EXHIBIT 4.5
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CONSECO FINANCE HOME LOAN TRUST 1999-G
ADMINISTRATION AGREEMENT
among
CONSECO FINANCE HOME LOAN TRUST 1999-G
as Issuer
and
CONSECO FINANCE SERVICING CORP.
as Administrator
and
U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as Indenture Trustee
Dated as of September 1, 1999
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This ADMINISTRATION AGREEMENT dated as of September 1, 1999 (this
"Agreement"), among Conseco Finance Home Loan Trust 1999-G, a Delaware business
trust (the "Issuer"), Conseco Finance Servicing Corp., a Delaware corporation,
as administrator (the "Administrator"), and U.S. Bank Trust National
Association, a national banking association, not in its individual capacity but
solely as Indenture Trustee (the "Indenture Trustee").
WITNESSETH:
WHEREAS, the Issuer is issuing eight classes of Notes (collectively,
the "Notes"), pursuant to the Indenture dated as of September 1, 1999 (as
amended and supplemented from time to time, the "Indenture"), between the Issuer
and the Indenture Trustee, and the Issuer is issuing three classes of
Certificates (the "Certificates") pursuant to the Trust Agreement, dated as of
September 1, 1999 (as amended and supplemented from time to time, the "Trust
Agreement"), between Wilmington Trust Company, as owner trustee (the "Owner
Trustee") and Conseco Finance Securitizations Corp., as depositor (capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
such terms in the Trust Agreement or the Indenture);
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and the Certificates including: (i) the Trust
Agreement, (ii) a Sale and Servicing Agreement dated as of September 1, 1999 (as
amended and supplemented from time to time, the "Sale and Servicing Agreement"),
among the Issuer, Conseco Finance Corp., a Delaware corporation, as originator
(in such capacity, the "Originator"), guarantor (in such capacity, the
"Guarantor") and servicer (in such capacity, the "Servicer") and Conseco Finance
Securitizations Corp., as seller (in such capacity, the "Seller"), (iii) a
Letter of Representations dated November 16, 1999 (as amended and supplemented
from time to time, the "Note Depository Agreement"), among the Issuer, the
Indenture Trustee, the Administrator and The Depository Trust Company ("DTC")
relating to the Notes; (iv) a Letter of Representations dated November 16, 1999
(as amended and supplemented from time to time, the "Certificate Depository
Agreement"), among the Issuer, the Owner Trustee, the Administrator and DTC; and
(v) the Indenture (the Trust Agreement, the Sale and Servicing Agreement, the
Note Depository Agreement, the Certificate Depository Agreement and the
Indenture being referred to hereinafter collectively as the "Related
Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (a) the Notes
and the collateral therefor pledged pursuant to the Indenture (the "Collateral")
and (b) the Certificates (the registered holders of such interests being
referred to herein as the "Owners");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator.
(a) Duties with Respect to the Note Depository Agreement, the
Certificate Depository Agreement and the Indenture.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under
the Note Depository Agreement. In addition, the Administrator shall
consult with the Owner Trustee regarding the duties of the Issuer or
the Owner Trustee under the Indenture, the Note Depository Agreement
and the Certificate Depository Agreement. The Administrator shall
monitor the performance of the Issuer and shall advise the Owner
Trustee when action is necessary to comply with the Issuer's or the
Owner Trustee's duties under the Indenture, the Note Depository
Agreement and the Certificate Depository Agreement. The Administrator
shall prepare for execution by the Issuer, or shall cause the
preparation by other appropriate persons of, all such documents,
reports, filings, instruments, certificates and opinions that shall be
the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to the Indenture, the Note Depository Agreement and the
Certificate Depository Agreement. In furtherance of the foregoing, the
Administrator shall take all appropriate action that is the duty of the
Issuer or the Owner Trustee to take pursuant to the Indenture
including, without limitation, such of the foregoing as are required
with respect to the following matters under the Indenture (references
are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept
and to give the Indenture Trustee notice of any appointment of
a new Note Registrar and the location, or change in location,
of the Note Register (Section 2.04);
(B) the notification of Noteholders of the final
principal payment on their Notes (Section 2.07(b));
(C) the preparation of or obtaining of the documents
and instruments required for authentication of the Notes and
delivery of the same to the Indenture Trustee (Section 2.02);
(D) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of collateral (Section 4.04);
(E) the duty to cause newly appointed Paying Agents,
if any, to deliver to the Indenture Trustee the instrument
specified in the Indenture regarding funds held in trust
(Section 3.03);
