EXHIBIT 4.4
TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
CONSECO FINANCE CORP.
Seller
dated as of
September 1, 1999
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS.......................................................1
SECTION 1.1. General........................................................1
SECTION 1.2. Specific Terms.................................................1
SECTION 1.3. Usage of Terms.................................................3
SECTION 1.4. No Recourse....................................................3
ARTICLE II. CONVEYANCE OF THE INITIAL LOANS
AND THE INITIAL OTHER CONVEYED PROPERTY...........................4
SECTION 2.1. Conveyance of the Initial Loans and the Initial
Other Conveyed Property........................................4
SECTION 2.2. Purchase Price of Initial Loans................................4
SECTION 2.3. Conveyance of Subsequent Loans and Subsequent
Other Conveyed Property........................................4
ARTICLE III. REPRESENTATIONS AND WARRANTIES....................................6
SECTION 3.1. Representations and Warranties of Seller.......................6
SECTION 3.2. Representations and Warranties of CFSC.........................8
ARTICLE IV. COVENANTS OF SELLER..............................................10
SECTION 4.1. Transfer of Loan..............................................10
SECTION 4.2. Costs and Expenses............................................10
SECTION 4.3. Indemnification...............................................11
ARTICLE V. REPURCHASES......................................................11
SECTION 5.1. Repurchase of Loans Upon Breach of Warranty...................11
SECTION 5.2. Reassignment of Purchased Loans...............................12
SECTION 5.3. Waivers.......................................................12
ARTICLE VI. MISCELLANEOUS....................................................13
SECTION 6.1. Liability of Seller...........................................13
SECTION 6.2. Merger or Consolidation of Seller or CFSC.....................13
SECTION 6.3. Limitation on Liability of Seller and Others..................13
SECTION 6.4. Amendment.....................................................14
SECTION 6.5. Notices.......................................................15
SECTION 6.6. Merger and Integration........................................15
SECTION 6.7. Severability of Provisions....................................15
SECTION 6.8. Intention of the Parties......................................15
SECTION 6.9. Governing Law.................................................16
SECTION 6.10. Counterparts..................................................16
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SECTION 6.11. Conveyance of the Initial Loans and the Initial
Other Conveyed Property to the Trust..........................16
SECTION 6.12. Nonpetition Covenant..........................................16
SCHEDULES
Schedule A -- Schedule of Initial Loans
EXHIBITS
Exhibit A -- Form of Subsequent Transfer Agreement
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TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT, dated as of September 1, 1999, executed
between Conseco Finance Securitizations Corp., a Minnesota corporation, as
purchaser ("CFSC"), and Conseco Finance Corp., a Delaware corporation, as seller
("Seller").
W I T N E S S E T H:
WHEREAS, CFSC has agreed to purchase from Seller and Seller, pursuant
to this Agreement, is transferring to CFSC the certain home improvement and home
equity loans specified in the Schedule of Initial Loans attached hereto as
Schedule A (the "Initial Loans") and the Initial Other Conveyed Property; and
WHEREAS, CFSC has agreed to purchase from Seller and Seller has agreed
to transfer to CFSC the Subsequent Loans and Subsequent Other Conveyed Property
in an amount set forth herein, prior to December 17, 1999.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, CFSC and Seller, intending to be legally
bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. General. The specific terms defined in this Article
include the plural as well as the singular. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Article,
Section, Schedule and Exhibit references, unless otherwise specified, refer to
Articles and Sections of and Schedules and Exhibits to this Agreement.
Capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the Sale and Servicing Agreement, dated as of
September 1, 1999, by and among Conseco Finance Securitizations Corp. (as
Seller), Conseco Finance Corp. (in its individual capacity and as Originator,
Servicer and Guarantor), and Conseco Finance Home Loan Trust 1999-G (as Issuer)
(the "Trust").
SECTION 1.2. Specific Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Agreement" shall mean this Transfer Agreement and all amendments
hereof and supplements hereto.
"Closing Date" means November 16, 1999.
"Indenture Trustee" means U.S. Bank Trust National Association, a
national banking association organized under the laws of the United States, as
Indenture Trustee under the Indenture and not in its individual capacity, or any
successor Indenture Trustee under the Indenture.
"Initial Other Conveyed Property" means all monies at any time paid or
payable on the Initial Loans or in respect thereof after the Initial Cutoff Date
(including amounts due on or before the Initial Cutoff Date but received by
Seller after the Initial Cutoff Date), an assignment of security interests in
the related real estate, the Collection Account (including all Eligible
Investments therein and all proceeds therefrom), all items contained in the Loan
Files relating to the Initial Loans, any and all other documents or electronic
records that Seller keeps on file in accordance with its customary procedures
relating to the Initial Loans, the Obligors or the related real estate, property
(including the right to receive future Liquidation Proceeds) that secures an
Initial Loan and that has been acquired by or on behalf of the Trust pursuant to
liquidation of such Initial Loan, and all proceeds of the foregoing.
"Initial Loans" means the Loans listed on the Schedule of Initial Loans
attached hereto as Schedule A.
"Other Conveyed Property" means the Initial Other Conveyed Property
conveyed by Seller to CFSC pursuant to this Agreement together with any and all
Subsequent Other Conveyed Property conveyed by Seller to CFSC pursuant to each
Subsequent Transfer Agreement.
"Owner Trustee" means Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as trustee of the Trust,
and any successor trustee appointed and acting pursuant to the Trust Agreement.
"Related Documents" means the Notes, the Certificates, the Sale and
Servicing Agreement, the Trust Agreement, the Indenture, each Subsequent
Purchase Agreement and the Underwriting Agreement among Seller, CFSC and the
underwriter of the Notes and the Certificates. The Related Documents to be
executed by any party are referred to herein as "such party's Related
Documents," "its Related Documents" or by a similar expression.
"Repurchase Event" means the occurrence of a breach of any of Seller's
representations and warranties hereunder or under any Subsequent Purchase
Agreement or any other event which requires the repurchase of a Loan by Seller
under the Sale and Servicing Agreement.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of September 1, 1999, executed and delivered by Conseco Finance Corp.,
as Originator, Servicer and Guarantor, Conseco Finance Securitizations Corp., as
Seller, and the Trust.
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"Schedule of Initial Loans" means the schedule of all Loans sold and
transferred pursuant to this Agreement which is attached hereto as Schedule A.
