EXHIBIT 4.5
----------------------------------------------------
CONSECO FINANCE RECREATIONAL ENTHUSIAST CONSUMER TRUST 2000-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 June 29, 2000
----------------------------------------------------
This ADMINISTRATION AGREEMENT dated as of June 1, 2000 (this "Agreement"),
among Conseco Finance Recreational Enthusiast Consumer Trust 2000-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 six classes of Asset-Backed Notes
(collectively, the "Notes"), pursuant to the Indenture dated as of June 1, 2000
(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 June 1, 2000 (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 June 1, 2000 (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 June 1, 2000
(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;
-2-
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 protect the validity and
-3-
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 (Sections 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);
(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);
-4-
(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 (Section 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 (Section 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);
-5-
(AB) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and notice
provisions (Section 11.06);
(AC) the recording of the Indenture, if applicable (Section 11.15);
and
(AD) the preparation of Definitive Notes in accordance with the
Instructions of the Depository (Section 2.11).
(ii) 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.
(b) 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 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
-6-
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 (S) 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.
(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
-7-
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.
(c) 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 or 10.04 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.
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
-8-
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
-9-
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);
(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 clauses
(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 Section 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.
-10-
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:
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
-11-
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.
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.
-12-
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 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 2000-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.
-13-
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 2000-A
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Financial Services Officer
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: Senior Vice President and Treasurer
-14-
EXHIBIT A
POWER OF ATTORNEY
STATE OF )
)
COUNTY OF )
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
2000-A (the "Trust"), does hereby make, constitute and appoint Conseco Finance
Servicing Corporation, as administrator under the Administration Agreement dated
as of June 1, 2000 (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.
-1-
Capitalized terms that are used and not otherwise defined herein shall have
the meanings ascribed thereto in the Administration Agreement.
EXECUTED this ____ of __________, 2000.
WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Owner Trustee
By: _____________________________________
Name:________________________________
Title:_______________________________
STATE OF )
)
COUNTY OF )
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 ________________, 2000.
Notary Public - State of
-2-