EXHIBIT 4.1
CONSECO FINANCE HOME LOAN TRUST 1999-G
TRUST AGREEMENT
Dated as of September 1, 1999
between
CONSECO FINANCE SECURITIZATIONS CORP.,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS.................................................................................1-1
SECTION 1.1. Definitions......................................................................1-1
SECTION 1.2. Usage of Terms...................................................................1-4
SECTION 1.3. Calculations.....................................................................1-5
SECTION 1.4. Section References...............................................................1-5
SECTION 1.5. Action by or Consent of Certificateholders.......................................1-5
ARTICLE II CREATION OF TRUST...........................................................................2-1
SECTION 2.1. Creation of Trust................................................................2-1
SECTION 2.2. Office...........................................................................2-1
SECTION 2.3. Purposes and Powers..............................................................2-1
SECTION 2.4. Appointment of Owner Trustee.....................................................2-2
SECTION 2.5. Initial Capital Contribution of Trust Estate.....................................2-2
SECTION 2.6. Declaration of Trust.............................................................2-2
SECTION 2.7. Liability of the Certificateholders..............................................2-3
SECTION 2.8. Title to Trust Property..........................................................2-3
SECTION 2.9. Situs of Trust...................................................................2-3
SECTION 2.10. Representations and Warranties of the Depositor..................................2-3
SECTION 2.11. Federal Income Tax Allocations...................................................2-5
SECTION 2.12. Covenants of the Certificateholders..............................................2-5
ARTICLE III THE CERTIFICATES............................................................................3-1
SECTION 3.1. Initial Ownership................................................................3-1
SECTION 3.2. The Certificates.................................................................3-1
SECTION 3.3. Authentication of Certificates...................................................3-1
SECTION 3.4. Registration of Transfer and Exchange of Certificates............................3-2
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates................................3-5
SECTION 3.6. Persons Deemed Certificateholders................................................3-5
SECTION 3.7. Access to List of Certificateholders' Names and Addresses........................3-5
SECTION 3.8. Maintenance of Office or Agency..................................................3-6
SECTION 3.9. Appointment of Paying Agent......................................................3-6
ARTICLE IV ACTIONS BY OWNER TRUSTEE....................................................................4-1
SECTION 4.1. Restriction on Power of Certificateholders.......................................4-1
SECTION 4.2. Prior Notice to Certificateholders with Respect to Certain Matters...............4-1
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy..........................4-1
SECTION 4.4. Restrictions on Certificateholders' Power........................................4-1
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES..................................................5-1
SECTION 5.1. Trust Accounts...................................................................5-1
SECTION 5.2. Application of Funds in Certificate Distribution Account.........................5-2
SECTION 5.3. Method of Payment................................................................5-3
-i-
SECTION 5.4. No Segregation of Monies; No Interest............................................5-3
SECTION 5.5. Accounting; Reports; Tax Returns.................................................5-3
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE.......................................................6-1
SECTION 6.1. General Authority................................................................6-1
SECTION 6.2. General Duties...................................................................6-1
SECTION 6.3. Action upon Instruction..........................................................6-1
SECTION 6.4. No Duties Except as Specified in this Agreement
or in Instructions...............................................................6-3
SECTION 6.5. No Action Except under Specified Documents
or Instructions..................................................................6-3
SECTION 6.6. Restrictions.....................................................................6-4
SECTION 6.7. Administration Agreement.........................................................6-4
ARTICLE VII CONCERNING THE OWNER TRUSTEE................................................................7-1
SECTION 7.1. Acceptance of Trust and Duties...................................................7-1
SECTION 7.2. Furnishing of Documents..........................................................7-3
SECTION 7.3. Representations and Warranties...................................................7-3
SECTION 7.4. Reliance; Advice of Counsel......................................................7-4
SECTION 7.5. Not Acting in Individual Capacity................................................7-4
SECTION 7.6. Owner Trustee Not Liable for Certificates, Notes or Loans........................7-4
SECTION 7.7. Owner Trustee May Own Certificates and Notes.....................................7-5
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE...............................................................8-1
SECTION 8.1. Owner Trustee's Fees and Expenses................................................8-1
SECTION 8.2. Indemnification..................................................................8-1
SECTION 8.3. Nonrecourse Obligations..........................................................8-1
ARTICLE IX TERMINATION.................................................................................9-1
SECTION 9.1. Termination of the Trust.........................................................9-1
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES.............................................................................10-1
SECTION 10.1. Eligibility Requirements for Owner Trustee......................................10-1
SECTION 10.2. Resignation or Removal of Owner Trustee.........................................10-1
SECTION 10.3. Successor Owner Trustee.........................................................10-2
SECTION 10.4. Merger or Consolidation of Owner Trustee........................................10-2
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee...................................10-2
ARTICLE XI MISCELLANEOUS PROVISIONS...................................................................11-1
SECTION 11.1. Amendment.......................................................................11-1
SECTION 11.2. No Recourse.....................................................................11-2
SECTION 11.3. No Petition.....................................................................11-2
SECTION 11.4. Governing Law...................................................................11-2
SECTION 11.5. Severability of Provisions......................................................11-3
SECTION 11.6. Certificates Nonassessable and Fully Paid.......................................11-3
-ii-
SECTION 11.7. Third-Party Beneficiaries.......................................................11-3
SECTION 11.8. Counterparts....................................................................11-3
SECTION 11.9. Notices.........................................................................11-3
SECTION 11.10. Limitation of Liability.........................................................11-4
EXHIBIT A - CERTIFICATE OF TRUST.............................................................................A-1
EXHIBIT B-1- FORM OF CLASS B-1 CERTIFICATE....................................................................B-1
EXHIBIT B-2- FORM OF CLASS B-2 CERTIFICATE....................................................................B-2
EXHIBIT C - FORM OF CLASS C CERTIFICATE......................................................................C-1
EXHIBIT D - FORM OF REPRESENTATION LETTER AND CERTIFICATION..................................................D-1
EXHIBIT E - FORM OF CERTIFICATE DEPOSITORY AGREEMENT.........................................................E-1
-iii-
THIS TRUST AGREEMENT, dated as of September 1, 1999, is made between
Conseco Finance Securitizations Corp., a Minnesota corporation, as depositor
(the "Seller"), and Wilmington Trust Company, a Delaware banking corporation, as
owner trustee (in such capacity, the "Owner Trustee").
In consideration of the mutual agreements herein contained, and of
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
Unless otherwise expressly defined herein, the terms defined in the
Sale and Servicing Agreement (defined below) shall have the same meanings in
this Agreement. Whenever capitalized and used in this Agreement, the following
words and phrases, unless otherwise specified, shall have the following
meanings:
Act: The meaning assigned to such term in Section 3.4(c).
Administration Agreement: The Administration Agreement, dated as of
September 1, 1999, among the Administrator, the Trust, and the Indenture
Trustee, as the same may be amended and supplemented from time to time.
Administrator: Conseco Finance Servicing Corp., a Delaware corporation,
or any successor Administrator under the Administration Agreement.
Agreement or this Agreement: This Trust Agreement, all amendments and
supplements thereto and all exhibits and schedules to any of the foregoing.
Authentication Agent: Wilmington Trust Company, or its successor in
interest, and any successor authentication agent appointed as provided in this
Agreement.
Book-Entry Certificate: any Certificate registered in the name of the
Depository or its nominee ownership of which is reflected on the books of the
Depository or on the books of a person maintaining an account with such
Depository (directly or as an indirect participant in accordance with the rules
of such Depository).
Business Trust Statute: Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code ss. 3801 et seq., as the same may be amended from time to time.
Certificates: The Class B-1 Certificates, Class B-2 Certificates and
Class C Certificates.
1-1
Certificate Depository Agreement: The agreement among the Trust, the
Owner Trustee, the Administrator and The Depository Trust Company, dated as of
the Closing Date, relating to the Class B-1 and Class B-2 Certificates,
substantially in the form attached hereto as Exhibit E.
Certificate Distribution Account: The account designated as the
Certificate Distribution Account in, and which is established and maintained
pursuant to, Section 5.1.
Certificate Owner: The Person who is the beneficial owner of a
Book-Entry Certificate.
Certificate Majority: means holders of Certificates representing more
than 50% of the interests of the Certificateholders as a whole.
Certificate of Trust: The Certificate of Trust substantially in the
form of Exhibit A hereto, filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 3.4.
Certificateholder or Holder: A Person in whose name a Certificate is
registered in the Certificate Register.
Class B-1 Certificates: The Class B-1 Loan-Backed Certificates
evidencing a beneficial interest in the Trust, substantially in the form
attached as Exhibit B-1.
Class B-2 Certificates: The Class B-2 Loan-Backed Certificates
evidencing a beneficial interest in the Trust, substantially in the form
attached as Exhibit B-2.
Class C Certificates: The Class C Loan-Backed Certificates evidencing a
beneficial interest in the Trust, substantially in the form attached as Exhibit
C.
Code: The meaning assigned to such term in Section 5.2(f).
Corporate Trust Office: The principal office of the Owner Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the Closing Date is located at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Administration; the telecopy number for the Corporate Trust Office on the date
of the execution of this Agreement is ▇▇▇-▇▇▇-▇▇▇▇.
Definitive Certificates: The meaning assigned in Section 3.4(i).
Depositor: The Seller in its capacity as depositor hereunder.
"Depository" means the initial Depository, The Depository Trust
Company, the nominee of which is CEDE & CO., as the registered Holder of:
1-2
(i) one Certificate evidencing $14,437,000 in initial aggregate
principal balance of the Class B-1 Certificates, and
(ii) one Certificate evidencing $19,938,000 in initial aggregate
principal balance of the Class B-2 Certificates,
and any permitted successor depository. The Depository shall at all times be a
"clearing corporation" as defined in the Uniform Commercial Code of the State of
New York.
"Depository Participant" means a broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
ERISA: The meaning assigned to such term in Section 3.4(e).
Expenses: The meaning assigned to such term in Section 8.2.
GTFC-2: Green Tree Finance Corp.-Two, a Minnesota corporation.
Indemnified Parties: The meaning assigned to such term in Section 8.2.
Note Depository Agreement: The agreement among the Trust, the Indenture
Trustee, the Administrator and The Depository Trust Company, dated as of the
Closing Date, relating to the Notes, substantially in the form attached as
Exhibit B to the Indenture.
Original Class B-1 Certificate Principal Balance: $14,437,000.
Original Class B-2 Certificate Principal Balance: $19,938,000.
Owner Trustee: Wilmington Trust Company, or its successor in interest,
acting not individually but solely as trustee hereunder, and any successor
trustee appointed as provided in this Agreement.
Paying Agent: Any paying agent or co-paying agent appointed pursuant to
Section 3.9, which initially shall be U.S. Bank Trust National Association.
Record Date: With respect to any Payment Date, the close of business on
the last Business Day immediately preceding such Payment Date.
Related Documents: The Sale and Servicing Agreement, the Indenture, the
Certificates, the Notes, the Administration Agreement, the Note Depository
Agreement, the Certificate Depository Agreement and the Underwriting Agreement.
The Related Documents executed by any party are referred to herein as "such
party's Related Documents," "its Related Documents" or by a similar expression.
1-3
Sale and Servicing Agreement: The Sale and Servicing Agreement, dated
as of September 1, 1999 among the Trust, the Seller and Conseco Finance Corp.,
as Originator, Servicer and Limited Guarantor, as the same may be amended and
supplemented from time to time.
Secretary of State: The Secretary of State of the State of Delaware.
Seller: Conseco Finance Securitizations Corp., or its successor in
interest.
Servicer's Certificate: The Monthly Report delivered by the Servicer to
the Trust pursuant to Section 5.11 of the Sale and Servicing Agreement.
Trust: The trust created by this Agreement, the estate of which
consists of the Trust Property, which trust shall be known as "Conseco Finance
Home Loan Trust 1999-G."
Trust Accounts: The Collection Account, the Certificate Distribution
Account, the Note Distribution Account, and the Pre-Funding Account.
Trust Property: The property and proceeds of every description conveyed
pursuant to Section 2.5 hereof and Section 2.01 of the Sale and Servicing
Agreement, together with the Trust Accounts (including all Eligible Investments
therein and all proceeds therefrom) and the Limited Guaranty.
Underwriter: Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Underwriting Agreement: The Underwriting Agreement dated November 1,
1999 and related Terms Agreements, dated November 1, 1999 relating to the Class
A and Class M-1 Notes and November 4, 1999 relating to the Class B Certificates,
among Conseco Finance Securitizations Corp., Conseco Finance Corp., and the
Underwriter.
Wilmington Trust: Wilmington Trust Company, a Delaware banking
corporation.
SECTION 1.2. Usage of Terms.
With respect to all terms used in this Agreement, the singular includes
the plural and the plural the singular; words importing any gender include the
other genders; references to "writing" include printing, typing, lithography,
and other means of reproducing words in a visible form; references to agreements
and other contractual instruments include all subsequent amendments thereto or
changes therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; and the terms "include" or "including" mean "include
without limitation" or "including without limitation." To the extent that
definitions are contained in this Agreement, or in any such certificate or other
document, such definitions shall control.
1-4
SECTION 1.3. Calculations.
All calculations of the amount of interest accrued on the Certificates
shall be made on the basis of a 360-day year consisting of twelve 30-day months.
SECTION 1.4. Section References.
All references to Articles, Sections, paragraphs, subsections, clauses,
exhibits and schedules shall be to such portions of this Agreement unless
otherwise specified.