"Schedule of Loans" means the Schedule of Initial Loans attached hereto
as Schedule A as supplemented by each Schedule of Subsequent Loans attached to
each Subsequent Purchase Agreement as Schedule A.
"Schedule of Subsequent Loans" means the schedule of all Loans sold and
transferred pursuant to a Subsequent Purchase Agreement which is attached to
such Subsequent Purchase Agreement as Schedule A, which Schedule of Subsequent
Loans shall supplement the Schedule of Initial Loans.
"Subsequent Loans" means the Loans specified in the Schedule of
Subsequent Loans attached as Schedule A to each Subsequent Purchase Agreement.
"Subsequent Other Conveyed Property" means the Subsequent Other
Conveyed Property conveyed by Seller to CFSC pursuant to each Subsequent
Purchase Agreement.
"Subsequent Transfer Agreement" has the meaning assigned in Section
2.3(b)(iii).
"Trust" means the trust created by the Trust Agreement, the estate of
which consists of the Trust Property.
"Trust Property" means the property and proceeds of every description
conveyed by CFSC to the Trust pursuant to the Sale and Servicing Agreement and
pursuant to any Subsequent Transfer Agreement, together with the Trust Accounts
(including all Eligible Investments therein and all proceeds therefrom).
SECTION 1.3. Usage of Terms. With respect to all terms used in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement, or the Sale and
Servicing Agreement, the Trust Agreement or the Indenture; references to Persons
include their permitted successors and assigns; and the terms "include" or
"including" mean "include without limitation" or "including without limitation."
SECTION 1.4. No Recourse. Without limiting the obligations of Seller
hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of Seller,
or of any predecessor or successor of Seller.
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ARTICLE II
CONVEYANCE OF THE INITIAL LOANS
AND THE INITIAL OTHER CONVEYED PROPERTY
SECTION 2.1. Conveyance of the Initial Loans and the Initial Other
Conveyed Property. Subject to the terms and conditions of this Agreement, Seller
hereby sells, transfers, assigns, and otherwise conveys to CFSC without recourse
(but without limitation of its obligations in this Agreement or in the Sale and
Servicing Agreement), and CFSC hereby purchases, all right, title and interest
of Seller in and to the Initial Loans and the Initial Other Conveyed Property.
It is the intention of Seller and CFSC that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Initial Loans and
the Initial Other Conveyed Property from Seller to CFSC, conveying good title
thereto free and clear of any Liens, and the Initial Loans and the Initial Other
Conveyed Property shall not be part of Seller's estate in the event of the
filing of a bankruptcy petition by or against Seller under any bankruptcy or
similar law.
SECTION 2.2. Purchase Price of Initial Loans. Simultaneously with the
conveyance of the Initial Loans and the Initial Other Conveyed Property to CFSC,
CFSC has paid or caused to be paid to or upon the order of Seller approximately
$269,864,336.27 by wire transfer of immediately available funds (representing
the proceeds to CFSC from the sale of the Initial Loans after (i) deducting
expenses of $725,000 incurred by CFSC in connection with such sale and (ii)
depositing the Pre-Funded Amount in the Pre-Funding Account.
SECTION 2.3. Conveyance of Subsequent Loans and Subsequent Other
Conveyed Property.
(a) Subject to the conditions set forth in paragraph (b) below
and the terms and conditions in the related Subsequent Purchase
Agreement, in consideration of CFSC's delivery on the related
Subsequent Transfer Date to or upon the order of Seller of an amount
equal to the purchase price of the Subsequent Loans (as set forth in
the related Subsequent Purchase Agreement), Seller hereby agrees to
sell, transfer, assign, and otherwise convey to CFSC without recourse
(but without limitation of its obligations in this Agreement and the
related Subsequent Purchase Agreement), and CFSC hereby agrees to
purchase all right, title and interest of Seller in and to the
Subsequent Loans and the Subsequent Other Conveyed Property described
in the related Subsequent Purchase Agreement.
(b) the Seller shall transfer to CFSC, and CFSC shall acquire,
the Subsequent Loans and the Subsequent Other Conveyed Property to be
transferred on any Subsequent Transfer Date only upon the satisfaction
of each of the following conditions on or prior to such Subsequent
Transfer Date:
(i) the Seller shall have provided the Owner Trustee
and the Indenture Trustee with an Addition Notice at least
five Business Days prior to the Subsequent Transfer Date
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and shall have provided any information reasonably requested
by the Indenture Trustee or the Owner Trustee with respect to
the Subsequent Loans;
(ii) the Seller shall have delivered the related Loan
File for each Subsequent Loan to the Indenture Trustee or its
custodian at least two Business Days prior to the Subsequent
Transfer Date;
(iii) the Seller shall have delivered to CFSC a duly
executed Subsequent Transfer substantially in the form of
Exhibit A hereto (the "Subsequent Transfer Agreement"), which
shall include a List of Loans identifying the related
Subsequent Loans;
(iv) as of each Subsequent Transfer Date, as
evidenced by delivery of the Subsequent Transfer Agreement,
neither the Seller nor CFSC shall be insolvent nor shall they
have been made insolvent by such transfer nor shall they be
aware of any pending insolvency;
(v) such transfer shall not result in a material
adverse tax consequence to the Trust, the Noteholders or the
Certificateholders;
(vi) the Pre-Funding Period shall not have ended;
(vii) the Seller shall have delivered to CFSC an
Officer's Certificate, substantially in the form attached to
the Sale and Servicing Agreement as Exhibit P, confirming the
satisfaction of each condition precedent and the
representations specified in this Section 2.3 and in Sections
3.01, 3.02, 3.03 and 3.06 of the Sale and Servicing Agreement;
(viii) the Seller and CFSC shall have delivered to
the Trustee Opinions of Counsel addressed to S&P, ▇▇▇▇▇'▇, the
Owner Trustee and the Indenture Trustee with respect to the
transfer of the Subsequent Loans substantially in the form of
the Opinions of Counsel delivered on the Closing Date
regarding certain bankruptcy, corporate and tax matters;
(ix) Seller shall have delivered assignments in
recordable form to CFSC of the mortgages, deeds of trust and
security deeds relating to the Subsequent Loans; and
(x) each of the representations and warranties
contained in Section 3.03 of the Sale and Servicing Agreement
shall be true and correct.
