustee, the Trust and the
Noteholders from and against any loss, liability or expense imposed upon, or
incurred by, CFSC, the Owner Trustee, the Indenture Trustee, the Trust or the
Noteholders as a result of the failure of any Initial Loan or Subsequent Loan,
or the sale of the related real estate, to comply with all requirements of
applicable law.
(h) GTFC shall defend, indemnify, and hold harmless CFSC from and
against all costs, expenses, losses, claims, damages, and liabilities arising
out of or incurred in connection with the acceptance or performance of GTFC's
trusts and duties as Servicer under the [Sale/Pooling] and Servicing Agreement,
except to the extent that such cost, expense, loss, claim, damage, or liability
shall be due to the willful misfeasance, bad faith, or negligence (except for
errors in judgment) of CFSC.
-12-
Indemnification under this Section 4.4 shall include reasonable fees
and expenses of counsel and expenses of litigation and shall survive termination
of the Trust. The indemnity obligations hereunder shall be in addition to any
obligation that GTFC may otherwise have.
ARTICLE V
REPURCHASES
SECTION 5.1. Repurchase of Loans Upon Breach of Warranty. Upon the
occurrence of a Repurchase Event GTFC shall, unless such breach shall have been
cured in all material respects, repurchase such Loan from the Trust and, on or
before the related Deposit Date, GTFC shall pay the Purchase Amount to the Trust
pursuant to Section ___ of the [Sale/Pooling] and Servicing Agreement. It is
understood and agreed that, except as set forth in Section 6.1, the obligation
of GTFC to repurchase any Loan as to which a breach has occurred and is
continuing shall, if such obligation is fulfilled, constitute the sole remedy
against GTFC for such breach available to CFSC, the Noteholders or the Indenture
Trustee on behalf of Noteholders. The provisions of this Section 5.1 are
intended to grant the Owner Trustee and the Indenture Trustee a direct right
against GTFC to demand performance hereunder, and in connection therewith, GTFC
waives any requirement of prior demand against CFSC with respect to such
repurchase obligation. Any such purchase shall take place in the manner
specified in Section ___ of the [Sale/Pooling] and Servicing Agreement.
Notwithstanding any other provision of this Agreement, any Subsequent Purchase
Agreement or the Sale and Servicing Agreement or any Subsequent Transfer
Agreement to the contrary, the obligation of GTFC under this Section shall not
terminate upon a termination of GTFC as Servicer under the Sale and Servicing
Agreement and shall be performed in accordance with the terms hereof
notwithstanding the failure of the Servicer or CFSC to perform any of their
respective obligations with respect to such Loan under the [Sale/Pooling] and
Servicing Agreement.
In addition to the foregoing and notwithstanding whether the related
Loan shall have been purchased by GTFC, GTFC shall indemnify the Owner Trustee,
the Indenture Trustee, the Trust and the Noteholders against all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel, which may be asserted against or incurred by any of them as
a result of third party claims arising out of the events or facts giving rise to
such Repurchase Events.
SECTION 5.2. Reassignment of Purchased Loans. Upon deposit in the
Collection Account of the Purchase Amount of any Loan repurchased by GTFC under
Section 5.1, CFSC and the Owner Trustee shall take such steps as may be
reasonably requested by GTFC in order to assign to GTFC all of CFSC's and the
Trust's right, title and interest in and to such Loan and all security and
documents and all Other Conveyed Property conveyed to CFSC and the Trust
directly relating thereto, without recourse, representation or warranty, except
as to the absence of liens, charges or encumbrances created by or arising as a
result of actions of CFSC or the Owner Trustee. Such assignment shall be a sale
and assignment outright, and not for security. If, following the reassignment of
a Purchased Loan, in any enforcement suit or legal proceeding, it is held that
GTFC may not enforce any such Loan on the ground that it shall not be a real
party in interest or a holder entitled to enforce the Loan, CFSC and the Owner
Trustee
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shall, at the expense of GTFC, take such steps as GTFC deems reasonably
necessary to enforce the Loan, including bringing suit in CFSC's or the Owner
Trustee's name.