SECTION 1.5. Action by or Consent of Certificateholders.
(a) Except as expressly provided herein, any action that may be taken
by the Certificateholders under this Agreement may be taken by a Certificate
Majority. Except as expressly provided herein, any written notice or consent of
the Certificateholders delivered pursuant to this Agreement shall be effective
if signed by Holders of the Certificates evidencing not less than a Certificate
Majority at the time of the delivery of such notice.
(b) Whenever any provision of this Agreement refers to action to be
taken, or consented to, by Certificateholders, such provision shall be deemed to
refer to Certificateholders of record as of the Record Date immediately
preceding the date on which such action is to be taken, or consent given, by
Certificateholders. Solely for the purposes of any action to be taken, or
consented to, by Certificateholders, any Certificate owned by or registered in
the name of GTFC-2, the Seller or any Affiliate thereof shall be deemed not to
be outstanding and the Class B-1 or Class B-2 Principal Balance, as applicable,
represented thereby shall not be taken into account in determining whether the
requisite percentage of the Class B-1 or Class B-2 Principal Balance, as
applicable, necessary to effect any such action or consent has been obtained;
provided, however, that, solely for the purpose of determining whether the Owner
Trustee is entitled to rely upon any such action or consent, only Certificates
which the Owner Trustee knows to be so owned shall be so disregarded.
1-5
ARTICLE II
CREATION OF TRUST
SECTION 2.1. Creation of Trust.
There is hereby formed a trust to be known as "Conseco Finance Home
Loan Trust 1999-G," in which name the Trust may conduct business, make and
execute contracts and other instruments and ▇▇▇ and be sued.
SECTION 2.2. Office.
The office of the Trust shall be in care of the Owner Trustee at the
Corporate Trust Office or at such other address in Delaware as the Owner Trustee
may designate by written notice to the Certificateholders and the Depositor.
SECTION 2.3. Purposes and Powers.
The sole purpose of the Trust is to conserve the Trust Property and
collect and disburse the periodic income therefrom for the use and benefit of
the Certificateholders and the Noteholders, and in furtherance of such purpose
the Trust shall have the power and authority to engage in the following
activities:
(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement and to sell the Notes and the
Certificates;
(ii) with the proceeds of the sale of the Notes and the
Certificates, to pay the organizational, start-up and transactional
expenses of the Trust and to pay the balance (net of the Pre-Funded
Amount, if any) to the Seller pursuant to the Sale and Servicing
Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate to the Indenture Trustee pursuant to the Indenture for
the benefit of the Noteholders and to hold, manage and distribute to
the Certificateholders pursuant to the terms of the Sale and Servicing
Agreement any portion of the Trust Property released from the lien of,
and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the
Related Documents to which it is or is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
2-1
(vi) subject to compliance with the Related Documents, to
engage in such other activities as may be required in connection with
conservation of the Trust Property and the making of distributions to
the Certificateholders and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities and any
activities that are necessary or incidental thereto. The Trust shall not engage
in any activity other than in connection with the foregoing or other than as
required or expressly authorized by the terms of this Agreement or the Related
Documents. Similarly, the Owner Trustee shall have no discretionary duties other
than performing those ministerial acts set forth above necessary to accomplish
the purpose of this Trust as set forth in the introductory sentence of this
Section.
SECTION 2.4. Appointment of Owner Trustee.
The Depositor hereby appoints the Owner Trustee as trustee of the Trust
effective as of the date hereof, to have all the rights, powers and duties set
forth herein and in the Business Trust Statute, and the Owner Trustee hereby
accepts such appointment.
SECTION 2.5. Initial Capital Contribution of Trust Estate.
The Depositor hereby sells, assigns, transfers, conveys and sets over
to the Owner Trustee, as of the date hereof, the sum of $10.00. The Owner
Trustee hereby acknowledges receipt in trust from the Depositor, as of the date
hereof, of the foregoing contribution, which shall constitute the initial Trust
Property and shall be deposited in the Certificate Distribution Account. The
Depositor shall pay organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.6. Declaration of Trust.
The Owner Trustee hereby declares that it will hold the Trust Property
in trust upon and subject to the conditions set forth herein for the use and
benefit of the Certificateholders, subject to the interests and rights in the
Trust Property granted to other Persons by the Related Documents. It is the
intention and agreement of the parties hereto that the Trust constitute a
business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. It is the intention
and agreement of the parties hereto that, solely for income and franchise tax
purposes, the Trust shall be treated as a partnership, with the assets of the
partnership being the Loans and the other Trust Property, the partners of the
partnership being the Certificateholders, and the Notes being debt of the
Partnership. None of the parties hereto shall make the election provided in
Treasury Regulation ss. 301.7701-3(c) to have the Trust classified as an
association taxable as a corporation. The parties agree that, unless otherwise
required by appropriate tax authorities, the Trust will file or cause to be
filed annual or other necessary returns, reports and other forms consistent with
the characterization of the Trust as a partnership for such tax purposes. On or
before the date hereof, the Owner Trustee shall file in the Office of the
Secretary of State the Certificate of Trust required by Section 3810(a) of the
Business Trust Statute, to be effective on the Closing Date. Effective as of the
date hereof, the
2-2
Owner Trustee shall have all rights, powers and duties set forth herein and in
the Business Trust Statute with respect to accomplishing the purposes of the
Trust.
SECTION 2.7. Liability of the Certificateholders.
No Certificateholder shall have any personal liability for any
liability or obligation of the Trust or by reason of any action taken by the
parties to this Agreement pursuant to any provisions of this Agreement or any
Related Document.
SECTION 2.8. Title to Trust Property.
(a) Legal title to all the Trust Property shall be vested at all times
in the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Property to be vested in a
trustee or trustees, in which case title shall be deemed to be vested in the
Owner Trustee, a co-trustee and/or a separate trustee, as the case may be.
(b) The Certificateholders shall not have legal title to any part of
the Trust Property. The Certificateholders shall be entitled to receive
distributions with respect to their undivided beneficial ownership interest
therein only in accordance with Articles V and IX. No transfer, by operation of
law or otherwise, of any right, title or interest by any Certificateholder of
its ownership interest in the Trust Property shall operate to terminate this
Agreement or the trusts hereunder or entitle any transferee to an accounting or
to the transfer to it of legal title to any part of the Trust Property.
SECTION 2.9. Situs of Trust.
The Trust will be located and administered in the State of Delaware.
All bank accounts maintained by the Owner Trustee on behalf of the Trust shall
be located in the State of Delaware or the State of Minnesota. The Trust shall
not have any employees in any state other than Delaware; provided, however, that
nothing herein shall restrict or prohibit the Owner Trustee, the Servicer or any
agent of the Trust from having employees within or without the State of
Delaware. Payments will be received by the Trust only in Delaware or the State
of Minnesota, and payments will be made by the Trust only from Delaware or the
State of Minnesota. The only office of the Trust will be at the Corporate Trust
Office in Delaware.
SECTION 2.10. Representations and Warranties of the Depositor.
By execution of this Agreement, the Depositor makes the following
representations and warranties with respect to itself on which the Owner Trustee
relies in accepting the Trust Property in trust and issuing the Certificates.
(a) Organization and Good Standing. It has been duly organized
and is validly existing as a corporation in good standing under the
laws of the State of Minnesota, with power and authority to own its
properties and to conduct its business as such properties are currently
owned and as such business is currently conducted and is proposed to be
conducted pursuant to this Agreement and the Related Documents.
2-3
(b) Due Qualification. It is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property, the conduct of its business and the performance
of its obligations under this Agreement and the Related Documents
requires such qualification.
(c) Power and Authority; Binding Obligations. It has the power
and authority to execute and deliver this Agreement and its Related
Documents and to perform its obligations pursuant thereto; and the
execution, delivery and performance of this Agreement and its Related
Documents have been duly authorized by all necessary corporate action.
When executed and delivered, this Agreement and the Related Documents
will constitute the legal, valid and binding obligations of the
Depositor enforceable in accordance with their terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and by the availability of equitable remedies.
(d) No Consent Required. No consent, license, approval or
authorization or registration or declaration with any Person or with
any governmental authority, bureau or agency is required in connection
with the execution, delivery or performance of this Agreement and the
Related Documents, except for such as have been obtained, effected or
made.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the Depositor's Related Documents
and the fulfillment of its obligations under this Agreement and its
Related Documents shall not conflict with, result in any breach of any
of the terms and provisions of or constitute (with or without notice,
lapse of time or both) a default under, its articles of incorporation
or bylaws, or any indenture, agreement, mortgage, deed of trust or
other instrument to which it is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, or violate any law, order,
rule or regulation applicable to it of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over it or any of its properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to its knowledge, threatened against it before any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over it or its
properties (A) asserting the invalidity of this Agreement or any of the
Related Documents, (B) seeking to prevent the issuance of the
Certificates or the Notes or the consummation of any of the
transactions contemplated by this Agreement or any of the Related
Documents, (C) seeking any determination or ruling that might
materially and adversely affect its performance of its obligations
under, or the validity or enforceability of, this Agreement or any of
the Related Documents, or (D) seeking to adversely affect the federal
income tax or other federal, state or local tax attributes of the
Certificates or the Notes.
2-4
SECTION 2.11. Federal Income Tax Allocations.
Net income of the Trust for any month as determined for Federal income
tax purposes (and each item of income, gain, loss and deduction entering into
the computation thereof) shall be allocated:
(a) among the Class B-1 and Class B-2 Certificateholders as of
the first Record Date following the end of such month, in proportion to
their ownership of the sum of the Class B-1 Principal Balance plus the
Class B-2 Principal Balance on such date, an amount of net income up to
the sum of (i) the interest payable in respect of the Certificates of
the applicable class for such month pursuant to Section 5.2(a), and
(ii) the portion of the market discount on the Loans accrued during
such month that is allocable to the excess of the Original Class B-1
Certificate Principal Balance or the Original Class B-2 Certificate
Principal Balance, as applicable, over such class' initial aggregate
issue price; and
(b) next, to the Class C Certificateholder to the extent of
any remaining net income.
If the net income of the Trust for any month is insufficient for the allocations
described in clause (a) above, subsequent net income shall first be allocated to
make up such shortfall before being allocated as provided in clause (b). Net
losses of the Trust, if any, for any month as determined for Federal income tax
purposes (and each item of income, gain, loss and deduction entering into the
computation thereof) shall be allocated to the Class C Certificateholder to the
extent the Class C Certificateholder is reasonably expected to bear the economic
burden of such net losses, then net losses shall be allocated among the Class
B-1 and Class B-2 Certificateholders as of the first Record Date following the
end of such month in proportion to their ownership of principal amount of
Certificates on such Record Date until the total amount of losses allocated to
the Certificateholders pursuant to this Section 2.11 plus the total principal
amount distributed to the Certificateholders equals the sum of the Original
Class B-1 Principal Balance plus the Original Class B-2 Principal Balance, and
any remaining net losses shall be allocated to the Class C Certificateholder.
The Class C Certificateholder is authorized to modify the allocations in this
paragraph if necessary or appropriate, in its sole discretion, for the
allocations to fairly reflect the economic income, gain or loss to the
Certificateholders, or to comply with the provisions of the Code and the
accompanying Treasury Regulations.
SECTION 2.12. Covenants of the Certificateholders.
Each Certificateholder by becoming a Certificateholder agrees:
(a) to be bound by the terms and conditions of the
Certificates and of this Agreement, including any supplements or
amendments hereto and to perform the obligations of a Certificateholder
as set forth therein or herein, in all respects as if it were a
signatory hereto. This undertaking is made for the benefit of the
Trust, the Owner Trustee and all other Certificateholders present and
future.
2-5
(b) if requested by the Trust, it will sign a federal income
tax return in its capacity as holder of an interest in the Trust. Each
Certificateholder also hereby agrees that in its tax returns it will
not take any position inconsistent with those taken in any tax returns
filed by the Trust.
(c) until the completion of the events specified in Section
9.1(e), not, for any reason, to institute proceedings for the Trust or
the Seller to be adjudicated a bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Trust
or the Seller, or file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law
relating to bankruptcy, or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official)
of the Trust or the Seller or a substantial part of its property, or
cause or permit the Trust or the Seller to make any assignment for the
benefit of its creditors, or admit in writing its inability to pay its
debts generally as they become due, or declare or effect a moratorium
on its debt or take any action in furtherance of any such action.
2-6
ARTICLE III
THE CERTIFICATES
SECTION 3.1. Initial Ownership.
Upon the formation of the Trust by the contribution by the Depositor
pursuant to Section 2.5 and until the issuance of the Certificates, the
Depositor shall be the sole beneficiary of the Trust.
SECTION 3.2. The Certificates.
(a) The Class B-1, Class B-2 and Class C Certificates shall be
substantially in the forms set forth in Exhibits ▇-▇, ▇-▇ and C, respectively,
and shall, on original issue, be executed by the Owner Trustee on behalf of the
Trust upon the order of the Depositor. The Class B-1 and Class B-2 Certificates
shall be evidenced by (i) one or more Class B-1 Certificates representing
$14,437,000 initial aggregate principal balance, and (ii) one or more Class B-2
Certificates representing $19,938,000 initial aggregate principal balance,
beneficial ownership of such Classes of Certificates to be held through
Book-Entry Certificates in minimum dollar denominations of $1,000 and integral
dollar multiples of $1,000 in excess thereof. The Class C Certificate shall be
evidenced by a single certificate issued on the Closing Date to GTFC-2.