(F) the direction to the Indenture Trustee to deposit
moneys with Paying Agents, if any, other than the Indenture
Trustee (Section 3.03);
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(G) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which
such qualification is or shall be necessary to protect the
validity and enforceability of the Indenture, the Notes, the
Indenture Collateral and each other instrument and agreement
included in the Trust Estate (Section 3.04);
(H) the preparation of all supplements and amendments
to the Indenture and all financing statements, continuation
statements, instruments of further assurance and other
instruments and the taking of such other action as is
necessary or advisable to protect the Trust Estate (Section
3.05);
(I) the delivery of the Opinion of Counsel on the
Closing Date and the annual delivery of Opinions of Counsel as
to the Trust Estate, and the annual delivery of the Officer's
Certificate and certain other statements as to compliance with
the Indenture (Sections 3.06 and 3.09);
(J) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has
contracted to perform its duties under the Indenture (Section
3.07(b));
(K) the notification of the Indenture Trustee and the
Rating Agencies of an Event of Termination under the Sale and
Servicing Agreement and, if such an Event of Termination
arises from the failure of the Servicer to perform any of its
duties under the Sale and Servicing Agreement with respect to
the Loans, the taking of all reasonable steps available to
remedy such failure (Sections 3.07(d));
(L) the duty to cause the Servicer to fulfill its
obligations under the Sale and Servicing Agreement (Section
3.14);
(M) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its
obligations under the Indenture (Section 3.11(b));
(N) the delivery of written notice to the Indenture
Trustee and the Rating Agencies of each Event of Default under
the Indenture and each default by the Servicer or the Seller
under the Sale and Servicing Agreement (Section 3.18);
(O) the monitoring of the Issuer's obligations as to
the satisfaction and discharge of the Indenture and the
preparation of an Officer's Certificate and the obtaining of
the Opinion of Counsel and (if required) the Independent
Certificate relating thereto (Section 4.01);
(P) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Trust Estate
in a commercially reasonable manner if an Event of Default
shall have occurred and be continuing (Section 5.04);
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(Q) the preparation and delivery of notice to
Noteholders of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section 6.08);
(R) the preparation of any written instruments
required to confirm more fully the authority of any co-trustee
or separate trustee and any written instruments necessary in
connection with the resignation or removal of any co-trustee
or separate trustee (Section 6.08 and 6.10);
(S) the furnishing of the Indenture Trustee with the
names and addresses of Noteholders during any period when the
Indenture Trustee is not the Note Registrar (Section 7.01);
(T) the preparation and, after execution by the
Issuer, the filing with the Commission, any applicable state
agencies and the Indenture Trustee of documents required to be
filed on a periodic basis with, and summaries thereof as may
be required by rules and regulations prescribed by, the
Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the
Noteholders (Section 7.03);
(U) the opening of one or more accounts in the
Issuer's name, the preparation and delivery of Issuer Orders,
Officer's Certificates and Opinions of Counsel and all other
actions necessary with respect to investment and reinvestment
of funds in the Trust Accounts (Section 8.02 and 8.03);
(V) the preparation of Issuer Orders and the
obtaining of Opinions of Counsel with respect to the execution
of supplemental indentures and the mailing to the Noteholders
of notices with respect to such supplemental indentures
(Sections 9.01, 9.02 and 9.03);
(W) the execution and delivery of new Notes
conforming to any supplemental Indenture (Section 9.06);
(X) the duty to notify Noteholders of redemption of
the Notes or to cause the Indenture Trustee to provide such
notification (Section 10.02);
(Y) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates
with respect to any requests by the Issuer to the Indenture
Trustee to take any action under the Indenture (Section
11.01(a));
(Z) the preparation and delivery of Officer's
Certificates and the obtaining of Independent Certificates, if
necessary, for the release of property from the lien of the
Indenture (Section 11.01(b));
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(AA) the notification of the Rating Agencies, upon
the failure of the Indenture Trustee to give such
notification, of the information required pursuant to Section
11.04 of the Indenture (Section 11.04);
(AB) the preparation and delivery to Noteholders and
the Indenture Trustee of any agreements with respect to
alternate payment and notice provisions (Section 11.06);
(AC) the recording of the Indenture, if applicable
(Section 11.15); and
(AD) the preparation of Definitive Notes in
accordance with the Instructions of the Depository (Section
2.11).