SECTION 5.3. Waivers. No failure or delay on the part of CFSC, or the
Owner Trustee as assignee of CFSC, in exercising any power, right or remedy
under this Agreement or under any Subsequent Purchase Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or future exercise thereof or the exercise of
any other power, right or remedy.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Liability of GTFC. GTFC shall be liable in accordance
herewith only to the extent of the obligations in this Agreement or in any
Subsequent Purchase Agreement specifically undertaken by GTFC and the
representations and warranties of GTFC.
SECTION 6.2. Failure of GTFC to Sell Subsequent Loans. In the event
that GTFC shall fail to deliver and sell to CFSC any or all of the Subsequent
Loans required under this Agreement and the Pre-Funded Amount at the end of the
Funding Period is greater than $100,000, GTFC shall be obligated to pay to CFSC
the Liquidated Damages on the Business Day immediately preceding the
Distribution Date on which the Funding Period ends (or, if the Funding Period
does not end on a Distribution Date, on the first Distribution Date following
the end of the Funding Period).
SECTION 6.3. Merger or Consolidation of GTFC or CFSC. Any corporation
or other entity (i) into which GTFC or CFSC may be merged or consolidated, (ii)
resulting from any merger or consolidation to which GTFC or CFSC is a party or
(iii) succeeding to the business of GTFC or CFSC, in the case of CFSC, which
corporation has a certificate of incorporation containing provisions relating to
limitations on business and other matters substantively identical to those
contained in CFSC's certificate of incorporation, provided that in any of the
foregoing cases such corporation shall execute an agreement of assumption to
perform every obligation of GTFC or CFSC, as the case may be, under this
Agreement and each Subsequent Purchase Agreement and, whether or not such
assumption agreement is executed, shall be the successor to GTFC or CFSC, as the
case may be, hereunder and under each such Subsequent Purchase Agreement
(without relieving GTFC or CFSC of its responsibilities hereunder, if it
survives such merger or consolidation) without the execution or filing of any
document or any further act by any of the parties to this Agreement or each
Subsequent Purchase Agreement. GTFC or CFSC shall promptly inform the other
party, the Owner Trustee and the Indenture Trustee of such merger, consolidation
or purchase and assumption. Notwithstanding the foregoing, as a condition to the
consummation of the transactions referred to in clauses (i), (ii) and (iii)
above, (x) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Sections 3.1 and 3.2 and this
Agreement, or similar representation or warranty made in any Subsequent Purchase
Agreement, shall have been breached (for purposes hereof, such representations
and warranties shall speak as of the date of the consummation of such
transaction), (y) GTFC or CFSC, as applicable, shall have delivered written
notice of such consolidation, merger or purchase and assumption to the Rating
Agencies prior to the
-14-
consummation of such transaction and shall have delivered to the Owner Trustee
and the Indenture Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section 6.3 and that all conditions precedent, if
any, provided for in this Agreement, or in each Subsequent Purchase Agreement,
relating to such transaction have been complied with, and (z) GTFC or CFSC, as
applicable, shall have delivered to the Owner Trustee and the Indenture Trustee
an Opinion of Counsel, stating that, in the opinion of such counsel, either (A)
all financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary to preserve and protect the interest
of the Owner Trustee in the Trust Property and reciting the details of the
filings or (B) no such action shall be necessary to preserve and protect such
interest.
SECTION 6.4. Limitation on Liability of GTFC and Others. GTFC and any
director, officer, employee or agent may rely in good faith on the advice of
counsel or on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this Agreement.
GTFC shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations under this Agreement, any
Subsequent Purchase Agreement or its Related Documents and that in its opinion
may involve it in any expense or liability.
SECTION 6.5. GTFC May Own Notes. Subject to the provisions of the
[Sale/Pooling] and Servicing Agreement, GTFC and any Affiliate of GTFC may in
its individual or any other capacity become the owner or pledgee of Notes with
the same rights as it would have if it were not GTFC or an Affiliate thereof.
SECTION 6.6. Amendment.