(b) The Certificates shall be executed on behalf of the Trust by manual
or facsimile signature of any authorized signatory of the Owner Trustee having
such authority under the Owner Trustee's seal imprinted or otherwise affixed
thereon and attested on behalf of the Owner Trustee by the manual or facsimile
signature of any authorized signatory of the Owner Trustee. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures were affixed, authorized to sign on behalf of the Owner Trustee
shall be validly issued and entitled to the benefits of this Agreement,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificates.
SECTION 3.3. Authentication of Certificates.
Simultaneously with the sale, assignment and transfer to the Trust of
the Loans and the delivery to the Trust of the Loan Files and the other Trust
Property pursuant to the Sale and Servicing Agreement, the Owner Trustee shall
cause the Certificates to be executed on behalf of the Trust, authenticated and
delivered to or upon the order of the Depositor. No Certificate shall entitle
its Holder to any benefit under this Agreement, or shall be valid for any
purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit B-1, Exhibit B-2
and Exhibit C, as applicable, executed by the Owner Trustee or the
Authentication Agent, by manual or facsimile signature; such authentication
shall constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. Wilmington Trust Company is hereby
initially appointed Authentication Agent. All Certificates shall be dated the
date of their authentication.
3-1
SECTION 3.4. Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall maintain, or cause to be
maintained, at the office or agency maintained pursuant to Section 3.8, a
register (the "Certificate Register") in which, subject to such reasonable
regulations as it may prescribe, the Owner Trustee shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
provided in this Agreement. The Owner Trustee is hereby initially appointed
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as provided in this Agreement.
(b) Upon surrender for registration of transfer of any Certificate at
the office or agency maintained pursuant to Section 3.8, the Owner Trustee shall
execute, authenticate and deliver (or shall cause the Authentication Agent to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates dated the date of authentication by
the Owner Trustee or any Authentication Agent. At the option of a Holder,
Certificates may be exchanged for other Certificates of the same class in
authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.8.
(c) (1) No transfer of a Class C Certificate shall be made by GTFC-2 or
any other Person unless such transfer is exempt from the registration
requirements of the Securities Act of 1933 (the "Act"), as amended, and any
applicable state securities laws or is made in accordance with the Act and laws.
In the event that any such transfer is to be made, (A) the Depositor may require
a written Opinion of Counsel acceptable to and in form and substance
satisfactory to the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from the
Act and laws or is being made pursuant to the Act and laws, which Opinion of
Counsel shall not be an expense of the Owner Trustee or the Depositor, and (B)
the Owner Trustee shall require the transferee to execute an investment letter
substantially in the form of Exhibit D attached hereto, which investment letter
shall not be an expense of the Owner Trustee or the Depositor. Any Class C
Certificateholder desiring to effect such transfer shall, and does hereby agree
to, indemnify the Owner Trustee, the Depositor and the Certificate Registrar
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws. In addition, no transfer of
a Class C Certificate shall be made by GTFC-2 or any other person to an
Affiliate of the Originator without (i) the written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Depositor that in
the event the Originator became a debtor under the United States Bankruptcy
Code, a court exercising reasonable judgment under then existing statutes and
precedents would not order that the assets of such Affiliate be consolidated
with those of the Originator, which opinion shall not be an expense of the Owner
Trustee or the Depositor, and (ii) written notification from each Rating Agency
to the effect that such transfer will not cause such Rating Agency to downgrade
its then-current ratings, if any, of any of the Securities below the lower of
the then-current rating or the rating assigned to such Securities as of the
Closing Date by such Rating Agency.
(2) Any transfer, sale or other disposition not in compliance
with the provisions of this Section 3.4(c) shall be deemed to be void and of no
legal force or effect
3-2
whatsoever and such transferee shall be deemed to not be the Certificateholder
for any purpose hereunder, including, but not limited to, the receipt of
distributions on such Certificate, and shall be deemed to have no interest
whatsoever in such Certificate.
(d) No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
(e) The Certificates may not be acquired by or for the account of (i) a
pension, profit sharing or other employee benefit plan, or an individual
retirement account or ▇▇▇▇▇ plan, subject to Title I of ERISA or Section 4975 of
the Internal Revenue Code of 1986, as amended (a "Benefit Plan"), or (ii) any
entity whose underlying assets include "plan assets" (within the meaning of
Department of Labor ("DOL") Regulation Section 2510.3-101, 29 C.F.R. ss.
2510.3-101 or otherwise under ERISA) by reason of a Benefit Plan's investment in
the entity, including, without limitation, an insurance company acting on behalf
of its general account.
(f) Notwithstanding anything contained herein to the contrary, the
Owner Trustee and the Certificate Registrar shall not be responsible for
ascertaining whether any transfer complies with the registration provisions or
exemptions from the Securities Act of 1933, as amended, the Securities and
Exchange Act of 1934, as amended, or applicable state securities law or the
Investment Company Act of 1940, as amended; provided, however, that if a
certificate is specifically required to be delivered to the Owner Trustee by a
purchaser or transferee of a Certificate, the Owner Trustee shall be under a
duty to examine the same to determine whether it conforms to the requirements of
this Agreement and shall promptly notify the party delivering the same if such
certificate does not so conform.
(g) Notwithstanding the preceding provisions of this Section, the Owner
Trustee shall not be required to make, and the Certificate Registrar shall not
be required to register, transfers or exchanges of Certificates for a period of
15 days preceding the due date for any payment with respect to the Certificate.
(h) Except as provided in paragraph (i) below, the Book-Entry
Certificates shall at all times remain registered in the name of the Depository
or its nominee and at all times:
(i) registration of the Class B-1 and Class B-2 Certificates may not be
transferred by the Owner Trustee except to another Depository;
(ii) the Depository shall maintain book-entry records with respect to
the Certificate Owners and with respect to ownership and transfers of
such Class B-1 and Class B-2 Certificates;
(iii) ownership and transfers of registration of the Class B-1 and
Class B-2 Certificates on the books of the Depository shall be governed
by applicable rules established by the Depository;
3-3
(iv) the Depository may collect its usual and customary fees, charges
and expenses from its Depository Participants;
(v) the Owner Trustee shall deal with the Depository, Depository
Participants and indirect participating firms as representatives of the
Certificate Owners of the Class B-1 and Class B-2 Certificates for
purposes of exercising the rights of Holders under this Agreement, and
requests and directions for and votes of such representatives shall not
be deemed to be inconsistent if they are made with respect to different
Certificate Owners; and
(vi) the Owner Trustee may rely and shall be fully protected in relying
upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants
with respect to indirect participating firms and persons shown on the
books of such indirect participating firms as direct or indirect
Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
(i) If (i) the Depositor or the Depository advises the Owner Trustee in
writing that the Depository is no longer willing or able properly to discharge
its responsibilities as Depository and (ii) the Owner Trustee or the Depositor
is unable to locate a qualified successor or (iii) the Depositor at its sole
option advises the Owner Trustee in writing that it elects to terminate the
book-entry system through the Depository, the Owner Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully registered Class B-1 and Class B-2
Certificates (the "Definitive Certificates") to Certificate Owners requesting
the same. Upon surrender to the Owner Trustee of the Class B-1 and Class B-2
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration, the Owner Trustee shall issue the Definitive
Certificates. Neither the Depositor nor the Owner Trustee shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates all references herein to obligations imposed upon or to
be performed by the Depository shall be deemed to be imposed upon and performed
by the Owner Trustee, to the extent applicable with respect to such Definitive
Certificates and the Owner Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(j) On or prior to the Closing Date, there shall be delivered to the
Depository one Class B-1 Certificate and one Class B-2 Certificate, each in
registered form registered in the name of the Depository's nominee, Cede & Co.,
the total face amount of which represents 100% of the related Original Class B-1
Certificate Principal Balance or the Original Class B-2 Certificate Principal
Balance, as applicable. Each such Class B Certificate registered in the name of
the Depository's nominee shall bear the following legend:
3-4
"Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC") to the Trust or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede
& Co., has an interest herein."
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Certificate Registrar or the Owner Trustee that such Certificate
has been acquired by a bona fide purchaser, the Owner Trustee on behalf of the
Trust shall execute, authenticate and deliver (or the Authentication Agent shall
authenticate and deliver), in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor. In
connection with the issuance of any new Certificate under this Section 3.5, the
Owner Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Owner Trustee and the
Certificate Registrar) connected therewith. Any duplicate Certificate issued
pursuant to this Section 3.5 shall constitute conclusive evidence of ownership
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 3.6. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the person in whose name
any Certificate is registered as the owner of such Certificate for the purpose
of receiving distributions pursuant to Section 5.2 and for all other purposes
whatsoever, and neither the Owner Trustee, the Certificate Registrar nor any
agent of the Owner Trustee or the Certificate Registrar shall be affected by any
notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to the
Servicer, within 15 days after receipt by the Owner Trustee of a written request
therefor, a list, in such form as the Servicer may reasonably require, of the
names and addresses of the Certificateholders as of the most recent Record Date
for payment of distributions to Certificateholders. If three or more
Certificateholders of a Class, or one or more Certificateholders holding not
less than 25% of the interests of the Certificateholders as a whole (hereinafter
referred to as "Applicants"), apply in writing to the Owner Trustee, and such
application states that the Applicants desire to
3-5
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication that such Applicants propose to transmit, then the Owner Trustee
shall, within five Business Days after the receipt of such application, afford
such Applicants access, during normal business hours, to the current list of
Certificateholders. Every Certificateholder, by receiving and holding a
Certificate, agrees that none of the Servicer or the Owner Trustee, nor any
agent thereof, shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Certificateholders under this
Agreement, regardless of the source from which such information was derived.
SECTION 3.8. Maintenance of Office or Agency.
The Owner Trustee shall maintain in Wilmington, Delaware, an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Certificates and the Related Documents may
be served. The Owner Trustee initially designates its Corporate Trust Office for
such purposes. The Owner Trustee shall give prompt written notice to the
Depositor and to the Certificateholders of any change in the location of the
Certificate Register or any such office of agency.
SECTION 3.9. Appointment of Paying Agent.
The Paying Agent shall make distributions to Certificateholders from
the Certificate Distribution Account pursuant to Section 5.2 and shall report
the amounts of such distributions to the Owner Trustee. Any Paying Agent shall
have the revocable power to withdraw funds from the Certificate Distribution
Account for the purpose of making the distributions referred to above. The Owner
Trustee may revoke such power and remove the Paying Agent if the Owner Trustee
determines in its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. The Trust
hereby appoints U.S. Bank Trust National Association as Paying Agent. U.S. Bank
Trust National Association shall be permitted to resign as Paying Agent upon 30
days' written notice to the Owner Trustee. In the event that U.S. Bank Trust
National Association shall no longer be the Paying Agent, the Owner Trustee
shall appoint a successor to act as Paying Agent (which shall be a bank or trust
company). The Owner Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Owner Trustee to execute and deliver to
the Owner Trustee an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Owner Trustee that as Paying Agent,
such successor Paying Agent or additional Paying Agent will hold all sums, if
any, held by it for payment to the Certificateholders in trust for the benefit
of the Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Owner Trustee, and upon removal of a Paying Agent, such Paying Agent shall also
return all funds in its possession to the Owner Trustee. The provisions of
Sections 7.1, 7.3, 7.4 and 8.1 shall apply to the Owner Trustee also in its role
as Paying Agent for so long as the Owner Trustee shall act as Paying Agent and,
to the extent applicable, to any other Paying Agent appointed hereunder. Any
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
3-6
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Restriction on Power of Certificateholders.
No Certificateholder shall have any right to vote or in any manner
otherwise control the operation and management of the Trust except as expressly
provided in this Agreement.
SECTION 4.2. Prior Notice to Certificateholders with Respect to Certain
Matters.
The Owner Trustee shall not take any of the following actions, unless
at least 30 days (or such shorter period as shall be required under the
circumstances) before the taking of such action, the Owner Trustee shall have
notified the Certificateholders in writing of the proposed action and the
Certificateholders shall not have notified the Owner Trustee in writing prior to
the 30th day (or such shorter time period, if applicable) after such notice is
given that such Certificateholders have withheld consent or provided alternative
direction:
(a) the election by the Trust to file an amendment to the
Certificate of Trust unless such amendment is required to be filed
under the Business Trust Statute or unless such amendment would not
materially and adversely affect the interests of the
Certificateholders;
(b) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required unless
such amendment would not materially and adversely affect the interests
of the Certificateholders; or
(c) the amendment, change or modification of the
Administration Agreement, unless such amendment would not materially
and adversely affect the interests of the Certificateholders.
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Trust without the unanimous prior
approval of all Certificateholders and the delivery to the Owner Trustee by each
such Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action, or
proceeding in equity or at law upon or under or with respect to this Agreement
or any Related Document, unless the Certificateholders are the instructing party
pursuant to Section 6.3 and unless a Certificateholder previously shall have
given to the Owner Trustee a written notice of default and of the continuance
thereof, as provided in this Agreement and unless Holders of Certificates
evidencing in the aggregate not less than a
4-1
25% interest of the Certificates as a whole shall have made written request upon
the Owner Trustee to institute such action, suit or proceeding in its own name
as Owner Trustee under this Agreement and shall have offered to the Owner
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Owner Trustee, for 30
days after its receipt of such notice, request, and offer of indemnity, shall
have neglected or refused to institute any such action, suit, or proceeding, and
during such 30-day period no request or waiver inconsistent with such written
request has been given to the Owner Trustee pursuant to and in compliance with
this Section or Section 6.3; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Owner Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb, or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner provided in this Agreement and for the equal, ratable, and common benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section 4.4, each and every Certificateholder and the Owner Trustee
shall be entitled to such relief as can be given either at law or in equity.