(c) Seller covenants to transfer to CFSC pursuant to paragraph
(a) above Subsequent Loans with an aggregate Principal Balance
approximately equal to $285,663.73;
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provided, however, that the sole remedy of CFSC with respect to a failure of
such covenant shall be to enforce the provisions of Section 8.08 of the Sale and
Servicing Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of Seller. Seller makes the
following representations and warranties, on which CFSC relies in purchasing the
Initial Loans and the Initial Other Conveyed Property and in transferring the
Initial Loans and the Initial Other Conveyed Property to the Trust under the
Sale and Servicing Agreement. Such representations are made as of the execution
and delivery of this Agreement, but shall survive the sale, transfer and
assignment of the Initial Loans and the Initial Other Conveyed Property
hereunder and the sale, transfer and assignment thereof by CFSC to the Trust
under the Sale and Servicing Agreement and the pledge thereof by the Trust to
the Indenture Trustee under the Indenture. Seller and CFSC agree that CFSC will
assign to the Trust all of CFSC's rights under this Agreement and that the Trust
will thereafter be entitled to enforce this Agreement against Seller in the
Trust's own name.
(a) Representations Regarding Loans. The representations and
warranties set forth in Sections 3.02, 3.03, 3.04 and 3.06 of the Sale
and Servicing Agreement are true and correct.
(b) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Initial Loans and the Initial Other Conveyed
Property transferred to CFSC.
(c) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of its property or the conduct of its business
requires such qualification.
(d) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and its Related
Documents and to carry out its terms and their terms, respectively;
Seller has full power and authority to sell and assign the Initial
Loans and the Initial Other Conveyed Property to be sold and assigned
to and deposited with CFSC hereunder and has duly authorized such sale
and assignment to CFSC by all necessary corporate action; and the
execution, delivery and performance of this Agreement and Seller's
Related Documents have been duly authorized by Seller by all necessary
corporate action.
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(e) Valid Sale; Binding Obligations. This Agreement and
Seller's Related Documents have been duly executed and delivered, shall
effect a valid sale, transfer and assignment of the Initial Loans and
the Initial Other Conveyed Property, enforceable against Seller and
creditors of and purchasers from Seller; and this Agreement and
Seller's Related Documents constitute legal, valid and binding
obligations of Seller enforceable in accordance with their respective
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations
on the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(f) No Violation. The consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents
shall not conflict with, result in any breach of any of the terms and
provisions of or constitute (with or without notice, lapse of time or
both) a default under, the certificate of incorporation or bylaws of
Seller, or any indenture, agreement, mortgage, deed of trust or other
instrument to which Seller is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, other than this Agreement
and the Sale and Servicing Agreement and the Indenture, or violate any
law, order, rule or regulation applicable to Seller of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over Seller or any of
its properties.
(g) No Proceedings. There are no proceedings or investigations
pending or, to Seller's knowledge, threatened against Seller, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over Seller or its
properties (i) asserting the invalidity of this Agreement or any of the
Related Documents, (ii) seeking to prevent the issuance of the Notes or
the Certificates or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (iii)
seeking any determination or ruling that might materially and adversely
affect the performance by Seller of its obligations under, or the
validity or enforceability of, this Agreement or any of the Related
Documents or (iv) seeking to affect adversely the federal income tax or
other federal, state or local tax attributes of, or seeking to impose
any excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Initial Loans and the Initial Other Conveyed
Property hereunder or under the Sale and Servicing Agreement or pledged
under the Indenture.
(h) Chief Executive Office. The chief executive office of
Seller is located at 1100 Landmark Towers, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
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SECTION 3.2. Representations and Warranties of CFSC. CFSC makes the
following representations and warranties, on which Seller relies in selling,
assigning, transferring and conveying the Initial Loans and the Initial Other
Conveyed Property to CFSC hereunder. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Initial Loans and the Initial Other Conveyed Property
hereunder and the sale, transfer and assignment thereof by CFSC to the Trust
under the Sale and Servicing Agreement and the pledge thereof under the
Indenture.
(a) Organization and Good Standing. CFSC has been duly
organized and is validly existing and in good standing as a corporation
under the laws of the State of Minnesota, with the power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is currently conducted, and had
at all relevant times, and has, full power, authority and legal right
to acquire and own the Initial Loans and the Initial Other Conveyed
Property and to transfer the Initial Loans and the Initial Other
Conveyed Property to the Trust pursuant to the Sale and Servicing
Agreement.
(b) Due Qualification. CFSC is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions where the failure
to do so would materially and adversely affect (i) CFSC's ability to
acquire the Initial Loans or the Initial Other Conveyed Property, (ii)
the validity or enforceability of the Initial Loans and the Initial
Other Conveyed Property or (iii) CFSC's ability to perform its
obligations hereunder and under the Related Documents.
(c) Power and Authority. CFSC has the power, authority and
legal right to execute and deliver this Agreement and its Related
Documents and to carry out the terms hereof and thereof and to acquire
the Initial Loans and the Initial Other Conveyed Property hereunder;
and the execution, delivery and performance of this Agreement and its
Related Documents and all of the documents required pursuant hereto or
thereto have been duly authorized by CFSC by all necessary action.
(d) No Consent Required. CFSC is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery
or performance of this Agreement and the Related Documents, except for
such as have been obtained, effected or made.
(e) Binding Obligation. This Agreement and each of its Related
Documents constitutes a legal, valid and binding obligation of CFSC,
enforceable against CFSC in accordance with its terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation and other similar laws and
to general equitable principles.
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(f) No Violation. The execution, delivery and performance by
CFSC of this Agreement, the consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents do
not and will not conflict with, result in any breach of any of the
terms and provisions of or constitute (with or without notice or lapse
of time) a default under the articles of incorporation or bylaws of
CFSC, or conflict with or breach any of the terms or provisions of, or
constitute (with or without notice or lapse of time) a default under,
any indenture, agreement, mortgage, deed of trust or other instrument
to which CFSC is a party or by which CFSC is bound or to which any of
its properties are subject, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument
(other than the Sale and Servicing Agreement and the Indenture), or
violate any law, order, rule or regulation, applicable to CFSC or its
properties, of any federal or state regulatory body or any court,
administrative agency, or other governmental instrumentality having
jurisdiction over CFSC or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of CFSC, threatened against CFSC, before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over CFSC or its
properties: (i) asserting the invalidity of this Agreement or any of
the Related Documents, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or any of the
Related Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by CFSC of its
obligations under, or the validity or enforceability of, this Agreement
or any of the Related Documents or (iv) that may adversely affect the
federal or state income tax attributes of, or seeking to impose any
excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Initial Loans and the Initial Other Conveyed
Property hereunder or the transfer of the Initial Loans and the Initial
Other Conveyed Property to the Trust pursuant to the Sale and Servicing
Agreement or pledged under the Indenture.