(a) This Agreement and any Subsequent Purchase Agreement may be amended
by GTFC and CFSC and without the consent of the Owner Trustee, the Indenture
Trustee or any of the Noteholders (A) to cure any ambiguity or (B) to correct
any provisions in this Agreement or any such Subsequent Purchase Agreement;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel delivered to the Owner Trustee and the Indenture Trustee, adversely
affect in any material respect the interests of any Noteholder.
(b) This Agreement may also be amended from time to time by GTFC and
CFSC, with the prior written consent of the Owner Trustee and the Indenture
Trustee and a Note 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 the Noteholders; provided, however,
that no such amendment shall (i) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on Loans,
distributions that shall be required to be made on any Note or the Note Interest
Rate or (ii) reduce the aforesaid percentage required to consent to any such
amendment or any waiver hereunder, without the consent of the Holders of all
Notes then outstanding.
-15-
(c) Prior to the execution of any such amendment or consent, GTFC shall
have furnished 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
Owner Trustee or the Indenture Trustee, as applicable, shall furnish written
notification of the substance of such amendment or consent to each Noteholder.
(e) It shall not be necessary for the consent of Noteholders pursuant
to this Section 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 of evidencing the
authorization of the execution thereof by Noteholders shall be subject to such
reasonable requirements as the Owner Trustee or the Indenture Trustee, as
applicable, may prescribe, including the establishment of record dates. The
consent of any Holder of a Note 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 Note and of any Note issued upon the
transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made upon the Note.
SECTION 6.7. Notices. All demands, notices and communications to GTFC
or CFSC hereunder shall be in writing, personally delivered, or sent by
telecopier (subsequently confirmed in writing), reputable overnight courier or
mailed by certified mail, return receipt requested, and shall be deemed to have
been given upon receipt (a) in the case of GTFC, to Green Tree Financial Corp.,
1100 Landmark Towers, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Chief Financial Officer, or such other address as shall be designated
by GTFC in a written notice delivered to the other party or to the Owner Trustee
or the Indenture Trustee, as applicable, or (b) in case of CFSC, to Conseco
Finance Securitizations Corp., 1100 Landmark Towers, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Chief Financial Officer.
SECTION 6.8. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and the Related Documents set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and the
Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 6.9. Severability of Provisions. If any one or more of the
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.10. Intention of the Parties. The execution and delivery of
this Agreement and of each Subsequent Purchase Agreement shall constitute an
acknowledgment by GTFC and CFSC that they intend that each assignment and
transfer herein and therein contemplated constitute a sale and assignment
outright, and not for security, of the Initial Loans
-16-
and the Initial Other Conveyed Property and the Subsequent Loans and Subsequent
Other Conveyed Property, as the case may be, conveying good title thereto free
and clear of any Liens, from GTFC to CFSC, and that the Initial Loans and the
Initial Other Conveyed Property and the Subsequent Loans and Subsequent Other
Conveyed Property shall not be a part of GTFC's estate in the event of the
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding,
or other proceeding under any federal or state bankruptcy or similar law, or the
occurrence of another similar event, of, or with respect to, GTFC. In the event
that such conveyance is determined to be made as security for a loan made by
CFSC, the Trust or the Noteholders to GTFC, the parties intend that GTFC shall
have granted to CFSC a security interest in all of GTFC's right, title and
interest in and to the Initial Loans and the Initial Other Conveyed Property and
the Subsequent Loans and Subsequent Other Conveyed Property, as the case may be,
conveyed pursuant to Section 2.1 hereof or pursuant to any Subsequent Purchase
Agreement, and that this Agreement and each Subsequent Purchase Agreement shall
constitute a security agreement under applicable law.