4-2
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Trust Accounts.
(a) On or prior to the Closing Date, the Depositor shall cause the
Servicer to establish the Certificate Distribution Account in the name of the
Owner Trustee for the benefit of the Certificateholders as provided in Section
6.01(c) of the Sale and Servicing Agreement. The Certificate Distribution
Account shall be an Eligible Account and initially shall be a segregated trust
account established with the Indenture Trustee and maintained with the Indenture
Trustee, so long as the Indenture Trustee is acting as Paying Agent under
Section 3.9.
(b) The Owner Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Certificate Distribution Account
and in all proceeds thereof. If, at any time, the Certificate Distribution
Account ceases to be an Eligible Account, the Owner Trustee shall within 5
Business Days (or such longer period, not to exceed 30 calendar days, as to
which each Rating Agency may consent) establish or cause the Servicer to
establish a new Certificate Distribution Account as an Eligible Account and
shall transfer any cash and/or any investments to such new Certificate
Distribution Account.
(c) All amounts held in the Certificate Distribution Account shall, to
the extent permitted by applicable laws, rules and regulations, be invested by
the Paying Agent in Eligible Investments as provided in Section 6.01 of the Sale
and Servicing Agreement and pursuant to the written instructions of the
Administrator that mature not later than one Business Day prior to the Payment
Date for the Due Period to which such amounts relate. Investments in Eligible
Investments shall be made in the name of the Trust, and such investments shall
not be sold or disposed of prior to their maturity. Any investment of funds in
the Certificate Distribution Account shall be made in Eligible Investments held
by a financial institution with respect to which (a) such institution has noted
the Owner Trustee's interest therein by book entry or otherwise and (b) a
confirmation of the Owner Trustee's interest has been sent to the Owner Trustee
by such institution, provided that such Eligible Investments are (i) specific
certificated securities, and (ii) either (A) in the possession of such
institution or (B) in the possession of a clearing corporation in New York or
Delaware, registered in the name of such clearing corporation, not endorsed for
collection or surrender or any other purpose not involving transfer, not
containing any evidence of a right or interest inconsistent with the Owner
Trustee's security interest therein, and held by such clearing corporation in an
account of such institution. Subject to the other provisions hereof, the Paying
Agent on behalf of the Owner Trustee shall have sole control over each such
investment and the income thereon, and any certificate or other instrument
evidencing any such investment, if any, shall be delivered directly to the Owner
Trustee or its agent, together with each document of transfer, if any, necessary
to transfer title to such investment to the Owner Trustee in a manner which
complies with this Section 5.1. All interest, dividends, gains upon sale and
other income from, or earnings on investment of funds in the Certificate
Distribution Account shall be distributed on the next Payment Date pursuant to
Section 5.2(a). The Depositor shall cause the Seller to deposit in the
Certificate Distribution Account an amount equal to any net loss on such
investments immediately as realized.
5-1
SECTION 5.2. Application of Funds in Certificate Distribution Account.
(a) On each Payment Date the Paying Agent will, based on the
information contained in the Monthly Report delivered on the related
Determination Date pursuant to Section 5.11 of the Sale and Servicing Agreement,
distribute to each Class of Certificateholders, on a pro rata basis among such
Class to the extent of the funds available, amounts distributable to such Class
and deposited in the Certificate Distribution Account pursuant to Section 6(a)
of the Sale and Servicing Agreement.
(b) On the Payment Date following the date on which amounts received in
respect of the Class C Certificateholder's exercise of its option to purchase
the corpus of the Trust pursuant to Section 8.01 of the Sale and Servicing
Agreement, or pursuant to the auction of the Loans as described in Section 8.01
of the Sale and Servicing Agreement, are deposited in the Certificate
Distribution Account, the Paying Agent will distribute such amounts to
Certificateholders in the manner described in Section 5.2(a).
(c) On the Payment Date on which proceeds are deposited in the
Certificate Distribution Account pursuant to Section 8.02 of the Sale and
Servicing Agreement (or on the Payment Date immediately following such deposit
if such proceeds are not deposited in the Certificate Distribution Account on a
Payment Date), the Paying Agent will distribute the proceeds so deposited in the
Certificate Distribution Account to Certificateholders in the manner described
in Section 5.2(a).
(d) On the Payment Date following the date on which the Indenture
Trustee makes payments of money or property in respect of liquidation of the
Trust Property pursuant to Section 5.06 of the Indenture and deposits funds
received in connection with such liquidation in the Certificate Distribution
Account, the Paying Agent will distribute such funds to Certificateholders in
the manner described in Section 5.2(a).
(e) On each Payment Date, the Owner Trustee shall send or cause to be
sent to each Certificateholder the statement required pursuant to Section 6.07
of the Sale and Servicing Agreement.
(f) To the extent required by the Internal Revenue Code, and applicable
federal regulations promulgated thereunder, as the same may be amended from time
to time (collectively, the "Code"), the Paying Agent shall withhold from each
payment due hereunder or under any Certificate, United States withholding taxes
at the appropriate rate, and, on a timely basis, to deposit such amounts with an
authorized depository and make such returns, filings and other reports in
connection therewith as are required of it under the Code. Any Certificateholder
which is eligible for an exemption from or reduction of withholding of United
States federal income taxes shall, from time to time, provide to the Owner
Trustee and the Paying Agent in a timely manner all appropriate and properly
completed forms indicating such eligibility, as may be necessary to permit the
Paying Agent not to withhold taxes from payments due to such Certificateholder.
In connection with the foregoing, the Owner Trustee shall promptly furnish or
cause to be furnished to each Certificateholder in a timely fashion such U.S.
Treasury forms as are required by the Code to be furnished to such
Certificateholder indicating payment of any
5-2
taxes withheld from any payments by the Paying Agent to such Certificateholder.
The Owner Trustee and the Paying Agent shall be fully protected in relying upon,
and each Certificateholder by its acceptance of a Certificate hereunder agrees
to indemnify and hold the Owner Trustee and the Paying Agent harmless against
all claims or liability of any kind arising in connection with or related to the
Owner Trustee's or the Paying Agent's reliance upon any documents, forms or
information provided by any Certificateholder to the Owner Trustee. In addition,
if the Paying Agent has not withheld taxes on any payment made to any
Certificateholder, and the Paying Agent is subsequently required to remit to any
taxing authority any such amount not withheld, such Certificateholder shall
return such amount to the Paying Agent upon written demand by the Paying Agent.
In no event shall the Owner Trustee or the Paying Agent be liable for
consequential damages to any Certificateholder.
(g) Any funds remaining in the Certificate Distribution Account after
distribution of all amounts specified in this Section 5.2 shall be distributed
to the Class C Certificateholder in the manner described in Section 5.2(a).
SECTION 5.3. Method of Payment.
Subject to Section 9.1(c), distributions required to be made to
Certificateholders on any Payment Date shall be made to each Certificateholder
of record on the preceding Record Date either by wire transfer, in immediately
available funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
to the Certificate Registrar appropriate written instructions at least five
Business Days prior to such Payment Date and such Holder's Certificates in the
aggregate evidence a denomination of not less than $1,000,000, or, if not, by
check mailed to such Certificateholder at the address of such Holder appearing
in the Certificate Register.
SECTION 5.4. No Segregation of Monies; No Interest.
Subject to Sections 5.1 and 5.2, monies received by or on behalf of the
Owner Trustee hereunder need not be segregated in any manner except to the
extent required by law or by the Sale and Servicing Agreement and may be
deposited under such general conditions as may be prescribed by law, and neither
the Owner Trustee or the Paying Agent shall be liable for any interest thereon.
SECTION 5.5. Accounting; Reports; Tax Returns.
(a) It is the intention of the parties that the Trust will be treated
as a partnership for tax purposes. Accordingly, the Administrator has agreed
pursuant to the Administration Agreement that the Administrator shall, as
appropriate: (i) maintain (or cause to be maintained) the books of the Trust on
a calendar year basis on the accrual method of accounting, (ii) deliver to each
Certificateholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required to enable each
Certificateholder to prepare its federal and state income tax returns, (iii)
obtain a federal tax identification number for the Trust, and file or cause to
be filed such tax returns relating to the Trust and direct the Owner Trustee to
make such elections as may from time to time be required or appropriate under
any applicable state or
5-3
federal statute or rule or regulation thereunder so as to maintain the Trust's
characterization as a partnership for federal income tax purposes, (iv) collect
or cause to be collected any withholding tax as described in and in accordance
with Section 5.2(f) with respect to income or distributions to
Certificateholders and (v) file or cause to be filed all documents required to
be filed by the Trust with the Commission and otherwise take or cause to be
taken all such actions as are notified by the Servicer to the Administrator as
being required for the Trust's compliance with all applicable provisions of
state and federal securities laws.
(b) The Owner Trustee shall sign on behalf of the Trust the tax returns
of the Trust, unless applicable law requires the Class C Certificateholder to
sign such documents, in which case such documents shall be signed by the Class C
Certificateholder.
(c) None of the parties hereto shall make the election provided in
Treasury Regulation ss. 301.7701-3(c) to have the Trust classified as an
association taxable as a corporation.
5-4
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority.
The Owner Trustee is authorized and directed to execute and deliver the
Related Documents to which the Trust is to be a party and each certificate or
other document attached as an exhibit to or contemplated by the Related
Documents to which the Trust is to be a party and any amendment thereto, and on
behalf of the Trust, to direct the Indenture Trustee to authenticate and deliver
the Class A-1 Notes in the aggregate principal amount of $45,100,000, the Class
A-2 Notes in the aggregate principal amount of $48,400,000, the Class A-3 Notes
in the aggregate principal amount of $24,900,000, the Class A-4 Notes in the
aggregate principal amount of $30,200,000, the Class A-5 Notes in the aggregate
principal amount of $35,000,000, the Class A-6 Notes in the aggregate principal
amount of $13,025,000, the Class M-1 Notes in the aggregate principal amount of
$22,000,000, and the Class M-2 Notes in the aggregate principal amount of
$17,875,000. In addition to the foregoing, the Owner Trustee is authorized, but
shall not be obligated, to take all actions required of the Trust pursuant to
the Related Documents. The Owner Trustee is further authorized, on behalf of the
Trust, to enter into the Administration Agreement and to appoint a successor
Administrator.
SECTION 6.2. General Duties.
It shall be the duty of the Owner Trustee to discharge (or cause to be
discharged through the Administrator or such agents as shall be appointed) all
of its responsibilities pursuant to the terms of this Agreement and the Related
Documents and to administer the Trust in the interest of the Certificateholders,
subject to the Related Documents and in accordance with the provisions of this
Agreement. The Owner Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Agreement or as it shall be
directed in writing by the instructing party. No implied covenants or agreements
shall be read into this Agreement. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Related Documents to the extent the Administrator has
agreed in the Administration Agreement to perform any act or to discharge any
duty of the Trust or the Owner Trustee hereunder or under any Related Document,
and the Owner Trustee shall not be liable for the default or failure of the
Administrator to carry out its obligations under the Administration Agreement.
SECTION 6.3. Action upon Instruction.
(a) Subject to Article IV, the Certificateholders shall have the
exclusive right to direct the actions of the Owner Trustee in the management of
the Trust, so long as such instructions are not inconsistent with the express
terms set forth herein or in any Related Document. The Certificateholders shall
not instruct the Owner Trustee in a manner inconsistent with this Agreement or
the Related Documents.
6-1
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Related Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is contrary to the terms hereof or of any Related Document or is otherwise
contrary to law.
(c) No provision of this Agreement shall require the Owner Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of its duties hereunder or in the exercise of any of its rights or
powers if it shall have reasonable grounds to believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) In accepting the trusts hereby created, the Owner Trustee acts
solely as trustee hereunder and not in its individual capacity. The Owner
Trustee agrees to disburse all moneys actually received by it constituting part
of the Trust Property upon the terms of this Agreement. Notwithstanding anything
in this Agreement to the contrary, the Owner Trustee, when acting in such
capacity, shall not be personally liable or accountable to any Person, under any
circumstances, except by reason of its gross negligence, willful misconduct or
breach of its representations, warranties or covenants.
(e) The Owner Trustee shall be under no liability (except as provided
in (d) above) for any action taken by the Owner Trustee in good faith in
reliance upon any paper, order, list, demand, request, consent, affidavit,
notice, opinion, direction, endorsement, assignment, resolution, draft or other
document, believed by it to be genuine and to have been signed by the proper
party or parties or for the disposition of moneys or Trust Property pursuant to
this Agreement. As to any fact or matter, the manner of ascertainment of which
is not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer or other authorized officer of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(f) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Related Document, the Owner Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction received from the Certificateholders, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall not
have received appropriate instruction within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this Agreement or
the Related Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
(g) In the event that the Owner Trustee is unsure as to the application
of any provision of this Agreement or any Related Document or any such provision
is ambiguous as to its application, or is, or appears to be, in conflict with
any other applicable provision, or in the event
6-2
that this Agreement permits any determination by the Owner Trustee or is silent
or is incomplete as to the course of action that the Owner Trustee is required
to take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, the Owner Trustee shall not be liable, on account of such
action or inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the Related
Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions.