In the event of any breach of a representation and warranty made by CFSC
hereunder, Seller covenants and agrees that it will not take any action to
pursue any remedy that it may have hereunder, in law, in equity or otherwise,
until a year and a day have passed since the date on which all Notes,
Certificates or other similar securities issued by the Trust, or a trust or
similar vehicle formed by CFSC, have been paid in full. Seller and CFSC agree
that damages will not be an adequate remedy for such breach and that this
covenant may be specifically enforced by CFSC or by the Owner Trustee on behalf
of the Trust.
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ARTICLE IV
COVENANTS OF THE SELLER
SECTION 4.1 Transfer of Loans.
(a) On or prior to the Closing Date, or the Subsequent
Transfer Date in the case of Subsequent Loans, Seller shall deliver the
Loan Files to CFSC as its custodian. Seller has filed a form UCC-1
financing statement regarding the sale of the Loans to CFSC, and shall
file continuation statements in respect of such UCC-1 financing
statement as if such financing statement were necessary to perfect such
sale. Seller shall take any other actions necessary to maintain the
perfection of the sale of the Loans to CFSC.
(b) If at any time during the term of this Agreement Seller
does not have a long-term senior debt rating of A- or higher from S&P
and A3 or higher from ▇▇▇▇▇'▇, (i) Seller shall within 30 days execute
and deliver to CFSC (if it has not previously done so) endorsements of
each Loan and assignments in recordable form of each mortgage, deed of
trust or security deed securing a Loan, and (ii) CFSC, at Seller's
expense, shall within 60 days file in the appropriate recording offices
the assignments to CFSC of each mortgage, deed of trust or security
deed securing a Loan; provided, however, that such execution and filing
of the assignments with respect to the Loans shall not be required if
CFSC receives written confirmation from both S&P and ▇▇▇▇▇'▇ that the
ratings of the Notes and Certificates would not be reduced or withdrawn
by the failure to execute and file such assignments; provided, however,
that such execution and filing shall not be required if Seller delivers
an Opinion of Counsel to the effect that such assignment and
recordation is not necessary to effect the assignment to CFSC of
Seller's lien on the real property securing each Loan.
(c) If, as of the Post-Funding Payment Date, the aggregate
Scheduled Principal Balance of Loans secured by real property located
in Maryland ("Maryland Loans") exceeds 10% of the Pool Scheduled
Principal Balance, the Seller shall, within sixty (60) days, submit to
the appropriate recording offices the assignments to CFSC on behalf of
the Trust of the number of mortgages, deeds of trust or security deeds
required to reduce to less than 10% of the Pool Scheduled Principal
Balance the aggregate Scheduled Principal Balance of Maryland Loans as
to which such assignments are not recorded. In the event that the
Seller does not comply with the requirements of the preceding sentence,
the Seller shall repurchase enough of such Maryland Loans until the
aggregate Scheduled Principal Balance of the Maryland Loans is less
than 10% of the Pool Scheduled Principal Balance.
SECTION 4.2. Costs and Expenses. The Seller shall pay all reasonable
costs and disbursements in connection with the performance of its obligations
hereunder and under each Subsequent Purchase Agreement and its Related
Documents.
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SECTION 4.3. Indemnification.
(a) Seller will defend and indemnify CFSC against any and all
costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel and expenses of litigation
arising out of or resulting from the use or ownership of any real
estate related to a Loan by Seller or the Servicer or any Affiliate of
either. Notwithstanding any other provision of this Agreement, the
obligation of Seller under this Section shall not terminate upon a
Service Transfer pursuant to Article VII of the Sale and Servicing
Agreement, except that the obligation of Seller under this Section 4.3
shall not relate to the actions of any subsequent Servicer after a
Service Transfer.
(b) No obligation or liability to any Obligor under any of the
Loans is intended to be assumed by CFSC under or as a result of this
Agreement and the transactions contemplated hereby and, to the maximum
extent permitted and valid under mandatory provisions of law, CFSC
expressly disclaims such assumption.
(c) Seller agrees to pay, and to indemnify, defend and hold
harmless CFSC from, any taxes which may at any time be asserted with
respect to, and as of the date of, the transfer of the Loans to CFSC,
including, without limitation, any sales, gross receipts, general
corporation, personal property, privilege or license taxes and costs,
expenses and reasonable counsel fees in defending against the same,
whether arising by reason of the acts to be performed by Seller under
this Agreement or imposed against CFSC.
(d) Indemnification under this Section 4.3 shall include,
without limitation, reasonable fees and expenses of counsel and
expenses of litigation. If the Originator has made any indemnity
payments to CFSC pursuant to this Section 4.3 and CFSC thereafter
collects any of such amounts from others, CFSC will repay such amounts
collected to Seller, as the case may be, without interest.
ARTICLE V
REPURCHASES
SECTION 5.1. Repurchase of Loans Upon Breach of Warranty.
(a) Upon the occurrence of a Repurchase Event Seller shall,
unless such breach shall have been cured in all material respects,
repurchase such Loan from the Trust pursuant to Section 3.05 of the
Sale and Servicing Agreement. It is understood and agreed that the
obligation of Seller to repurchase any Loan as to which a breach has
occurred and is continuing and the indemnity obligations relating
thereto shall, if such obligation is fulfilled, constitute the only
remedies against Seller for such breach available to CFSC, the
Noteholders, the Indenture Trustee on behalf of the Noteholders, the
Certificateholders or the Owner Trustee on behalf of the
Certificateholders. The provisions of this Section 5.1 are intended to
grant the Owner Trustee and the Indenture Trustee a direct right
against Seller to demand performance
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hereunder, and in connection therewith, Seller waives any requirement
of prior demand against CFSC with respect to such repurchase
obligation. Any such purchase shall take place in the manner specified
in Section 3.06 of the Sale and Servicing Agreement. Notwithstanding
any other provision of this Agreement, any Subsequent Purchase
Agreement or the Sale and Servicing Agreement or any Subsequent
Transfer Agreement to the contrary, the obligation of Seller under this
Section shall not terminate upon a termination of Seller as Servicer
under the Sale and Servicing Agreement and shall be performed in
accordance with the terms hereof notwithstanding the failure of the
Servicer or CFSC to perform any of their respective obligations with
respect to such Loan under the Sale and Servicing Agreement.