SECTION 6.11. Governing Law. This Agreement shall be construed in
accordance with, the laws of the State of New York 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 6.12. Counterparts. For the purpose of facilitating the
execution of this Agreement 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 6.13. Conveyance of the Initial Loans and the Initial Other
Conveyed Property to the Trust. GTFC acknowledges that CFSC intends, pursuant to
the Sale and Servicing Agreement, to convey the Initial Loans and the Initial
Other Conveyed Property, together with its rights under this Agreement, to the
Trust on the date hereof. GTFC acknowledges and consents to such conveyance and
waives any further notice thereof and covenants and agrees that the
representations and warranties of GTFC contained in this Agreement and the
rights of CFSC hereunder are intended to benefit the Owner Trustee, the
Indenture Trustee, the Trust, and the Noteholders. In furtherance of the
foregoing, GTFC covenants and agrees to perform its duties and obligations
hereunder, in accordance with the terms hereof for the benefit of the Owner
Trustee, the Indenture Trustee, the Trust, and the Noteholders and that,
notwithstanding anything to the contrary in this Agreement, GTFC shall be
directly liable to the Owner Trustee and the Trust (notwithstanding any failure
by the Servicer or CFSC to perform its duties and obligations hereunder or under
the [Sale/Pooling] and Servicing Agreement) and that the Owner Trustee may
enforce the duties and obligations of GTFC under this Agreement against GTFC for
the benefit of the Trust and the Noteholders.
SECTION 6.14. Nonpetition Covenant. Neither CFSC nor GTFC shall
petition or otherwise invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Trust (or, in the
case of GTFC, against CFSC) under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust (or CFSC) or any
-17-
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Trust (or CFSC).
-18-
IN WITNESS WHEREOF, the parties have caused this Transfer Agreement to
be duly executed by their respective officers as of the day and year first above
written.
CONSECO FINANCE SECURITIZATIONS CORP.,
as Purchaser
By _______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
GREEN TREE FINANCIAL CORP., as Seller
By _______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
-19-
SCHEDULE A
SCHEDULE OF INITIAL LOANS
[Available in transactional files.]
A-1
EXHIBIT A
FORM OF
SUBSEQUENT TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
GREEN TREE FINANCIAL CORP.
Seller
dated as of
________, 1999
SUBSEQUENT TRANSFER AGREEMENT, dated as of ________, 1999, between
Conseco Finance Securitizations Corp., a Minnesota corporation, as purchaser
("CFSC"), and Green Tree Financial Corp., a Delaware corporation, as seller
("GTFC"), pursuant to the Transfer Agreement, dated as of __________, 1999,
between CFSC and GTFC.
W I T N E S S E T H:
WHEREAS, GTFC and CFSC are parties to a Transfer Agreement, dated as of
__________, 1999 (as amended or supplemented, the "Transfer Agreement");
WHEREAS, pursuant to the Transfer Agreement and this Agreement, CFSC
has agreed to purchase from GTFC and GTFC is transferring to CFSC the Subsequent
Loans and the Subsequent Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, CFSC and GTFC, intending to be legally
bound, hereby agree as follows:
1. Defined Terms. Capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned to such terms in the Transfer
Agreement.
"Schedule of Subsequent Loans" means the schedule of all retail
installment sales contracts and promissory notes sold and transferred pursuant
to this Agreement attached hereto as Schedule A, which Schedule of Subsequent
Loans shall supplement the Schedule of Initial Loans attached to the Transfer
Agreement.
"Subsequent Cutoff Date" shall mean, with respect to the Subsequent
Loans conveyed hereby, _________, 1999.
"Subsequent Other Conveyed Property" means, for the purposes of this
Agreement, all monies at any time paid or payable on the Subsequent Loans
conveyed hereby or in respect thereof after the Subsequent Cutoff Date
(including amounts due on or before the Subsequent Cutoff Date but received by
GTFC after the Subsequent Cutoff Date), an assignment of security interests in
the related real estate and any and all other documents or electronic records
that GTFC keeps on file in accordance with its customary procedures relating to
the Subsequent Loans, the Obligors or the related real estate, property
(including the right to receive future Liquidation Proceeds) that secures a
Subsequent Loan and that has been acquired by or on behalf of the Trust pursuant
to liquidation of such Subsequent Loan, and all proceeds of the foregoing.
"Subsequent Loans" means, for purposes of this Agreement, the Loans
listed in the Schedule of Subsequent Loans.
"Subsequent Transfer Date" shall mean, with respect to the Subsequent
Loans conveyed hereby, _______, 1999.