The Owner Trustee shall not have any duty or obligation to manage, make
any payment with respect to, register, record, sell, dispose of, or otherwise
deal with the Trust Property, or to otherwise take or refrain from taking any
action under, or in connection with, any document contemplated hereby to which
the Trust is a party, except as expressly provided by the terms of this
Agreement (including as provided in Section 6.2) or in any written instruction
received by the Owner Trustee pursuant to Section 6.3; and no implied duties or
obligations shall be read into this Agreement or any Related Document against
the Owner Trustee. The Owner Trustee shall have no responsibility for preparing,
monitoring or filing any financing or continuation statements in any public
office at any time or otherwise to perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to record this Agreement or
any Related Document; however, the Owner Trustee will from time to time execute
and deliver such financing or continuation statements as are prepared by the
Servicer and delivered to the Owner Trustee in final execution form for its
execution on behalf of the Trust for the purpose of perfecting or maintaining
the perfection of such a security interest or lien or effecting such a
recording. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense (and not at the expense of the Trust), promptly take all action as
may be necessary to discharge any liens on any part of the Trust Property that
are attributable to claims against the Owner Trustee in its individual capacity
that are not related to the ownership or the administration of the Trust
Property.
SECTION 6.5. No Action Except under Specified Documents or
Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of, the Trust Property except (i) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Related Documents and
(iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 6.3.
6-3
SECTION 6.6. Restrictions.
The Owner Trustee shall not take any action (a) that is inconsistent
with the purposes of the Trust set forth in Section 2.3 or (b) that, to the
actual knowledge of the Owner Trustee, would result in the Trust's becoming
taxable as a corporation for federal income tax purposes. The Certificateholders
shall not direct the Owner Trustee to take any action that would violate the
provisions of this Section.
SECTION 6.7. Administration Agreement.
(a) The Administrator is authorized to execute on behalf of the Trust
all documents, reports, filings, instruments, certificates and opinions as it
shall be the duty of the Trust to prepare, file or deliver pursuant to the
Related Documents. Upon written request, the Owner Trustee shall execute and
deliver to the Administrator a power of attorney appointing the Administrator
its agent and attorney-in-fact to execute all such documents, reports, filings,
instruments, certificates and opinions.
(b) If the Administrator shall resign or be removed pursuant to the
terms of the Administration Agreement, the Owner Trustee may, and is hereby
authorized and empowered to, appoint or consent to the appointment of a
successor Administrator pursuant to the Administration Agreement.
(c) If the Administration Agreement is terminated, the Owner Trustee
may, and is hereby authorized and empowered to, appoint or consent to the
appointment of a Person to perform substantially the same duties as are assigned
to the Administrator in the Administration Agreement pursuant to an agreement
containing substantially the same provisions as are contained in the
Administration Agreement.
(d) The Owner Trustee shall promptly notify each Certificateholder of
any default by or misconduct of the Administrator under the Administration
Agreement of which the Owner Trustee has received written notice or of which a
Responsible Officer of the Owner Trustee has actual knowledge.
6-4
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.1. Acceptance of Trust and Duties.
The Owner Trustee accepts the trusts hereby created and agrees to
perform its duties hereunder with respect to such trusts but only upon the terms
of this Agreement. The Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the Trust Property upon the terms of the
Related Documents and this Agreement. The Owner Trustee shall not be answerable
or accountable hereunder or under any Related Document under any circumstances,
except (i) for its own willful misconduct or gross negligence, (ii) in the case
of the inaccuracy of any representation or warranty contained in Section 7.3,
(iii) for liabilities arising from the failure of the Owner Trustee to perform
obligations expressly undertaken by it in the last sentence of Section 6.4
hereof, (iv) for any investments issued by the Owner Trustee or any branch or
affiliate thereof in its commercial capacity or (v) for taxes, fees or other
charges on, based on or measured by, any fees, commissions or compensation
received by the Owner Trustee in connection with any of the transactions
contemplated by this Agreement or any Related Document. In particular, but not
by way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Owner
Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the instructions of the Certificateholders;
(c) no provision of this Agreement or any Related Document
shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in the performance of any of its rights
or powers hereunder or under any Related Document if the Owner Trustee
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under this Agreement or any of
the Related Documents, including the principal of and interest on the
Certificates or the Notes;
(e) the Owner Trustee shall not be responsible for or in
respect of the recitals herein, the validity or sufficiency of this
Agreement or for the due execution hereof by the Depositor or for the
form, character, genuineness, sufficiency, value or validity of any of
the Trust Property or for or in respect of the validity or sufficiency
of the Related Documents, other than the certificate of authentication
on the Certificates, and the Owner Trustee shall in no event assume or
incur any liability, duty, or obligation to the Indenture
7-1
Trustee, any Noteholder or to any Certificateholder, other than as
expressly provided for herein and in the Related Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Paying Agent, the Indenture
Trustee or the Servicer under any of the Related Documents or otherwise
and the Owner Trustee shall have no obligation or liability to monitor
the performance of or to perform the obligations of the Trust under
this Agreement or the Related Documents that are required to be
performed by the Administrator under the Administration Agreement, the
Indenture Trustee under the Indenture, the Paying Agent under this
Agreement or the Servicer under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any Related Document, at
the request, order or direction of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee security or
indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any Related Document shall not
be construed as a duty, and the Owner Trustee shall not be answerable
for other than its gross negligence or willful misconduct in the
performance of any such act;
(h) the Owner Trustee shall not be under any obligation to
appear in, prosecute or defend any action, which in its opinion may
require it to incur any out-of-pocket expense or any liability unless
it shall be furnished with such reasonable security and indemnity
against such expense or liability as it may require in accordance with
the terms hereof. The Owner Trustee may, but shall be under no duty to,
undertake such action as it may deem necessary at any and all times to
protect the Trust Property and the respective rights and interests of
the Noteholders and the Certificateholders pursuant to the terms of the
Indenture and this Agreement;
(i) the Owner Trustee may (at the expense of the Seller)
consult with counsel, and the written advice of counsel or any opinion
of counsel shall be full and complete authorization and protection in
respect of any action taken or omitted by the Owner Trustee in good
faith reliance thereon; and
(j) notwithstanding anything contained herein to the contrary,
neither Wilmington Trust nor the Owner Trustee shall be required to
take any action in any jurisdiction other than in the State of Delaware
if the taking of such action will (i) require the consent or approval
or authorization or order of or giving of notice to, or the
registration with or the taking of any other action in respect of, any
state or other governmental authority or agency of any jurisdiction
other than the State of Delaware; (ii) result in any fee, tax or other
governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the
State of Delaware becoming payable by Wilmington Trust; or (iii)
subject Wilmington Trust to
7-2
personal jurisdiction in any jurisdiction other than the State of
Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by Wilmington Trust or the Owner
Trustee as the case may be, contemplated hereby. The Owner Trustee
shall be entitled to obtain (at the expense of the Seller) an opinion
of counsel to determine whether any action required to be taken
pursuant to this Agreement results in the consequences described in
clauses (i), (ii) and (iii) of the preceding sentence. In the event
that said counsel advises the Owner Trustee that such action will
result in such consequences, the Owner Trustee will appoint an
additional or separate trustee to proceed with such action.
SECTION 7.2. Furnishing of Documents.
The Owner Trustee shall furnish to the Certificateholders, promptly
upon receipt of a written request therefor, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Owner Trustee under the Related Documents unless
the Certificateholders have previously received such items.
SECTION 7.3. Representations and Warranties.
The Owner Trustee hereby represents and warrants to the Depositor and
the Certificateholders that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It
has all requisite corporate power and authority and all franchises,
grants, authorizations, consents, orders and approvals from all
governmental authorities of the State of Delaware and the United States
governing its banking and trust powers necessary to execute, deliver
and perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement and each Related
Document to which the Trust is a party, and this Agreement and each
Related Document will be executed and delivered by one of its officers
who is duly authorized to execute and deliver this Agreement on its
behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any Federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee
or any judgment or order binding on it, or constitute any default under
its charter documents or bylaws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound or result in the creation or imposition of any
lien, charge or encumbrance on the Trust Property resulting from
actions by or claims against the Owner Trustee individually which are
unrelated to this Agreement or the Related Documents.
7-3
SECTION 7.4. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Related Documents, the Owner Trustee (i) may act directly or through its agents
or attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and not contrary to this Agreement or
any Related Document.
SECTION 7.5. Not Acting in Individual Capacity.
Except as provided in this Article VII, in accepting the trusts hereby
created Wilmington Trust Company acts solely as Owner Trustee hereunder and not
in its individual capacity and all Persons having any claim against the Owner
Trustee by reason of the transactions contemplated by this Agreement or any
Related Document shall look only to the Trust Property for payment or
satisfaction thereof.
SECTION 7.6. Owner Trustee Not Liable for Certificates, Notes or Loans.
The recitals contained herein and in the Certificates and the Notes
(other than the signature and counter-signature of the Owner Trustee on the
Certificates and the Notes) shall be taken as the statements of the Depositor,
and the Owner Trustee assumes no responsibility for the correctness thereof. The
Owner Trustee makes no representations as to the validity or sufficiency of this
Agreement, of any Related Document or of the Certificates (other than the
signature and counter-signature of the Owner Trustee on the Certificates) or the
Notes (other than the signature and counter-signature of the Owner Trustee on
the Notes), or of any Loan or related documents. The Owner Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Loan, or the perfection and priority of any
security interest created by any Loan in any real property or the maintenance of
any such perfection and priority of any security interest created by any Loan in
any real property or for or with respect to
7-4
the sufficiency of the Trust Property or its ability to generate the payments to
be distributed to Certificateholders under this Agreement or the Noteholders
under the Indenture, including, without limitation: the existence, condition and
ownership of any real property; the existence and enforceability of any
insurance thereon; the existence and contents of any Loan or any computer or
other record thereof; the validity of the assignment of any Loan to the Trust or
of any intervening assignment; the completeness of any Loan; the performance or
enforcement of any Loan; the compliance by the Seller or the Servicer with any
warranty or representation made under any Related Document or in any related
document or the accuracy of any such warranty or representation or any action of
the Indenture Trustee or the Servicer taken in the name of the Owner Trustee.
SECTION 7.7. Owner Trustee May Own Certificates and Notes.
The Owner Trustee in its individual or any other capacity may become
the owner or pledgee of Certificates or Notes and may deal with the Depositor,
the Seller, the Indenture Trustee and the Servicer in banking or other
transactions with the same rights as it would have if it were not Owner Trustee.
7-5
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1. Owner Trustee's Fees and Expenses.
The Owner Trustee shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before the date hereof
between Conseco Finance Corp. and the Owner Trustee (or, with respect to any
successor Owner Trustee, reasonable compensation for all services rendered by it
hereunder), and the Owner Trustee shall be entitled to be reimbursed by Conseco
Finance Corp. for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder; provided, however, that the Owner Trustee shall only be entitled to
reimbursement for such expenses hereunder to the extent such expenses (i) are
fees of outside counsel engaged by the Owner Trustee in respect of the
performance of its obligations hereunder or (ii) relate to the performance of
its obligations pursuant to Section 5.5 hereof.
SECTION 8.2. Indemnification.
The Originator shall be liable as primary obligor for, and shall
indemnify the Owner Trustee in its individual capacity and its successors,
assigns, agents and servants, and any co-trustee (collectively, the "Indemnified
Parties") from and against, any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees and expenses) of any
kind and nature whatsoever (collectively, "Expenses") which may at any time be
imposed on, incurred by, or asserted against the Owner Trustee or any
Indemnified Party in any way relating to or arising out of this Agreement, the
Related Documents, the Trust Property, the administration of the Trust Property
or the action or inaction of the Owner Trustee hereunder, except only that the
Originator shall not be liable for or required to indemnify the Owner Trustee
from and against Expenses arising or resulting from any of the matters described
in the third sentence of Section 7.1. The indemnities contained in this Section
shall survive the resignation or termination of the Owner Trustee or the
termination of this Agreement.
SECTION 8.3. Nonrecourse Obligations.
Notwithstanding anything in this Agreement or any Related Document, the
Owner Trustee agrees in its individual capacity and in its capacity as Owner
Trustee for the Trust that all obligations of the Trust to the Owner Trustee
individually or as Owner Trustee for the Trust shall be recourse to the Trust
Property only and specifically shall not be recourse to the assets of any
Certificateholder.
8-1
ARTICLE IX
TERMINATION
SECTION 9.1. Termination of the Trust.