(ii) The Administrator will:
(A) pay the Indenture Trustee (and any separate
trustee or co-trustee appointed pursuant to Section 6.10 of
the Indenture (a "Separate Trustee")) from time to time
reasonable compensation for all services rendered by the
Indenture Trustee or Separate Trustee, as the case may be,
under the Indenture (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(B) except as otherwise expressly provided in the
Indenture, reimburse the Indenture Trustee or any Separate
Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Indenture
Trustee or Separate Trustee, as the case may be, in accordance
with any provision of the Indenture (including the reasonable
compensation, expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and any Separate
Trustee and their respective agents for, and hold them
harmless against any losses, liability or expense incurred
without negligence or bad faith on their part, arising out of
or in connection with the acceptance or administration of the
transactions contemplated by the Indenture, including the
reasonable costs and expenses of defending themselves against
any claim or liability in connection with the exercise or
performance of any of their powers or duties under the
Indenture; and
(D) indemnify the Owner Trustee and its agents for,
and hold them harmless against, any losses, liability or
expense incurred without gross negligence or bad faith on
their part, arising out of or in connection with the
acceptance or administration of the transactions contemplated
by the Trust Agreement, including the reasonable costs and
expenses of defending themselves against any claim or
liability in connection with the exercise or performance of
any of their powers or duties under the Trust Agreement.
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(b) Additional Duties.
(i) In addition to the duties of the Administrator set forth
above, the Administrator shall perform such calculations and shall
prepare or shall cause the preparation by other appropriate persons of,
and shall execute on behalf of the Issuer or the Owner Trustee, all
such documents, reports, filings, instruments, certificates, notices
and opinions that it shall be the duty of the Issuer or the Owner
Trustee to prepare, file or deliver pursuant to the Related Agreements
or Section 5.5(a)(i), (ii), (iii) or (v) of the Trust Agreement or
Section 7.04(b) or (c) of the Sale and Servicing Agreement, and at the
request of the Owner Trustee shall take all appropriate action that it
is the duty of the Issuer or the Owner Trustee to take pursuant to the
Related Agreements. In furtherance thereof, the Owner Trustee shall, on
behalf of itself and of the Issuer, execute and deliver to the
Administrator and to each successor Administrator appointed pursuant to
the terms hereof, one or more powers of attorney substantially in the
form of Exhibit A hereto, appointing the Administrator the
attorney-in-fact of the Owner Trustee and the Issuer for the purpose of
executing on behalf of the Owner Trustee and the Issuer all such
documents, reports, filings, instruments, certificates and opinions.
Subject to Section 5 of this Agreement, and in accordance with the
directions of the Owner Trustee, the Administrator shall administer,
perform or supervise the performance of such other activities in
connection with the Indenture Collateral (including the Related
Agreements) as are not covered by any of the foregoing provisions and
as are expressly requested by the Owner Trustee and are reasonably
within the capability of the Administrator. Such responsibilities shall
include the obtainment and maintenance of any licenses required to be
obtained or maintained by the Issuer under the Delaware business trust
statute (Chapter 38 of Title 12 of The Delaware Code, 12 Del. Code ss.