Ex. A-1
2. Conveyance of the Subsequent Loans and the Subsequent Other Conveyed
Property. Subject to the terms and conditions of this Agreement and the Transfer
Agreement, GTFC hereby sells, transfers, assigns, and otherwise conveys to CFSC
without recourse (but without limitation of its obligations in this Agreement
and the Transfer Agreement), and CFSC hereby purchases, all right, title and
interest of GTFC in and to the Subsequent Loans and the Subsequent Other
Conveyed Property. It is the intention of GTFC and CFSC that the transfer and
assignment contemplated by this Agreement shall constitute a sale of the
Subsequent Loans and the Subsequent Other Conveyed Property from GTFC to CFSC,
conveying good title thereto free and clear of any Liens, and the Subsequent
Loans and the Subsequent Other Conveyed Property shall not be part of GTFC's
estate in the event of the filing of a bankruptcy petition by or against GTFC
under any bankruptcy or similar law.
3. Purchase Price. Simultaneously with the conveyance of the Subsequent
Loans and the Subsequent Other Conveyed Property to CFSC, CFSC has paid or
caused to be paid to or upon the order of GTFC, by wire transfer of immediately
available funds (representing certain proceeds to CFSC from the sale of the
Notes on deposit in the Pre-Funding Account), the amount of funds as specified
below:
(i) Principal Balance of Subsequent Loans: $_______
(ii) Proceeds to Seller: $_______
4. Representations and Warranties of GTFC. GTFC makes the following
representations and warranties, on which CFSC relies in purchasing the
Subsequent Loans and the Subsequent Other Conveyed Property and in transferring
the Subsequent Loans and the Subsequent Other Conveyed Property to the Trust
under the Subsequent Transfer Agreement and in consideration of which the
Security Insurer has relied in issuing the Note Policy. Such representations are
made as of the execution and delivery of this Agreement, but shall survive the
sale, transfer and assignment of the Subsequent Loans and the Subsequent Other
Conveyed Property hereunder, and the sale, transfer and assignment thereof by
CFSC to the Trust under the Subsequent Transfer Agreement. GTFC and CFSC agree
that CFSC will assign to the Trust all of CFSC's rights under the Agreement, and
that the Trust will thereafter be entitled to enforce this Agreement against
GTFC in the Trust's own name.
(a) Schedule of Representations. The representations and
warranties set forth in Section _____ of the [Sale/Pooling] and
Servicing Agreement are true and correct.
(b) Organization and Good Standing. GTFC 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 such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Subsequent Loans and the Subsequent Other
Conveyed Property transferred to CFSC.
(c) Due Qualification. GTFC is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all
Ex. A-2
jurisdictions in which the ownership or lease of its property or the
conduct of its business requires such qualification.
(d) Power and Authority. GTFC has the power and authority to
execute and deliver this Agreement and the Subsequent Transfer
Agreement and to carry out its terms and their terms, respectively;
GTFC has full power and authority to sell and assign the Subsequent
Loans and the Subsequent Other Conveyed Property to be sold and
assigned to and deposited with CFSC hereunder and has duly authorized
such sale and assignment to CFSC by all necessary corporate action; and
the execution, delivery and performance of this Agreement and the
Subsequent Transfer Agreement have been duly authorized by GTFC by all
necessary corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and the
Subsequent Transfer Agreement have been duly executed and delivered,
shall effect a valid sale, transfer and assignment of the Subsequent
Loans and the Subsequent Other Conveyed Property, enforceable against
GTFC and creditors of and purchasers from GTFC; and this Agreement and
the Subsequent Transfer Agreement constitute legal, valid and binding
obligations of GTFC enforceable in accordance with their respective
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations
on the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(f) No Violation. The consummation of the transactions
contemplated by this Agreement and the Subsequent Transfer Agreement
and the fulfillment of the terms of this Agreement and the Subsequent
Transfer Agreement 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, the articles of incorporation
or bylaws of GTFC, or any indenture, agreement, mortgage, deed of trust
or other instrument to which GTFC 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, other than this Agreement
and the Subsequent Transfer Agreement, or violate any law, order, rule
or regulation applicable to GTFC of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over GTFC or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending or, to GTFC's knowledge, threatened against GTFC, before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over GTFC or its
properties (i) asserting the invalidity of this Agreement or the
Subsequent Transfer Agreement, (ii) seeking to prevent or the
consummation of any of the transactions contemplated by this Agreement
or the Subsequent Transfer Agreement, (iii) seeking any determination
or ruling that might materially and adversely affect the performance by
GTFC of its obligations under, or the validity or enforceability of,
this Agreement or the Subsequent Transfer Agreement, or (iv) seeking to
affect adversely the federal income tax or other federal, state or
local tax attributes of, or
Ex. A-3
seeking to impose any excise, franchise, transfer or similar tax upon,
the transfer and acquisition of the Subsequent Loans and the Subsequent
Other Conveyed Property hereunder or under the Subsequent Transfer
Agreement.