(a) The respective obligations and responsibilities of the Depositor
and the Owner Trustee created by this Agreement and the Trust created by this
Agreement shall terminate upon the later of (i) the maturity or other
liquidation of the last Loan (including the purchase as of any Payment Date by
the Class C Certificateholder at its option of the corpus of the Trust as
described in Section 8.01 of the Sale and Servicing Agreement) and the
subsequent distribution of amounts in respect of such Loans as provided in the
Related Documents, or (ii) the payment to Certificateholders of all amounts
required to be paid to them pursuant to this Agreement. In any case, there shall
be delivered to the Owner Trustee, the Indenture Trustee and the Rating Agencies
an Opinion of Counsel that all applicable preference periods under federal,
state and local bankruptcy, insolvency and similar laws have expired with
respect to the payments pursuant to clause (ii); provided, however, that in no
event shall the trust created by this Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants living on the
date of this Agreement of ▇▇▇▇ ▇▇▇▇▇▇▇ of the Commonwealth of Massachusetts; and
provided, further, that the rights to indemnification under Section 8.2 shall
survive the termination of the Trust. The Servicer shall promptly notify the
Owner Trustee of any prospective termination pursuant to this Section 9.1. The
bankruptcy, liquidation, dissolution, termination, resignation, expulsion,
withdrawal, death or incapacity of any Certificateholder, shall not (x) operate
to terminate this Agreement or the Trust, nor (y) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or Trust Property nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Within five Business Days of receipt of notice of final
distribution on the Certificates given pursuant to Section 8.01(b) of the Sale
and Servicing Agreement, the Owner Trustee shall mail written notice to each
Certificateholder specifying (i) the Payment Date upon which final payment of
the Certificates shall be made upon presentation and surrender of Certificates
at the office of the Paying Agent therein specified, (ii) the amount of any such
final payment, and (iii) that the Record Date otherwise applicable to such
Payment Date is not applicable, payments being made only upon presentation and
surrender of the Certificates at the office of the Paying Agent therein
specified. The Owner Trustee shall give such notice to the Certificate Registrar
at the time such notice is given to Certificateholders. In the event such notice
is given, (i) the Indenture Trustee shall make deposits into the Certificate
Distribution Account in accordance with Section 6.06 of the Sale and Servicing
Agreement, or, (ii) in the case of an optional purchase of Loans pursuant to
Section 8.01 of the Sale and Servicing Agreement, the Indenture Trustee shall
deposit the amount specified in Section 8.01 of the Sale and Servicing
Agreement. Upon presentation and surrender of the Certificates, the Paying Agent
shall cause to
9-1
be distributed to Certificateholders amounts distributable on such Payment Date
pursuant to Section 5.2.
(d) In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above-mentioned written notice, the Owner Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that remain
subject to this Agreement. Any funds which are payable to Certificateholders
remaining in the Trust after exhaustion of such remedies shall be distributed by
the Owner Trustee to The United Way (but only upon termination of this
Agreement), and the Certificateholders, by acceptance of their Certificates,
hereby waive any rights with respect to such funds.
(e) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
9-2
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for Owner Trustee.
The Owner Trustee shall at all times be a corporation (i) satisfying
the provisions of Section 3807(a) of the Business Trust Statute; (ii) authorized
to exercise corporate trust powers; (iii) having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State authorities; (iv) having (or having a parent which has) a long-term debt
rating of at least P-1 by ▇▇▇▇▇'▇ or AA- by S&P and a short-term debt rating of
A-1+ from S&P or otherwise acceptable to the Rating Agencies; and (v) shall not
be an Affiliate of the Seller. If such corporation shall publish reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Owner Trustee
shall resign immediately in the manner and with the effect specified in Section
10.2.
SECTION 10.2. Resignation or Removal of Owner Trustee.
The Owner Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor at least
30 days before the date specified in such instrument. Upon receiving such notice
of resignation, the Depositor shall promptly appoint a successor Owner Trustee
meeting the qualifications set forth in Section 10.1 by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner
Trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by the Depositor or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Owner Trustee. If the Depositor
shall remove the Owner Trustee under the authority of the immediately preceding
sentence, the Depositor shall promptly appoint a successor Owner Trustee meeting
the qualification requirements of Section 10.1 by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing Owner
Trustee so removed and one copy to the successor Owner Trustee and payment of
all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until all fees
10-1
and expenses, including any indemnity payments, due to the outgoing Owner
Trustee have been paid and until acceptance of appointment by the successor
Owner Trustee pursuant to Section 10.3. The Depositor shall provide notice of
such resignation or removal of the Owner Trustee to each of the Rating Agencies.
SECTION 10.3. Successor Owner Trustee.
Any successor Owner Trustee appointed pursuant to Section 10.2 shall
execute, acknowledge and deliver to the Depositor and to its predecessor Owner
Trustee an instrument accepting such appointment under this Agreement, and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties,
and obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee shall deliver
to the successor Owner Trustee all documents and statements and monies held by
it under this Agreement; and the predecessor Owner Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Owner Trustee
all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice of the successor Owner Trustee
to the Certificateholder, the Indenture Trustee, the Noteholders and the Rating
Agencies. If the Administrator shall fail to mail such notice within 10 days
after acceptance of appointment by the successor Owner Trustee, the successor
Owner Trustee shall cause such notice to be mailed at the expense of the
Administrator. Any successor Owner Trustee appointed hereunder shall promptly
file an amendment to the Certificate of Trust as required by the Business Trust
Statute.
SECTION 10.4. Merger or Consolidation of Owner Trustee.
Any corporation into which the Owner Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Owner Trustee shall be a party,
or any corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 10.1,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding,
and provided further that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Property or any
10-2
Collateral Security may at the time be located, the Administrator and the Owner
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Owner Trustee to act
as co-trustee, jointly with the Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Property, and to vest in such Person,
in such capacity, such title to the Trust, or any part thereof, and, subject to
the other provisions of this Section, such powers, duties, obligations, rights
and trusts as the Administrator and the Owner Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such appointment within
15 days after the receipt by it of a request so to do, the Owner Trustee shall
have the power to make such appointment. No co-trustee or separate trustee under
this Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 10.1 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.1.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
the Owner Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties, and
obligations (including the holding of title to the Trust Property or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article X. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any
10-3
lawful act under or in respect of this Agreement on its behalf and in its name.
If any separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Owner Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
10-4
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Amendment.
(a) This Agreement may be amended by the Depositor and the Owner
Trustee, without the consent of any of the Certificateholder or Noteholders, (i)
to cure any ambiguity, or (ii) to correct, supplement or modify any provisions
in this Agreement; provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests
of any Certificateholder or Noteholder.
(b) This Agreement may also be amended from time to time, by the
Depositor and the Owner Trustee with the consent of a Certificate Majority of
the Certificates and, if such amendment materially and adversely affects the
interests of Noteholders, the consent of a Note Majority (which consent of any
Holder of a Certificate or 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 Certificate or Note and of any
Certificate or 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
Certificate or Note) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the Holders of Certificates or Notes;
provided, however, that no such amendment shall (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Loans or distributions that shall be required to be made on any
Certificate or Note or the Class A-1 Interest Rate, the Class A-2 Interest Rate,
the Class A-3 Interest Rate, the Class A-4 Interest Rate, the Class A-5 Interest
Rate, the Class A-6 Interest Rate, the Class M-1 Interest Rate, the Class M-2
Interest Rate, the Class B-1 Interest Rate or the Class B-2 Interest Rate, or
(b) reduce the aforesaid percentage required to consent to any such amendment or
any waiver hereunder, without the consent of the Holders of all Certificates and
Notes then outstanding.
(c) Prior to the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder and the Indenture Trustee unless
such parties have previously received such notification.
(e) It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to Section 11.1(b) to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of Certificateholders and Noteholders provided for in this
Agreement) and of evidencing the authorization of the execution thereof by
11-1
Certificateholders shall be subject to such reasonable requirements as the Owner
Trustee may prescribe, including the establishment of record dates.
(f) Prior to the execution of any amendment to this Agreement, the
Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent to the execution and delivery of
such amendment have been satisfied. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
(g) The Depositor and the Owner Trustee may amend this Agreement in
order to effect a "financial asset securitization investment trust" ("FASIT")
election for all or a portion of the Trust; provided, that (i) the Depositor
delivers an Opinion of Counsel to the Owner Trustee to the effect that such
election will not adversely affect the Federal or applicable state income tax
characterization of any outstanding Notes or Certificates or the taxability of
the Trust under Federal or applicable state income tax laws or otherwise have a
material adverse effect on the Certificates or Notes, and (ii) the requirements
of clauses (c), (d) and (f) above are met.
SECTION 11.2. No Recourse.
Each Certificateholder by accepting a Certificate acknowledges that
such Certificateholder's Certificates represent beneficial interests in the
Trust only and do not represent interests in or obligations of the Seller, the
Depositor, the Servicer, the Owner Trustee, the Indenture Trustee or any
Affiliate of any of the foregoing and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated in
this Agreement, the Certificates or the Related Documents.
SECTION 11.3. No Petition.
The Owner Trustee, by entering into this Trust Agreement, and each
Certificateholder, by accepting a Certificate, hereby covenant and agree that
they will not at any time institute against the Seller, the Issuer or the Class
C Certificateholder, or join in any institution against the Seller, the Issuer
or the Class C Certificateholder, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, this Trust Agreement or any of the
Related Documents.
SECTION 11.4. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS
OF LAWS THEREOF AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
11-2
SECTION 11.5. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.6. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of
the Trust. The fractional undivided interests in the Trust represented by the
Certificates shall be nonassessable for any losses or expenses of the Trust or
for any reason whatsoever, and Certificates upon execution thereof by the Owner
Trustee pursuant to Section 3.3 are and shall be deemed fully paid.
SECTION 11.7. Third-Party Beneficiaries.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. The
parties further agree that the Indenture Trustee, the Noteholders and the
Certificateholders shall be deemed to be third party beneficiaries of this
Agreement. Except as otherwise provided in this Agreement, no other Person shall
have any right or obligation hereunder.
SECTION 11.8. Counterparts.
For the purpose of facilitating its execution and for other purposes,
this Agreement may be executed simultaneously in any number of counterparts,
each of which counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.
SECTION 11.9. Notices.
All demands, notices and communications under this Agreement shall be
in writing, personally delivered or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of the Depositor, at the following address: c/o Conseco Finance Corp., 1100
Landmark Towers, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Chief Financial Officer, (b) in the case of the Owner Trustee, at the
Corporate Trust Office and (c) in the case of each Rating Agency, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (for Standard & Poor's) Attention: Asset-Backed
Surveillance and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ABS
Monitoring Department (for ▇▇▇▇▇'▇), or at such other address as shall be
designated by any such party in a written notice to the other parties.
Notwithstanding the foregoing, any notice required or permitted to be mailed to
a Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register, and any notice so
mailed within the time prescribed in this
11-3
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
SECTION 11.10 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 Home
Loan Trust 1999-G, 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.
11-4
IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused
this Trust Agreement to be duly executed by their respective officers as of the
day and year first above written.
CONSECO FINANCE SECURITIZATIONS
CORP.,
as Depositor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Assistant Treasurer
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ATTEST:
CONSECO FINANCE CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Assistant Treasurer
EXHIBIT A
CERTIFICATE OF TRUST OF
CONSECO FINANCE HOME LOAN TRUST 1999-G
THIS Certificate of Trust of Conseco Finance Home Loan Trust 1999-G
(the "Trust") is being duly executed and filed by the undersigned trustee, to
form a business trust under the Delaware Business Trust Act (12 Del. Code, ss.
3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is Conseco
Finance Home Loan Trust 1999-G.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company, ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Administration.
3. This Certificate of Trust will be effective November 16, 1999.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a) of the Act.
WILMINGTON TRUST COMPANY,
as trustee
By:_______________________________
Name:_________________________
Title:________________________
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS B-1 CERTIFICATE
THIS TRUST CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT
TO THE NOTES TO THE EXTENT DESCRIBED IN THE INDENTURE
REFERRED TO HEREIN.
CONSECO FINANCE HOME LOAN TRUST 1999-G
10.48% CLASS B-1 LOAN-BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of home improvement contracts and promissory
notes and home equity loans secured by mortgages, deeds of trust or security
deeds on certain real property which is subject to the home improvement or home
equity loan to which it relates, all sold to the Trust by Conseco Finance
Securitizations Corp.
This Certificate does not represent an obligation of, or an interest in, Conseco
Finance Corp. or any affiliate thereof.
Certificate No. Denomination: $
Initial Cutoff Date: Aggregate Denomination of all
September 1, 1999 Class B-1 Certificates: $14,437,000
First Distribution Date: Interest Rate: 10.48%
December 15, 1999
Servicer: Final Scheduled Payment Date:
Conseco Finance Corp. June 15, 2024
CUSIP: ▇▇▇▇▇▇▇▇▇
This Certificate may not be acquired by (a) a pension, profit sharing
or other employee benefit plan, or an individual retirement account or ▇▇▇▇▇
Plan, subject to Title I of ERISA or Section 4975 of the Internal Revenue Code
of 1986, as amended (a "Benefit Plan") or (b) an entity whose underlying assets
include plan assets by reason of such Benefit Plan's investment in the entity
(including an insurance company acting on behalf of its general account) (each,
a "Benefit Plan Investor"). Prior to its purchase of this Certificate, the
proposed transferee of such Certificate must certify in writing (in the form of
letter attached as Exhibit D to the Trust Agreement) to the Seller, the
Servicer, the Owner Trustee and the Underwriter that it is not a Benefit Plan
Investor. Any transfer of this Certificate in violation of the foregoing shall
be void and of no effect.
B-1-1
Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Trust or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
B-1-2
THIS CERTIFIES THAT ____________________ is the registered owner of a
nonassessable, fully paid, fractional undivided interest in Conseco Finance Home
Loan Trust 1999-G (the "Trust"). The Trust was created pursuant to a Trust
Agreement, dated as of September 1, 1999 (the "Trust Agreement"), between
Conseco Finance Securitizations Corp., as depositor (the "Depositor") and
Wilmington Trust Company, not in its individual capacity but solely as owner
trustee (the "Owner Trustee"), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the Trust
Agreement or the Sale and Servicing Agreement, dated as of September 1, 1999
(the "Sale and Servicing Agreement"), among the Trust, the Depositor and Conseco
Finance Corp., as Originator, Guarantor and Servicer.