(b) In addition to the foregoing and notwithstanding whether
the related Loan shall have been purchased by Seller, Seller shall
indemnify the Owner Trustee, the Trust, the Indenture Trustee, the
Noteholders and the Certificateholders against all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel, which may be asserted against or incurred by any
of them as a result of third party claims arising out of the events or
facts giving rise to such Repurchase Events.
SECTION 5.2. Reassignment of Purchased Loans. Upon deposit of the
Repurchase Price of any Loan repurchased or replaced by Seller under Section
5.1, CFSC shall cause the Owner Trustee and the Indenture Trustee to take such
steps as may be reasonably requested by Seller in order to assign to Seller all
of CFSC's and the Trust's right, title and interest in and to such Loan and all
security and documents and all Other Conveyed Property conveyed to CFSC and the
Trust directly relating thereto, without recourse, representation or warranty,
except as to the absence of liens, charges or encumbrances created by or arising
as a result of actions of CFSC, the Owner Trustee or the Indenture Trustee. Such
assignment shall be a sale and assignment outright, and not for security. If,
following the reassignment of a Loan, in any enforcement suit or legal
proceeding, it is held that Seller may not enforce any such Loan on the ground
that it shall not be a real party in interest or a holder entitled to enforce
the Loan, CFSC and the Owner Trustee shall, at the expense of Seller, take such
steps as Seller deems reasonably necessary to enforce the Loan, including
bringing suit in CFSC's or the Owner Trustee's name.
SECTION 5.3. Waivers. No failure or delay on the part of CFSC, or the
Owner Trustee as assignee of CFSC, in exercising any power, right or remedy
under this Agreement or under any Subsequent Purchase Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or future exercise thereof or the exercise of
any other power, right or remedy.
-12-
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Liability of Seller. Seller shall be liable in accordance
herewith only to the extent of the obligations in this Agreement or in any
Subsequent Purchase Agreement specifically undertaken by Seller and the
representations and warranties of Seller.
SECTION 6.2. Merger or Consolidation of Seller or CFSC. Any corporation
or other entity (i) into which Seller or CFSC may be merged or consolidated,
(ii) resulting from any merger or consolidation to which Seller or CFSC is a
party or (iii) succeeding to the business of Seller or CFSC, in the case of
CFSC, which corporation has a certificate of incorporation containing provisions
relating to limitations on business and other matters substantively identical to
those contained in CFSC's certificate of incorporation, provided that in any of
the foregoing cases such corporation shall execute an agreement of assumption to
perform every obligation of Seller or CFSC, as the case may be, under this
Agreement and each Subsequent Purchase Agreement and, whether or not such
assumption agreement is executed, shall be the successor to Seller or CFSC, as
the case may be, hereunder and under each such Subsequent Purchase Agreement
(without relieving Seller or CFSC of its responsibilities hereunder, if it
survives such merger or consolidation) without the execution or filing of any
document or any further act by any of the parties to this Agreement or each
Subsequent Purchase Agreement. Seller or CFSC shall promptly inform the other
party and the Owner Trustee and the Indenture Trustee of such merger,
consolidation or purchase and assumption. Notwithstanding the foregoing, as a
condition to the consummation of the transactions referred to in clauses (i),
(ii) and (iii) above, (x) immediately after giving effect to such transaction,
no representation or warranty made pursuant to Sections 3.1 and 3.2 and this
Agreement, or similar representation or warranty made in any Subsequent Purchase
Agreement, shall have been breached (for purposes hereof, such representations
and warranties shall speak as of the date of the consummation of such
transaction), (y) Seller or CFSC, as applicable, shall have delivered written
notice of such consolidation, merger or purchase and assumption to the Rating
Agencies prior to the consummation of such transaction and shall have delivered
to the Owner Trustee and the Indenture Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such consolidation, merger or succession
and such agreement of assumption comply with this Section 6.3 and that all
conditions precedent, if any, provided for in this Agreement, or in each
Subsequent Purchase Agreement, relating to such transaction have been complied
with, and (z) Seller or CFSC, as applicable, shall have delivered to the Owner
Trustee and the Indenture Trustee an Opinion of Counsel, stating that, in the
opinion of such counsel, either (A) all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary to preserve and protect the interest of the Owner Trustee and the
Indenture Trustee in the Trust Property and reciting the details of the filings
or (B) no such action shall be necessary to preserve and protect such interest.
SECTION 6.3. Limitation on Liability of Seller and Others. Seller shall
not be under any obligation to appear in, prosecute or defend any legal action
that is not incidental to its
-13-
obligations under this Agreement, any Subsequent Purchase Agreement or its
Related Documents and that in its opinion may involve it in any expense or
liability.
SECTION 6.4. Amendment.
(a) This Agreement and any Subsequent Purchase Agreement may
be amended by Seller and CFSC and without the consent of the Owner
Trustee, the Indenture Trustee, or any of the Noteholders or
Certificateholders (A) to cure any ambiguity or (B) to correct any
provisions in this Agreement or any such Subsequent Purchase Agreement;
provided, however, that such action shall not, as evidenced by an
Opinion of Counsel delivered to the Owner Trustee and the Indenture
Trustee, adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time by
Seller and CFSC, with the prior written consent of the Owner Trustee,
the Indenture Trustee and the Holders of Securities representing, in
the aggregate, 66 2/3% or more of the Aggregate Securities Principal
Balance, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the Noteholders or
Certificateholders; provided, however, that no such amendment shall (i)
increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on the Loans or, distributions
that are required to be made on any Note or Certificate or (ii) reduce
the aforesaid percentage required to consent to any such amendment or
any waiver hereunder, without the consent of the Holders of all Notes
and Certificates then outstanding.
(c) Concurrently with the solicitation of any consent pursuant
to this Section 6.4, CFSC shall furnish written notification to S&P and
▇▇▇▇▇'▇. Promptly after the execution of any amendment or consent
pursuant to this Section 6.4, CFSC shall furnish written notification
of the substance of such amendment to S&P, ▇▇▇▇▇'▇, each Noteholder and
Certificateholder.
(d) It shall not be necessary for the consent of Noteholders
and Certificateholders pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization
of the execution thereof by Noteholders and Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee or
Indenture Trustee, as applicable, may prescribe, including the
establishment of record dates. The consent of any Holder of a Note or a
Certificate given pursuant to this Section or pursuant to any other
provision of this Agreement shall be conclusive and binding on such
Holder and on all future Holders of such Note or Certificate and of any
Note or Certificate issued upon the transfer thereof or in exchange
thereof or in lieu thereof whether or not notation of such consent is
made upon the Note or Certificate.