(h) Insolvency. As of the Subsequent Cutoff Date and the
Subsequent Transfer Date, neither GTFC nor CFSC is insolvent nor will
either of them have been made insolvent after giving effect to the
conveyance set forth in Section 2 of this Agreement, nor are any of
them aware of any pending insolvency.
(i) Chief Executive Office. The chief executive office of GTFC
is located at 1100 Landmark Towers, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
5. Representations and Warranties of CFSC. CFSC makes the following
representations and warranties, on which GTFC relies in selling, assigning,
transferring and conveying the Subsequent Loans and the Subsequent Other
Conveyed Property to CFSC hereunder. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Subsequent Loans and the Subsequent Other Conveyed
Property hereunder and the sale, transfer and assignment thereof by CFSC to the
Trust under the Subsequent Transfer Agreement.
(a) Organization and Good Standing. CFSC has been duly
organized and is validly existing and in good standing as a corporation
under the laws of the State of Minnesota, with the power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is currently conducted, and had
at all relevant times, and has, full power, authority and legal right
to acquire and own the Subsequent Loans and the Subsequent Other
Conveyed Property, and to transfer the Subsequent Loans and the
Subsequent Other Conveyed Property to the Trust pursuant to the
Subsequent Transfer Agreement.
(b) Due Qualification. CFSC is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions where the failure
to do so would materially and adversely affect CFSC's ability to
acquire the Subsequent Loans or the Subsequent Other Conveyed Property
or the validity or enforceability of the Subsequent Loans and the
Subsequent Other Conveyed Property or to perform CFSC's obligations
hereunder and under the Subsequent Transfer Agreement.
(c) Power and Authority. CFSC has the power, authority and
legal right to execute and deliver this Agreement and to carry out the
terms hereof and to acquire the Subsequent Loans and the Subsequent
Other Conveyed Property hereunder; and the execution, delivery and
performance of this Agreement and all of the documents required
pursuant hereto have been duly authorized by CFSC by all necessary
action.
(d) No Consent Required. CFSC is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the
Ex. A-4
execution, delivery or performance of this Agreement and the Subsequent
Transfer Agreement, except for such as have been obtained, effected or
made.
(e) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of CFSC, enforceable against CFSC in
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws and to general equitable principles.
(f) No Violation. The execution, delivery and performance by
CFSC of this Agreement, the consummation of the transactions
contemplated by this Agreement and the Subsequent Transfer Agreement
and the fulfillment of the terms of this Agreement and the Subsequent
Transfer Agreement do not and will not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the certificate of
incorporation or bylaws of CFSC, or conflict with or breach any of the
terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement, mortgage, deed of
trust or other instrument to which CFSC is a party or by which CFSC is
bound or to which any of its properties are subject, 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 (other than the [Sale/Pooling] and Servicing
Agreement and the Subsequent Transfer Agreement), or violate any law,
order, rule or regulation, applicable to CFSC or its properties, of any
federal or state regulatory body, any court, administrative agency, or
other governmental instrumentality having jurisdiction over CFSC or any
of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of CFSC, threatened against CFSC, before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over CFSC or its
properties: (i) asserting the invalidity of this Agreement or the
Subsequent Transfer Agreement, (ii) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement or the
Subsequent Transfer Agreement, (iii) seeking any determination or
ruling that might materially and adversely affect the performance by
CFSC of its obligations under, or the validity or enforceability of,
this Agreement or the Subsequent Transfer Agreement, or (iv) that may
adversely affect the federal or state income tax attributes of, or
seeking to impose any excise, franchise, transfer or similar tax upon,
the transfer and acquisition of the Subsequent Loans and the Subsequent
Other Conveyed Property hereunder or the transfer of the Subsequent
Loans and the Subsequent Other Conveyed Property to the Trust pursuant
to the Subsequent Transfer Agreement.