3801 et seq. (the "Delaware Business Trust Statute"). In addition, the
Administrator shall promptly notify the Indenture Trustee and the Owner
Trustee in writing of any amendment to the Delaware Business Trust
Statute that would affect the duties or obligations of the Indenture
Trustee or the Owner Trustee under any Related Agreement and shall
assist the Indenture Trustee or the Owner Trustee in its obtainment and
maintenance of any licenses required to be obtained or maintained by
the Indenture Trustee or the Owner Trustee thereunder. In connection
therewith, the Administrator shall cause the Seller to pay all fees and
expenses under such Act.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding
tax is imposed on the Trust's payments (or allocations of income) to an
Owner as contemplated in Section 5.2(f) of the Trust Agreement. Any
such notice shall specify the amount of any withholding tax required to
be withheld by the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for performance of the duties set forth in Section
5.5(a)(i), (ii), (iii), (iv) and (v) of the Trust Agreement with
respect to, among other things, accounting and reports to Owners.
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(iv) The Administrator shall satisfy its obligations with
respect to clauses (ii) and (iii) above by retaining, at the expense of
the Issuer payable by the Administrator, a firm of independent public
accountants (the "Accountants") acceptable to the Owner Trustee, which
shall perform the obligations of the Administrator thereunder.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust Agreement required
to be performed in connection with the resignation or removal of the
Owner Trustee, and any other duties expressly required to be performed
by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its affiliates; provided,
however, that the terms of any such transactions or dealings shall be
in accordance with any directions received from the Issuer and shall
be, in the Administrator's opinion, no less favorable to the Issuer
than would be available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of
the Administrator are non-ministerial, the Administrator shall not take
any such action unless within a reasonable time before the taking of
such action, the Administrator shall have notified the Owner Trustee of
the proposed action and the Owner Trustee shall not have withheld
consent or provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial" shall include, without
limitation:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer (other than in connection
with the collection of the Loans or Eligible Investments);
(C) the amendment, change or modification of the
Related Agreements;
(D) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture Trustees
pursuant to the Indenture or the appointment of successor
Administrators or successor Servicers, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture
Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not,
(x) make any payments to the Noteholders under the Related Agreements,
(y) sell the Trust Estate pursuant to Section 5.04 of the Indenture or
Section 9.3 of the Trust Agreement or (z) take any other action that
the Issuer directs the Administrator not to take on its behalf.
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2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the Seller
and the Servicer at any time during normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to a monthly fee
to be determined by the Seller and the Administrator, which shall be solely an
obligation of the Seller.
4. Additional Information to be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Indenture Collateral as the Issuer shall reasonably
request.
5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
6. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them, or (iii) shall be deemed to confirm
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
7. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the dissolution of the
Issuer, upon which event this Agreement shall automatically terminate.
(b) The Administrator may resign from its duties hereunder by providing
the Issuer with at least 60 days' prior written notice.
(c) The Issuer may remove the Administrator without cause by providing
the Administrator with at least 60 days' prior written notice.
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(d) At the sole option of the Issuer, the Administrator may be removed
immediately upon written notice of termination from the Issuer to the
Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such default,
shall not cure such default within ten days (or, if such default cannot
be cured in such time, shall not give within ten days such assurance of
cure as shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have
been vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section shall occur, it shall give written notice thereof
to the Issuer and the Indenture Trustee within seven days after the happening of
such event.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer and (ii) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(g) Subject to Section 8(e) and 8(f), the Administrator acknowledges
that upon the appointment of a successor Servicer pursuant to the Sale and
Servicing Agreement, the Administrator shall immediately resign and such
successor Servicer shall automatically become the Administrator under this
Agreement.
9. Action Upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a) or the
resignation or removal of the Administrator pursuant to Section 8(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or
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removal. The Administrator shall forthwith upon such termination pursuant to
Section 8(a) deliver to the Issuer all property and documents of or relating to
the Indenture Collateral then in the custody of the Administrator. In the event
of the resignation or removal of the Administrator pursuant to Section 8(b) or
(c), respectively, the Administrator shall cooperate with the Issuer and take
all reasonable steps requested to assist the Issuer in making an orderly
transfer of the duties of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) If to the Issuer or the Owner Trustee, to:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Administration
(b) If to the Administrator, to:
Conseco Finance Servicing Corp.