This Certificate is one of the duly authorized Certificates designated
as "10.48% Class B-1 Loan-Backed Certificates" (herein called the "Class B-1
Certificates"). The Trust has also issued its Class B-2 Loan-Backed Certificates
(together with the Class B-1 Certificates, the "Class B Certificates") and its
Class C Certificates (together with the Class B Certificates, the
"Certificates") and has issued under the Indenture, dated as of September 1,
1999, between the Trust and U.S. Bank Trust National Association, as trustee,
the Loan-Backed Notes (the "Notes") designated as the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class A-6, Class M-1 and Class M-2 Notes. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound. The property of the Trust includes (as more fully described in the
Trust Agreement) a pool of home improvement contracts and promissory notes and
home equity loans (the "Loans") which are secured by mortgages, deeds of trust
or security deeds on certain real property which is the subject of the home
improvement or home equity loans to which it relates, certain monies due
thereunder on or after the Cutoff Date, an assignment of the Seller's security
interests in the related real property, certain bank accounts and property
(including the right to receive Liquidation Proceeds) securing the Loans, and
proceeds of all of the foregoing.
Under the Trust Agreement, there will be distributed on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (the "Payment Date"), commencing on December 15, 1999 to the person
in whose name this Certificate is registered at the close of business on the
Business Day immediately preceding such Payment Date (the "Record Date"), such
Certificateholder's fractional undivided interest in the interest and principal
then distributable on the Class B-1 Certificates to the extent of the funds
available therefor.
It is the intent and agreement of the Depositor, the Servicer and the
Certificateholders that, for purposes of Federal income, state and local income
and franchise and any other income taxes, the Trust will be treated as a
partnership and the Certificateholders will be treated as partners in that
partnership. The Certificateholders, by acceptance of a Certificate, agree to
treat, and to take no action inconsistent with the treatment of, the
Certificates for such tax purposes as partnership interests in the Trust.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, the Trust or the Class C
B-1-3
Certificateholder or join in any institution against the Depositor, the Trust or
the Class C Certificateholder of any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, the Trust Agreement or any
of the Related Documents.
Except as provided in the Trust Agreement, distributions on this
Certificate will be made by the Owner Trustee by check or money order mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Owner Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained for that purpose by the Owner Trustee. The Record Date otherwise
applicable to distributions shall not be applicable to such final distribution.
Except as provided in the Trust Agreement, distributions on this
Certificate will be made by the Owner Trustee by check or money order mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Owner Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained for that purpose by the Owner Trustee. The Record Date otherwise
applicable to distributions shall not be applicable to such final distribution.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Trust
Agreement at any time by the Depositor and the Owner Trustee. In certain limited
circumstances, the Trust Agreement may only be amended with the consent of the
Holders of Class B-1 Certificates evidencing not less than a majority of the
Class B-1 Principal Balance and, in certain circumstances, 100% of the Class B-1
Principal Balance. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and on all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate.
As provided in the Trust Agreement and subject to certain limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Registrar upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in Wilmington, Delaware accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate fractional undivided interest in the Trust issued
to the designated transferee. The initial Certificate Registrar appointed under
the Trust Agreement is Wilmington Trust Company.
B-1-4
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 and integral multiples thereof. As provided
in the Trust Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
of a like aggregate fractional undivided interest, as requested by the Holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Owner Trustee may require payment of a sum
sufficient to cover any tax or governmental charges payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the person in whose name this
Certificate is registered as the owner hereof for the purpose of receiving
distributions and for all other purposes, and neither the Owner Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Certificateholders
of all amounts required to be paid to them pursuant to the Trust Agreement and
the disposition of all property held as part of the Trust. The Class C
Certificateholder may at its option purchase the corpus of the Trust at a price
specified in the Sale and Servicing Agreement, and such purchase of the Loans
and other property of the Trust will effect early retirement of the
Certificates; provided, however, such right of purchase is exercisable only as
of a Record Date as of which the Pool Scheduled Principal Balance is less than
or equal to 20% of the Cutoff Date Pool Principal Balance. In the event that the
Class C Certificateholder does not so purchase the corpus of the trust, the
Indenture Trustee shall conduct an auction as provided in Section 8.01(e) of the
Sale and Servicing Agreement.
If such Trust corpus purchase option is not exercised, then bids will
be solicited by the Indenture Trustee for the purchase of the Loans remaining in
the Trust. If a bid is received and the amount of such bid is at least equal to
the greater of (a) the fair market value of the Loans or (b) the amount equal to
fees and advances of the Servicer and all unpaid interest and principal on the
Notes and Certificates, the Loans will be sold and the net sale proceeds
distributed to effect early retirement of the Certificates.
The recitals contained herein shall be taken as the statements of the
Depositor or the Servicer, as the case may be, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Certificate or of any
Loan or related document.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual or facsimile
signature, this Certificate shall not entitle the Holder hereof to any benefit
under the Trust Agreement or the Sale and Servicing Agreement or be valid for
any purpose.
B-1-5
IN WITNESS WHEREOF, the Owner Trustee on behalf of the Trust and not in
its individual capacity has caused this Certificate to be duly executed.
Dated: November 16, 1999
CONSECO FINANCE HOME LOAN TRUST
1999-G
By WILMINGTON TRUST COMPANY, not in its
individual capacity but solely on
behalf of the Issuer as Owner Trustee
under the Trust Agreement
By__________________________________
Name:_____________________________
Title:____________________________
Attest
Name:_____________________________
Title:____________________________
B-1-6
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner
Trustee
By __________________________________
as Authenticating Agent
B-1-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto ________________________ (PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
(Please print or typewrite name and address, including postal zip code, of
assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated: *_________________________________
Signature Guaranteed:
*_________________________________
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatsoever. Such signature must be
guaranteed by a member firm of The New York Stock Exchange, Inc. or a commercial
bank or trust company.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS B-2 CERTIFICATE
THIS TRUST CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT
TO THE NOTES TO THE EXTENT DESCRIBED IN THE INDENTURE
REFERRED TO HEREIN, AND TO THE CLASS B-2 CERTIFICATES
REFERRED TO HEREIN.
CONSECO FINANCE HOME LOAN TRUST 1999-G
10.96% CLASS B-2 LOAN-BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of home improvement contracts and promissory
notes and home equity loans secured by mortgages, deeds of trust or security
deeds on certain real property which is subject to the home improvement or home
equity loan to which it relates, all sold to the Trust by Conseco Finance
Securitizations Corp.
Certificate No. Denomination: $
Initial Cutoff Date: Aggregate Denomination of all
September 1, 1999 Class B-2 Certificates: $19,938,000
First Payment Date: Pass-Through Rate: 10.96%
December 15, 1999
Servicer: Final Scheduled Payment Date:
Conseco Finance Corp. December 15, 2029
CUSIP: 20847R AK 1
This Certificate may not be acquired by (a) a pension, profit sharing
or other employee benefit plan, or an individual retirement account or ▇▇▇▇▇
Plan, subject to Title I of ERISA or Section 4975 of the Internal Revenue Code
of 1986, as amended (a "Benefit Plan") or (b) an entity whose underlying assets
include plan assets by reason of such Benefit Plan's investment in the entity
(including an insurance company acting on behalf of its general account) (each,
a "Benefit Plan Investor"). Prior to its purchase of this Certificate, the
proposed transferee of such Certificate must certify in writing (in the form of
letter attached as Exhibit D to the Trust Agreement) to the Seller, the
Servicer, the Owner Trustee and the Underwriter that it is not a Benefit Plan
Investor. Any transfer of this Certificate in violation of the foregoing shall
be void and of no effect.
Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Trust or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the
B-2-1
name of Cede & Co. or in such other name as requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
B-2-2
THIS CERTIFIES THAT _______________________ is the registered owner of
a nonassessable, fully paid, fractional undivided interest in Conseco Finance
Home Loan Trust 1999-G (the "Trust"). The Trust was created pursuant to a Trust
Agreement, dated as of September 1, 1999 (the "Trust Agreement"), between
Conseco Finance Securitizations Corp., as depositor (the "Depositor") and
Wilmington Trust Company, not in its individual capacity but solely as owner
trustee (the "Owner Trustee"), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the Trust
Agreement or the Sale and Servicing Agreement, dated as of September 1, 1999
(the "Sale and Servicing Agreement"), among the Trust, the Depositor and Conseco
Finance Corp., as Originator, Guarantor and Servicer.
This Certificate is one of the duly authorized Certificates designated
as "10.96% Class B-2 Loan-Backed Certificates" (herein called the "Class B-2
Certificates"). The Trust has also issued its Class B-1 Loan-Backed Certificates
(together with the Class B-2 Certificates, the "Class B Certificates") and its
Class C Loan-Backed Certificates (together with the Class B Certificates, the
"Certificates") and has issued under the Indenture, dated as of September 1,
1999, between the Trust and U.S. Bank Trust National Association, as trustee,
the Loan-Backed Notes (the "Notes") designated as the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class A-6, Class M-1 and Class M-2 Notes. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound. The property of the Trust includes (as more fully described in the
Trust Agreement) a pool of home improvement contracts and promissory notes and
home equity loans (the "Loans") which are secured by mortgages, deeds of trust
or security deeds on certain real property which is the subject of the home
improvement or home equity loans to which it relates, certain monies due
thereunder on or after the Cutoff Date, an assignment of the Seller's security
interests in the related real property, certain bank accounts and property
(including the right to receive Liquidation Proceeds) securing the Loans, and
proceeds of all of the foregoing.
Under the Trust Agreement, there will be distributed on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (the "Payment Date"), commencing on December 15, 1999 to the person
in whose name this Certificate is registered at the close of business on the
Business Day immediately preceding such Payment Date (the "Record Date"), such
Certificateholder's fractional undivided interest in the interest and principal
then distributable on the Class B-2 Certificates to the extent of the funds
available therefor. Such distributions shall be made only after distributions
due on such date on the Class B-1 Certificates have been made in full.
It is the intent and agreement of the Depositor, the Servicer and the
Certificateholders that, for purposes of Federal income, state and local income
and franchise and any other income taxes, the Trust will be treated as a
partnership and the Certificateholders will be treated as partners in that
partnership. The Certificateholders, by acceptance of a Certificate, agree to
treat, and to take no action inconsistent with the treatment of, the
Certificates for such tax purposes as partnership interests in the Trust.
B-2-3
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, the Trust or the Class C Certificateholder or join in any
institution against the Depositor, the Trust or the Class C Certificateholder of
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Trust Agreement or any of the Related Documents.
Except as provided in the Trust Agreement, distributions on this
Certificate will be made by the Owner Trustee by check or money order mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Owner Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained for that purpose by the Owner Trustee. The Record Date otherwise
applicable to distributions shall not be applicable to such final distribution.
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Servicer, the Owner Trustee or any Affiliate of any of them.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds in the Certificate Account and the Class B-2
Limited Guaranty of the Guarantor, to the extent available for distribution to
the Certificateholder as provided in the Trust Agreement. The Certificates are
limited in right of payment to certain collections and recoveries respecting the
Loans, all as more specifically set forth in the Trust Agreement. A copy of the
Trust Agreement may, upon request, be examined by any Certificateholder during
normal business hours at the principal office of the Depositor and at such other
places, if any, designated by the Depositor.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Trust
Agreement at any time by the Depositor and the Owner Trustee. In certain limited
circumstances, the Trust Agreement may only be amended with the consent of the
Holders of Certificates evidencing not less than a majority of the Class B-2
Principal Balance and, in certain circumstances, 100% of the Class B-2 Principal
Balance. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and on all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate.
As provided in the Trust Agreement and subject to certain limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Registrar upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in Wilmington, Delaware accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate fractional undivided interest in the Trust issued
to the designated transferee. The initial Certificate Registrar appointed under
the Trust Agreement is Wilmington Trust Company.
B-2-4
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 and integral multiples thereof. As provided
in the Trust Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
of a like aggregate fractional undivided interest, as requested by the Holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Owner Trustee may require payment of a sum
sufficient to cover any tax or governmental charges payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the person in whose name this
Certificate is registered as the owner hereof for the purpose of receiving
distributions and for all other purposes, and neither the Owner Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Certificateholders
of all amounts required to be paid to them pursuant to the Trust Agreement and
the disposition of all property held as part of the Trust. The Class C
Certificateholder may at its option purchase the corpus of the Trust at a price
specified in the Sale and Servicing Agreement, and such purchase of the Loans
and other property of the Trust will effect early retirement of the
Certificates; provided, however, such right of purchase is exercisable only as
of a Record Date as of which the Pool Scheduled Principal Balance is less than
or equal to 20% of the Cutoff Date Pool Principal Balance. In the event that the
Class C Certificateholder does not so purchase the corpus of the trust, the
Indenture Trustee shall conduct an auction as provided in Section 8.01(e) of the
Sale and Servicing Agreement.
If such Trust corpus purchase option is not exercised, then bids will
be solicited by the Indenture Trustee for the purchase of the Loans remaining in
the Trust. If a bid is received and the amount of such bid is at least equal to
the greater of (a) the fair market value of the Loans or (b) the amount equal to
fees and advances of the Servicer and all unpaid interest and principal on the
Notes and Certificates, the Loans will be sold and the net sale proceeds
distributed to effect early retirement of the Certificates.