-14-
SECTION 6.5. Notices. All demands, notices and communications to the
Seller or CFSC hereunder shall be in writing, personally delivered, or sent by
telecopier (subsequently confirmed in writing), reputable overnight courier or
mailed by certified mail, return receipt requested, and shall be deemed to have
been given upon receipt (a) in the case of Seller, to Conseco Finance Corp.,
1100 Landmark Towers, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Chief Financial Officer, or such other address as shall be designated
by Seller in a written notice delivered to the other party or to the Owner
Trustee or Indenture Trustee, as applicable, or (b) in case of CFSC, to Conseco
Finance Securitizations Corp., 1100 Landmark Towers, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Chief Financial Officer.
SECTION 6.6. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and the Related Documents set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and the
Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 6.7. Severability of Provisions. If any one or more of the
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.8. Intention of the Parties. The execution and delivery of
this Agreement and of each Subsequent Purchase Agreement shall constitute an
acknowledgment by Seller and CFSC that they intend that each assignment and
transfer herein and therein contemplated constitute a sale and assignment
outright, and not for security, of the Initial Loans and the Initial Other
Conveyed Property and the Subsequent Loans and Subsequent Other Conveyed
Property, as the case may be, conveying good title thereto free and clear of any
Liens, from Seller to CFSC, and that the Initial Loans and the Initial Other
Conveyed Property and the Subsequent Loans and Subsequent Other Conveyed
Property shall not be a part of Seller's estate in the event of the bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, or the
occurrence of another similar event, of, or with respect to, Seller. In the
event that such conveyance is determined to be made as security for a loan made
by CFSC, the Trust or the Certificateholders to Seller, the parties intend that
Seller shall have granted to CFSC a security interest in all of Seller's right,
title and interest in and to the Initial Loans and the Initial Other Conveyed
Property and the Subsequent Loans and Subsequent Other Conveyed Property, as the
case may be, conveyed pursuant to Section 2.1 hereof or pursuant to any
Subsequent Purchase Agreement, and that this Agreement and each Subsequent
Purchase Agreement shall constitute a security agreement under applicable law.
-15-
SECTION 6.9. Governing Law. This Agreement shall be construed in
accordance with, the laws of the State of Minnesota without regard to the
principles of conflicts of laws thereof, and the obligations, rights and
remedies of the parties under this Agreement shall be determined in accordance
with such laws.
SECTION 6.10. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 6.11. Conveyance of the Initial Loans and the Initial Other
Conveyed Property to the Trust. Seller acknowledges that CFSC intends, pursuant
to the Sale and Servicing Agreement, to convey the Initial Loans and the Initial
Other Conveyed Property, together with its rights under this Agreement, to the
Trust on the date hereof. Seller acknowledges and consents to such conveyance
and waives any further notice thereof and covenants and agrees that the
representations and warranties of Seller contained in this Agreement and the
rights of CFSC hereunder are intended to benefit the Owner Trustee, the Trust,
the Indenture Trustee and the Noteholders and Certificateholders. In furtherance
of the foregoing, Seller covenants and agrees to perform its duties and
obligations hereunder, in accordance with the terms hereof for the benefit of
the Owner Trustee, the Trust, the Indenture Trustee and the Noteholders and
Certificateholders and that, notwithstanding anything to the contrary in this
Agreement, Seller shall be directly liable to the Indenture Trustee, Owner
Trustee and the Trust (notwithstanding any failure by the Servicer or CFSC to
perform its duties and obligations hereunder or under the Sale and Servicing
Agreement) and that the Owner Trustee or the Indenture Trustee may enforce the
duties and obligations of Seller under this Agreement against Seller for the
benefit of the Trust, the Noteholders and the Certificateholders.
SECTION 6.12. Nonpetition Covenant. Neither CFSC nor Seller shall
petition or otherwise invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Trust (or, in the
case of Seller, against CFSC) under any federal or state bankruptcy, insolvency
or similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Trust (or CFSC) or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Trust (or CFSC).
-16-
IN WITNESS WHEREOF, the parties have caused this Transfer Agreement to
be duly executed by their respective officers as of the day and year first above
written.
CONSECO FINANCE SECURITIZATIONS CORP.,
as Purchaser
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Assistant
Treasurer
CONSECO FINANCE CORP., as Seller
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Assistant
Treasurer
-17-
SCHEDULE A
SCHEDULE OF INITIAL LOANS
[Included as Exhibit L-1 to Sale and Servicing Agreement]
A-1
EXHIBIT A
FORM OF
SUBSEQUENT TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
CONSECO FINANCE CORP.
Seller
dated as of
________, 1999
Ex. 1 Pg. 2
SUBSEQUENT TRANSFER AGREEMENT, dated as of ________, 1999, between
Conseco Finance Securitizations Corp., a Minnesota corporation, as purchaser
("CFSC"), and Conseco Finance Corp., a Delaware corporation, as seller
("Seller").
W I T N E S S E T H:
WHEREAS, Seller and CFSC are parties to a Transfer Agreement, dated as
of September 1, 1999 (as amended or supplemented, the "Transfer Agreement");
WHEREAS, pursuant to the Transfer Agreement and this Agreement, CFSC
has agreed to purchase from Seller and Seller is transferring to CFSC the
Subsequent Loans and the Subsequent Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, CFSC and Seller, intending to be legally
bound, hereby agree as follows:
1. Defined Terms. Capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned to such terms in the Transfer
Agreement.
"Schedule of Subsequent Loans" means the schedule of all home
improvement and home equity loans sold and transferred pursuant to this
Agreement attached hereto as Schedule A, which Schedule of Subsequent Loans
shall supplement the Schedule of Initial Loans attached to the Transfer
Agreement.
"Subsequent Cutoff Date" shall mean, with respect to the Subsequent
Loans conveyed hereby, _________________, 1999.
"Subsequent Other Conveyed Property" means, for the purposes of this
Agreement, all monies at any time paid or payable on the Subsequent Loans
conveyed hereby or in respect thereof after the Subsequent Cutoff Date
(including amounts due on or before the Subsequent Cutoff Date but received by
Seller after the Subsequent Cutoff Date), an assignment of security interests in
the related real estate and any and all other documents or electronic records
that Seller keeps on file in accordance with its customary procedures relating
to the Subsequent Loans, the Obligors or the related real estate, property
(including the right to receive future Liquidation Proceeds) that secures a
Subsequent Loan and that has been acquired by or on behalf of the Trust pursuant
to liquidation of such Subsequent Loan, and all proceeds of the foregoing.