In the event of any breach of a representation and warranty made by CFSC
hereunder, GTFC covenants and agrees that it will not take any action to pursue
any remedy that it may have hereunder, in law, in equity or otherwise, until a
year and a day have passed since the date on which all pass-through certificates
or other similar securities issued by the Trust, or a trust or similar vehicle
formed by CFSC, have been paid in full. GTFC and CFSC agree that damages
Ex. A-5
will not be an adequate remedy for such breach and that this covenant may be
specifically enforced by CFSC or by the Owner Trustee on behalf of the Trust.
6. Conditions Precedent. The obligation of CFSC to acquire the
Subsequent Loans and the Subsequent Other Conveyed Property hereunder is subject
to the satisfaction, on or prior to the Subsequent Transfer Date, of the
following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the GTFC in Section 4 of this
Agreement and in Section 3.1 of the Transfer Agreement shall be true
and correct as of the date of this Agreement and as of the Subsequent
Transfer Date.
(b) Transfer Agreement Conditions. Each of the conditions set
forth in Section 2.3(b) of the Transfer Agreement applicable to the
conveyance of Subsequent Loans and the Subsequent Other Conveyed
Property shall have been satisfied.
(c) Collections. GTFC shall have deposited to the Collection
Account all collections in respect of Subsequent Loans required to be
deposited by CFSC to the Collection Account pursuant to Section _____
of the [Sale/Pooling] and Servicing Agreement.
(d) Additional Information. GTFC shall have delivered to CFSC
such information as was reasonably requested by CFSC to satisfy itself
as to (i) the accuracy of the representations and warranties set forth
in Section 4 of this Agreement and in Section 3.1 of the Transfer
Agreement and (ii) the satisfaction of the conditions set forth in this
Section 6.
7. Ratification of Transfer Agreement. As supplemented by this
Agreement, the Transfer Agreement is in all respects ratified and confirmed and
the Transfer Agreement as so supplemented by this Agreement shall be read, taken
and construed as one and the same instrument.
8. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of New York 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.
9. Counterparts. For the purposes of facilitating the execution of this
Agreement 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.
10. Conveyance of the Subsequent Loans and the Subsequent Other
Conveyed Property to the Trust. GTFC acknowledges that CFSC intends, pursuant to
a Subsequent Transfer Agreement, to convey the Subsequent Loans and the
Subsequent Other Conveyed Property, together with its rights under this
Agreement and under the Transfer Agreement, to the
Ex. A-6
Trust on the date hereof. GTFC acknowledges and consents to such conveyance and
waives any further notice thereof and covenants and agrees that the
representations and warranties of GTFC contained in this Agreement and the
rights of CFSC hereunder and thereunder are intended to benefit [the Owner
Trustee, the Indenture Trustee,] the Trust and the Noteholders. In furtherance
of the foregoing, GTFC covenants and agrees to perform its duties and
obligations hereunder and under the Transfer Agreement, in accordance with the
terms hereof and thereof for the benefit of [the Owner Trustee, the Indenture
Trustee,] the Trust and the Noteholders and that, notwithstanding anything to
the contrary in this Agreement or in the Transfer Agreement, GTFC shall be
directly liable to the [Owner Trustee] and the Trust (notwithstanding any
failure by CFSC to perform its duties and obligations hereunder or under the
[Sale/Pooling] and Servicing Agreement or the Subsequent Transfer Agreement) and
that the [Owner Trustee] may enforce the duties and obligations of GTFC under
this Agreement and the Transfer Agreement against GTFC for the benefit of the
Trust and the Noteholders.
Ex. A-7
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
CONSECO FINANCE SECURITIZATIONS CORP.,
as Purchaser
By _______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
GREEN TREE FINANCIAL CORP., as Seller
By _______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
Ex. A-8