The recitals contained herein shall be taken as the statements of the
Depositor or the Servicer, as the case may be, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Certificate or of any
Loan or related document.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual or facsimile
signature, this Certificate shall not entitle the Holder hereof to any benefit
under the Trust Agreement or the Sale and Servicing Agreement or be valid for
any purpose.
B-2-5
IN WITNESS WHEREOF, the Owner Trustee on behalf of the Trust and not in
its individual capacity has caused this Certificate to be duly executed.
Dated: November 16, 1999
CONSECO FINANCE HOME LOAN TRUST
1999-G
By WILMINGTON TRUST COMPANY, not
in its individual capacity but solely on
behalf of the Issuer as Owner Trustee
under the Trust Agreement
By ________________________________
Name:___________________________
Title:__________________________
Attest
Name:___________________________
Title:__________________________
B-2-6
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner
Trustee
By__________________________________
as Authenticating Agent
B-2-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto _______________________ (PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE)
(Please print or typewrite name and address, including postal zip code, of
assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated: *_________________________________
Signature Guaranteed:
*_________________________________
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatsoever. Such signature must be
guaranteed by a member firm of The New York Stock Exchange, Inc. or a commercial
bank or trust company.
B-2-1
EXHIBIT C
FORM OF CLASS C CERTIFICATE
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT
TO THE NOTES AND THE CLASS B CERTIFICATES TO THE EXTENT
DESCRIBED IN THE SALE AND SERVICING AGREEMENT, THE
INDENTURE AND THE TRUST AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.4 OF THE TRUST AGREEMENT REFERRED TO
HEREIN.
CONSECO FINANCE HOME LOAN TRUST 1999-G
evidencing a beneficial interest in the Trust, as defined below, the property of
which includes a pool of home improvement contracts and promissory notes and
home equity loans secured by mortgages, deeds of trust or security deeds on
certain real property which is subject to the home improvement or home equity
loan to which it relates, all sold to the Trust by Conseco Finance
Securitization Corp.
This Certificate does not represent an obligation of, or an interest in, Conseco
Finance Corp. or any affiliate thereof.
Certificate No. Percentage Interest: ____%
First Payment Date:
December 15, 1999
Servicer:
Conseco Finance Corp.
This Certificate may not be acquired by (a) a pension, profit sharing
or other employee benefit plan, or an individual retirement account or ▇▇▇▇▇
Plan, subject to Title I of ERISA or Section 4975 of the Internal Revenue Code
of 1986, as amended (a "Benefit Plan") or (b) an entity whose underlying assets
include plan assets by reason of such Benefit Plan's investment in the entity
(including an insurance company acting on behalf of its general account) (each,
a "Benefit Plan Investor"). Prior to its purchase of this Certificate, the
proposed transferee of such Certificate must certify in writing (in the form of
letter attached as Exhibit D to the Trust Agreement) to the Seller, the
Servicer, the Owner Trustee and the Underwriter that it is not a
C-1
Benefit Plan Investor. Any transfer of this Certificate in violation of the
foregoing shall be void and of no effect.
THIS CERTIFIES THAT ______________ is the registered owner of a
nonassessable, fully paid, fractional undivided interest in the Conseco Finance
Home Loan Trust 1999-G (the "Trust"). The Trust was created pursuant to a Trust
Agreement, dated as of September 1, 1999 (the "Trust Agreement"), between
Conseco Finance Securitizations Corp., as depositor (the "Depositor"), and
Wilmington Trust Company, not in its individual capacity but solely as Owner
Trustee (the "Owner Trustee"), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the Trust
Agreement or the Sale and Servicing Agreement, dated as of September 1, 1999
(the "Sale and Servicing Agreement"), between the Trust, the Depositor and
Conseco Finance Corp., as Originator, Guarantor and Servicer.
This Certificate is the duly authorized Class C Certificate issued
under the Trust Agreement (herein called the "Class C Certificate"). The Trust
has also issued under the Trust Agreement the Class B-1 and Class B-2
Certificates. The Trust has also issued under the Indenture, dated as of
September 1, 1999, between the Trust and U.S. Bank Trust National Association,
as trustee, the Loan-Backed Notes (the "Notes") designated as the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class M-1 and Class M-2
Notes. This Class C Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The property of the Trust includes (as more fully
described in the Trust Agreement) a pool of home improvement contracts and
promissory notes and home equity loans (the "Loans") which are secured by
mortgages, deeds of trust or security deeds on certain real property which is
the subject of the home improvement or home equity loans to which it relates,
certain monies due thereunder on or after the Cutoff Date, an assignment of the
Seller's security interests in the related real property, certain bank accounts
and property (including the right to receive Liquidation Proceeds) securing the
Loans, and proceeds of all of the foregoing.
Under the Trust Agreement, there will be distributed on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (the "Payment Date"), commencing on December 15, 1999, to the
person in whose name this Certificate is registered at the close of business on
the Business Day immediately preceding such Payment Date (the "Record Date"),
such Certificateholder's fractional undivided interest in the amounts then
distributable on the C Class Certificate to the extent of the funds available
therefor.
It is the intent and agreement of the Depositor, the Servicer and the
Certificateholders that, for purposes of Federal income, state and local income
and franchise and any other income taxes, the Trust will be treated as a
partnership and the Certificateholders will be treated as partners in that
partnership. The Certificateholders, by acceptance of a Certificate, agree to
treat, and to take no action inconsistent with the treatment of, the
Certificates for such tax purposes as partnership interests in the Trust.
C-2
The Certificateholder, by its acceptance of a Class C Certificate,
covenants and agrees that it will not at any time institute against or join in
any institution against the Depositor or the Trust of any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificates, the Notes, the
Trust Agreement or any of the Related Documents.
Except as provided in the Trust Agreement, distributions on this Class
C Certificate will be made by the Paying Agent by check or money order mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained for that purpose by the Owner Trustee. The Record Date otherwise
applicable to distributions shall not be applicable to such final distribution.
The Class C Certificates do not represent an obligation of, or an
interest in, the Depositor, the Servicer, the Owner Trustee or any Affiliate of
any of them. The Class C Certificates are limited in right of payment to certain
collections and recoveries respecting the Loans, all as more specifically set
forth in the Trust Agreement. A copy of the Trust Agreement may, upon request,
be examined by any Certificateholder during normal business hours at the
principal office of the Depositor and at such other places, if any, designated
by the Depositor.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Trust
Agreement at any time by the Depositor and the Owner Trustee. In certain limited
circumstances, the Trust Agreement may only be amended with the consent of the
Holders of Certificates evidencing not less than a Certificate Majority. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and on all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
As provided in the Trust Agreement and subject to certain limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Registrar upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in Wilmington, Delaware accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate fractional undivided interest in the Trust issued
to the designated transferee. The initial Certificate Registrar appointed under
the Trust Agreement is Wilmington Trust Company.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, Class C Certificates are exchangeable for new Class C
Certificates of a like interest, as requested
C-3
by the Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee may require payment
of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the person in whose name this
Class C Certificate is registered as the owner hereof for the purpose of
receiving distributions and for all other purposes, and neither the Owner
Trustee, the Certificate Registrar nor any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Class C
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the disposition of all property held as part of the Trust.
The Class C Certificateholder may at its option purchase the corpus of the Trust
at a price specified in the Sale and Servicing Agreement, and such purchase of
the Loans and other property of the Trust will effect early retirement of the
Certificates; provided, however, such right of purchase is exercisable only as
of a Record Date as of which the Pool Scheduled Principal Balance is less than
or equal to 20% of the Cutoff Date Pool Principal Balance.
The recitals contained herein shall be taken as the statements of the
Depositor or the Servicer, as the case may be, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Class C Certificate or
of any Loan or related document.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual or facsimile
signature, this Certificate shall not entitle the Holder hereof to any benefit
under the Trust Agreement or the Sale and Servicing Agreement or be valid for
any purpose.
C-4
IN WITNESS WHEREOF, the Owner Trustee on behalf of the Trust and not in
its individual capacity has caused this Certificate to be duly executed.
Dated: November 16, 1999
CONSECO FINANCE HOME LOAN TRUST
1999-G
By WILMINGTON TRUST COMPANY, not in
its individual capacity but solely on
behalf of the Issuer as Owner Trustee
under the Trust Agreement
By:______________________________________
Name:_________________________________
Title:________________________________
C-5
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner Trustee
By:________________________________________
as Authenticating Agent
C-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto ___________________________ (PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
(Please print or typewrite name and address, including postal zip code, of
assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated: *_________________________________
Signature Guaranteed:
*_________________________________
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatsoever. Such signature must be
guaranteed by a member firm of The New York Stock Exchange, Inc. or a commercial
bank or trust company.
C-7
EXHIBIT D
FORM OF REPRESENTATION LETTER AND CERTIFICATION
___________, 199__
Conseco Finance Corp. Bear, ▇▇▇▇▇▇▇ & Co. Inc.
1100 Landmark Towers ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Administration
Re: Conseco Finance Home Loan Trust 1999-G
Ladies and Gentlemen:
This is to notify you as to the transfer of Conseco Finance Home Loan
Trust 1999-G Class C Certificate, No ____.
The undersigned is the holder of the Class C Certificate and with this
notice hereby deposits with the Trustee a certificate representing the
Certificate and requests that Class C Certificates in the same percentage
interest be issued and executed on behalf of the Trust and authenticated by the
Trustee, as specified in the Trust Agreement, and registered to the purchaser on
________,____, as follows:
Name:
Denominations:
Address:
Taxpayer I.D. No.:
D-1
In connection with the proposed purchase, the undersigned hereby
confirms that:
1. The undersigned is not (a) a pension, profit sharing or other
employee benefit plan, or an individual retirement account or ▇▇▇▇▇ Plan,
subject to Title I of ERISA or Section 4975 of the Internal Revenue Code of
1986, as amended (a "Benefit Plan") or (b) an entity whose underlying assets
include plan assets by reason of such Benefit Plan's investment in the entity
(including an insurance company acting on behalf of its general account) (each,
a "Benefit Plan Investor").
2. The undersigned understands that the Class C Certificate has not
been and will not be registered under the Securities Act of 1933 (the "1933
Act") and may be resold (which resale is not currently contemplated) only if
registered pursuant to the provisions of the 1933 Act or if an exemption from
registration is available, that Conseco Finance Securitizations Corp. is not
required to register the Class C Certificate and that any transfer must comply
with Section 3.4 of the Trust Agreement relating to the Certificates.
3. The undersigned will comply with all applicable federal and state
securities laws in connection with any subsequent resale of the Class C
Certificate.
4. The undersigned is a sophisticated institutional investor and has
knowledge and experience in financial and business matters and is capable of
evaluating the merits and risks of its investment in the Class C Certificate and
is able to bear the economic risk of such investment.
5. The undersigned is acquiring the Class C Certificate as principal
for its own account (or for the account of one or more other institutional
investors for which it is acting as duly authorized fiduciary or agent) for the
purpose of investment and not with a view to or for sale in connection with any
distribution thereof, subject nevertheless to any requirement of law that the
disposition of the undersigned's property shall at all times be and remain
within its control.
6. The undersigned understands that such Class C Certificate will bear
a legend substantially as set forth in the form of Class C Certificate included
in the Trust Agreement.
7. The undersigned agrees that it will obtain from any undersigned of
the Class C Certificate from it the same representations, warranties and
agreements contained in the foregoing paragraphs 1 through 6 and in this
paragraph 7.
8. The undersigned understands that any purported transfer of any Class
C Certificate in contravention of the restrictions and conditions set forth in
paragraphs 1 through 7 above (including any violation of the representation in
paragraph 1 by an investor who continues to hold a Class C Certificate occurring
any time after the transfer in which it acquired such Class C Certificate) shall
be null and void, and the purported transferee shall not be recognized by the
Trust or any other person as a Certificateholder for any purpose.
D-2
9. The person signing this letter on behalf of the ultimate beneficial
purchaser of the Class C Certificate has been duly authorized by such beneficial
purchaser of the Class C Certificate to do so.
10. The Class C Certificate purchased by the undersigned should be
registered in the name set forth on Schedule 1 hereto. All payments on the Class
C Certificates held by the undersigned should be wired in accordance with the
instructions set forth on Schedule 1 hereto unless the undersigned otherwise
notifies the Owner Trustee in writing.
You are entitled to rely upon this letter, and the undersigned
understands that, in granting their respective consents to the purchase of Class
C Certificate, the Depositor, the Servicer, the Trustee and the Underwriter will
rely on the undersigned's representations and warranties in this letter and on
the undersigned's certifications in the documents delivered by the undersigned
to the Depositor, the Servicer, the Owner Trustee or the Underwriter in
conjunction with the purchase of Class C Certificate by the undersigned. You are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By:________________________________________
Name, Chief Financial or other Executive
Officer
D-3
Schedule 1
----------
Registration and Payment Instructions
-------------------------------------
Registration Instructions:
--------------------------
Full Legal Name of Purchaser:___________________________________________________
Name in Which Class C Certificates Should be Registered:________________________
Payment Instructions:
Name of Bank:________________________________
Address of Bank:_____________________________
Account Name:________________________________
Account Number:______________________________
ABA Number:__________________________________
Reference:___________________________________
Notice Information:
-------------------
Address:_____________________________________
_____________________________________
Attention:___________________________________
Telephone:___________________________________
Telefax:_____________________________________
D-4
EXHIBIT E
FORM OF CERTIFICATE DEPOSITORY AGREEMENT
E-1