1100 Landmark Towers
▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
(c) If to the Indenture Trustee, to:
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Administration, Structured
Finance
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
11. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the Administrator
and the Indenture Trustee, with the written consent of the Owner Trustee,
without the consent of the Noteholders and the Certificateholders, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Noteholders or Certificateholders; provided that such amendment will not, in
the opinion of counsel satisfactory to the Indenture Trustee, materially and
adversely affect the interest of any Noteholder or Certificateholder. This
Agreement may also be amended by the Issuer, the Administrator, the Indenture
Trustee with the written consent of the Owner Trustee, the holders of Notes
evidencing
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a Note Majority of each Class, and the holders of Certificates evidencing a
Certificate Majority for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of Noteholders or the Certificateholders;
provided, however, that no such amendment may (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Loans or distributions that are required to be made for the benefit
of the Noteholders or the Certificateholders or (ii) reduce the aforesaid
percentage of the Notes and Certificates which are required to consent to any
such amendment, without the consent of the holders of all the outstanding Notes
and Certificates. Notwithstanding the foregoing, the Administrator may not amend
this Agreement without the permission of the Seller and the Company, which
permission shall not be unreasonably withheld.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator; provided that such successor organization executes
and delivers to the Issuer, the Owner Trustee and the Indenture Trustee an
agreement in which such corporation or other organization agrees to be bound
hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
13. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, each
of which when so executed shall be an original, but all of which together shall
constitute but one and the same agreement.
16. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
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17. Not Applicable to Conseco Finance Servicing Corp. in Other
Capacities. Nothing in this Agreement shall affect any obligation Conseco
Finance Servicing Corp. may have in any other capacity.
18. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Wilmington Trust Company not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall Wilmington Trust Company in its individual capacity or any
beneficial owner of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder,
as to all of which recourse shall be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles VI, VII and VIII of the
Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by U.S. Bank Trust National Association not in
its individual capacity but solely as Indenture Trustee and in no event shall
U.S. Bank Trust National Association have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Issuer.
19. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
20. Limitation of Liability. It is expressly understood and agreed by
the parties hereto that (a) this Agreement is executed and delivered by
Wilmington Trust Company, not individually or personally but solely as Owner
Trustee of Conseco Finance 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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
CONSECO FINANCE HOME LOAN TRUST 1999-G
By WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION, not in its
individual capacity but solely as Indenture Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
CONSECO FINANCE SERVICING CORP.,
as Administrator
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President and Secretary
EXHIBIT A
POWER OF ATTORNEY
STATE OF )
)
COUNTY OF )
KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as owner
trustee (the "Owner Trustee") for Conseco Finance Home Loan Trust 1999-G (the
"Trust"), does hereby make, constitute and appoint Conseco Finance Servicing
Corp., as administrator under the Administration Agreement dated as of September
1, 1999 (the "Administration Agreement"), among the Trust, Conseco Finance
Servicing Corp. and U.S. Bank Trust National Association, as Indenture Trustee,
as the same may be amended from time to time, and its agents and attorneys, as
Attorneys-in-Fact to execute on behalf of the Owner Trustee or the Trust all
such documents, reports, filings, instruments, certificates and opinions as it
should be the duty of the Owner Trustee or the Trust to prepare, file or deliver
pursuant to the Related Documents, or pursuant to Section 5.5(a)(i), (ii),
(iii), (iv) or (v) of the Trust Agreement, including, without limitation, to
appear for and represent the Owner Trustee and the Trust in connection with the
preparation, filing and audit of federal, state and local tax returns pertaining
the Trust, and with full power to perform any and all acts associated with such
returns and audits that the Owner Trustee could perform, including without
limitation, the right to distribute and receive confidential information, defend
and assert positions in response to audits, initiate and defend litigation, and
to execute waivers of restrictions on assessments of deficiencies, consents to
the extension of any statutory or regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed by
the Owner Trustee are hereby revoked.
A-1
Capitalized terms that are used and not otherwise defined herein shall
have the meanings ascribed thereto in the Administration Agreement.
EXECUTED this 16th day of November, 1999.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner Trustee
By:
-----------------------------------------
Name:
Title:
STATE OF )
)
COUNTY OF )
Before me, the undersigned authority, on this day personally appeared
_________________, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he/she signed the same for the
purposes and considerations therein expressed.
Sworn to before me this 16th day of November, 1999.
Notary Public - State of ___________________
A-2