"Subsequent Loans" means, for purposes of this Agreement, the Loans
listed in the Schedule of Subsequent Loans.
Ex. A-1
2. Conveyance of the Subsequent Loans and the Subsequent Other Conveyed
Property. Subject to the terms and conditions of this Agreement and the Transfer
Agreement, Seller hereby sells, transfer, assigns, and otherwise conveys to CFSC
without recourse (but without limitation of its repurchase, indemnity and other
obligations in this Agreement and the Transfer Agreement), and CFSC hereby
purchases, all right, title and interest of Seller in and to the Subsequent
Loans and the Subsequent Other Conveyed Property. It is the intention of Seller
and CFSC that the transfer and assignment contemplated by this Agreement shall
constitute a sale of the Subsequent Loans and the Subsequent Other Conveyed
Property from Seller to CFSC, conveying good title thereto free and clear of any
Liens, and the Subsequent Loans and the Subsequent Other Conveyed Property shall
not be part of Seller's estate in the event of the filing of a bankruptcy
petition by or against Seller under any bankruptcy or similar law.
3. Purchase Price. Simultaneously with the conveyance of the Subsequent
Loans and the Subsequent Other Conveyed Property to CFSC, CFSC has paid or
caused to be paid to or upon the order of Seller, by wire transfer of
immediately available funds (representing certain proceeds to CFSC from the sale
of the Securities on deposit in the Pre-Funding Account), the amount of funds as
specified below:
(i) Principal Balance of Subsequent Loans: $__________
(i) Proceeds to Seller: $_____________
4. Representations of Warranties of Seller. Seller makes the following
representations and warranties, on which CFSC relies in purchasing the
Subsequent Loans and the Subsequent Other Conveyed Property and in transferring
the Subsequent Loans and the Subsequent Other Conveyed Property to the Trust
under the Subsequent Transfer Agreement. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Subsequent Loans and the Subsequent Other Conveyed
Property hereunder, and the sale, transfer and assignment thereof by CFSC to the
Trust under the Subsequent Transfer Agreement and the pledge thereof pursuant to
the Indenture. Seller and CFSC agree that CFSC will assign to the Trust all of
CFSC's rights under this Agreement and the Transfer Agreements, and that the
Trust will thereafter be entitled to enforce this Agreement and the Transfer
Agreements against Seller in the Trust's own name.
(a) Schedule of Representations. The representations and
warranties set forth in Sections 3.02, 3.03 and 3.04 of the Sale and
Servicing Agreement are true and correct.
(b) Organization and Good Standing. Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Subsequent Loans and the Subsequent Other
Conveyed Property transferred to CFSC.
Ex. A-2
(c) Due Qualification. Seller is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of its property or the conduct of its business
requires such qualification.
(d) Power and Authority. Seller has the power and authority to
execute and deliver this Agreement and the Transfer Agreement and to
carry out its terms and their terms, respectively; Seller has full
power and authority to sell and assign the Subsequent Loans and the
Subsequent Other Conveyed Property to be sold and assigned to and
deposited with CFSC hereunder and has duly authorized such sale and
assignment to CFSC by all necessary corporate action; and the
execution, delivery and performance of this Agreement and the Transfer
Agreement have been duly authorized by Seller by all necessary
corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and the
Transfer Agreement have been duly executed and delivered, shall effect
a valid sale, transfer and assignment of the Subsequent Loans and the
Subsequent Other Conveyed Property, enforceable against Seller and
creditors of and purchasers from Seller; and this Agreement and the
Transfer Agreement constitute legal, valid and binding obligations of
Seller enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(f) No Violation. The consummation of the transactions
contemplated by this Agreement and the Transfer Agreement and the
fulfillment of the terms of this Agreement and the Transfer Agreement
shall not conflict with, result in any breach of any of the terms and
provisions of or constitute (with or without notice, lapse of time or
both) a default under, the certificate of incorporation or bylaws of
Seller, or any indenture, agreement, mortgage, deed of trust or other
instrument to which Seller is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, other than this Agreement
and the Transfer Agreement, or violate any law, order, rule or
regulation applicable to Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over Seller or any of its
properties.
(g) No Proceedings. There are no proceedings or investigations
pending or, to Seller's knowledge, threatened against Seller, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over Seller or its
properties (i) asserting the invalidity of this Agreement or the
Transfer Agreement, (ii) seeking to prevent or the consummation of any
of the
Ex. A-3
transactions contemplated by this Agreement or the Transfer Agreement,
(iii) seeking any determination or ruling that might materially and
adversely affect the performance by Seller of its obligations under, or
the validity or enforceability of, this Agreement or the Subsequent
Transfer Agreement, or (iv) seeking to affect adversely the federal
income tax or other federal, state or local tax attributes of, or
seeking to impose any excise, franchise, transfer or similar tax upon,
the transfer and acquisition of the Subsequent Loans and the Subsequent
Other Conveyed Property hereunder or under the Transfer Agreement.
(h) Insolvency. As of the Subsequent Cutoff Date and the
Subsequent Transfer Date, neither Seller nor CFSC is insolvent nor will
either of them have been made insolvent after giving effect to the
conveyance set forth in Section 2 of this Agreement, nor are any of
them aware of any pending insolvency.
(i) Chief Executive Office. The chief executive office of
Seller is located at 1100 Landmark Towers, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
5. Representations and Warranties of CFSC. CFSC makes the following
representations and warranties, on which Seller relies in selling, assigning,
transferring and conveying the Subsequent Loans and the Subsequent Other
Conveyed Property to CFSC hereunder. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Subsequent Loans and the Subsequent Other Conveyed
Property hereunder and the sale, transfer and assignment thereof by CFSC to the
Trust under the Subsequent Transfer Agreement and the pledge thereof under the
Indenture.
(a) Organization and Good Standing. CFSC has been duly
organized and is validly existing and in good standing as a corporation
under the laws of the State of Minnesota, with the power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is currently conducted, and had
at all relevant times, and has, full power, authority and legal right
to acquire and own the Subsequent Loans and the Subsequent Other
Conveyed Property, and to transfer the Subsequent Loans and the
Subsequent Other Conveyed Property to the Trust pursuant to this
Transfer Agreement and the pledge thereof under the Indenture.
(b) Due Qualification. CFSC is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions where the failure
to do so would materially and adversely affect CFSC's ability to
acquire the Subsequent Loans or the Subsequent Other Conveyed Property
or the validity or enforceability of the Subsequent Loans and the
Subsequent Other Conveyed Property or to perform CFSC's obligations
hereunder and under the Transfer Agreement.
(c) Power and Authority. CFSC has the power, authority and
legal right to execute and deliver this Agreement and to carry out the
terms hereof and to acquire the
Ex. A-4
Subsequent Loans and the Subsequent Other Conveyed Property hereunder;
and the execution, delivery and performance of this Agreement and all
of the documents required pursuant hereto have been duly authorized by
CFSC by all necessary action.
(d) No Consent Required. CFSC is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery
or performance of this Agreement and the Transfer Agreement, except for
such as have been obtained, effected or made.
(e) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of CFSC, enforceable against CFSC in
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws and to general equitable principles.
(f) No Violation. The execution, delivery and performance by
CFSC of this Agreement, the consummation of the transactions
contemplated by this Agreement and the Transfer Agreement and the
fulfillment of the terms of this Agreement and the Transfer Agreement
do not and will not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or lapse
of time) a default under, the articles of incorporation or bylaws of
CFSC, or conflict with or breach any of the terms or provisions of, or
constitute (with or without notice or lapse of time) a default under,
any indenture, agreement, mortgage, deed of trust or other instrument
to which CFSC is a party or by which CFSC is bound or to which any of
its properties are subject, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument
(other than the Sale and Servicing Agreement, this Agreement, the
Transfer Agreement and the Indenture), or violate any law, order, rule
or regulation, applicable to CFSC or its properties, of any federal or
state regulatory body, any court, administrative agency, or other
governmental instrumentality having jurisdiction over CFSC or any of
its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of CFSC, threatened against CFSC, before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over CFSC or its
properties: (i) asserting the invalidity of this Agreement or the
Transfer Agreement, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or the Transfer
Agreement, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by CFSC of its
obligations under, or the validity or enforceability of, this Agreement
or the Transfer Agreement, or (iv) that may adversely affect the
federal or state income tax attributes of, or seeking to impose any
excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Subsequent Loans and the Subsequent Other Conveyed
Ex. A-5
Property hereunder or the transfer of the Loans and the Subsequent
Other Conveyed Property to the Trust pursuant to the Transfer
Agreement.
In the event of any breach of a representation and warranty made by CFSC
hereunder, Seller covenants and agrees that it will not take any action to
pursue any remedy that it may have hereunder, in law, in equity or otherwise,
until a year and a day have passed since the date on which all pass-through
certificates or other similar securities issued by the Trust, or a trust or
similar vehicle formed by CFSC, have been paid in full. Seller and CFSC agree
that damages will not be an adequate remedy for such breach and that this
covenant may be specifically enforced by CFSC or by the Owner Trustee on behalf
of the Trust.
6. Conditions Precedent. The obligation of CFSC to acquire the
Subsequent Loans and the Subsequent Other Conveyed Property hereunder is subject
to the satisfaction, on or prior to the Subsequent Transfer Date, of the
following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Seller in Section 4 of this
Agreement and in Section 3.1 of the Transfer Agreement shall be true
and correct as of the date of this Agreement and as of the Subsequent
Transfer Date.
(b) Transfer Agreement Conditions. Each of the conditions set
forth in Section 2.3(b) of the Transfer Agreement applicable to the
conveyance of Subsequent Loans and the Subsequent Other Conveyed
Property shall have been satisfied.
(c) Sale and Servicing Agreement Representations and
Warranties. Each of the representations and warranties contained in
Section 3.03 of the Sale and Servicing Agreement shall be true and
correct.
(d) Additional Information. Seller shall have delivered to
CFSC such information as was reasonably requested by CFSC to satisfy
itself as to (i) the accuracy of the representations and warranties set
forth in Section 4 of this Agreement and in Section 3.1 of the Transfer
Agreement and (ii) the satisfaction of the conditions set forth in this
Section 6.
7. Ratification of Transfer Agreement. As supplemented by this
Agreement, the Transfer Agreement is in all respects ratified and confirmed and
the Transfer Agreement as so supplemented by this Agreement shall be read, taken
and construed as one and the same instrument.
8. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Minnesota 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.
Ex. A-6
9. Counterparts. For the purposes of facilitating the execution of this
Agreement and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and all of which counterparts shall constitute but one and the same
instrument.
10. Conveyance of the Subsequent Loans and the Subsequent Other
Conveyed Property to the Trust. Seller acknowledges that CFSC intends, pursuant
to a Subsequent Transfer Agreement, to convey the Subsequent Loans and the
Subsequent Other Conveyed Property, together with its rights under this
Agreement and under the Transfer Agreement, to the Trust on the date hereof, and
the Owner Trust intends to pledge the same to the Indenture Trustee for the
benefit of the Noteholders pursuant to the Indenture. Seller acknowledges and
consents to such conveyance and waives any further notice thereof and covenants
and agrees that the representations and warranties of Seller contained in this
Agreement and the rights of CFSC hereunder and thereunder are intended to
benefit the Owner Trustee, the Trust, the Indenture Trustee and the Noteholders
and Certificateholders. In furtherance of the foregoing, Seller covenants and
agrees to perform its duties and obligations hereunder and under the Transfer
Agreement, in accordance with the terms hereof and thereof for the benefit of
the Owner Trustee, the Trust, the Indenture Trustee and the Noteholders and
Certificateholders and that, notwithstanding anything to the contrary in this
Agreement or in the Transfer Agreement, Seller shall be directly liable to the
Indenture Trustee, the Owner Trustee and the Trust (notwithstanding any failure
by CFSC to perform its duties and obligations hereunder or under the Sale and
Servicing Agreement or the Subsequent Transfer Agreement) and that the Indenture
Trustee, the or the Owner Trustee may enforce the duties and obligations of
Seller under this Agreement and the Transfer Agreement against Seller for the
benefit of the Trust, the Noteholders and the Certificateholders.
Ex. A-7
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
CONSECO FINANCE SECURITIZATIONS CORP.,
as Purchaser
By _______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President and Treasurer
CONSECO FINANCE CORP., as Seller
By _______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President and Treasurer
Ex. A-8