Exhibit 4.2
CONSECO FINANCE RECREATIONAL ENTHUSIAST CONSUMER TRUST 2000-A
SALE AND SERVICING AGREEMENT
among
CONSECO FINANCE RECREATIONAL ENTHUSIAST CONSUMER TRUST 2000-A
as Issuer
CONSECO FINANCE SECURITIZATIONS CORP.
as Seller
and
CONSECO FINANCE CORP.
as Orginator and Servicer
Dated as of June 1, 2000
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS............................................................ 1-1
SECTION 1.01. General........................................................... 1-1
SECTION 1.02. Specific Terms.................................................... 1-1
ARTICLE II TRANSFER OF CONTRACTS.................................................. 2-1
SECTION 2.01. Transfer of Contracts............................................. 2-1
SECTION 2.02. Conditions to Acceptance by Owner Trustee......................... 2-1
SECTION 2.03. Conveyance of the Subsequent Contracts............................ 2-3
ARTICLE III REPRESENTATIONS AND WARRANTIES......................................... 3-1
SECTION 3.01. Representations and Warranties Regarding the Seller
and Originator and Covenants of the Originator.................... 3-1
SECTION 3.02. Representations and Warranties Regarding Each Contract............ 3-2
SECTION 3.03. Representations and Warranties Regarding the
Contracts in the Aggregate........................................ 3-5
SECTION 3.04. Representations and Warranties Regarding the Contract Files....... 3-6
SECTION 3.05. Repurchase of Contracts for Breach of Representations
and Warranties.................................................... 3-6
SECTION 3.06. Covenants Regarding the Seller and Class C Certificateholder...... 3-7
ARTICLE IV PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS............ 4-1
SECTION 4.01. Custody........................................................... 4-1
SECTION 4.02. Filings........................................................... 4-2
SECTION 4.03. Name Change or Relocation......................................... 4-2
SECTION 4.04. Chief Executive Office............................................ 4-2
SECTION 4.05. Costs and Expenses................................................ 4-2
ARTICLE V SERVICING OF CONTRACTS................................................. 5-1
SECTION 5.01. Responsibility for Contract Administration........................ 5-1
SECTION 5.02. Standard of Care.................................................. 5-1
SECTION 5.03. Records........................................................... 5-1
SECTION 5.04. Inspection; Computer Tape......................................... 5-1
SECTION 5.05. Collections....................................................... 5-2
SECTION 5.06. Enforcement....................................................... 5-3
SECTION 5.07. Satisfaction of Contracts......................................... 5-4
SECTION 5.08. Costs and Expenses................................................ 5-4
SECTION 5.09. Maintenance of Insurance.......................................... 5-4
SECTION 5.10. Repossession...................................................... 5-5
SECTION 5.11. Commingling of Funds.............................................. 5-6
SECTION 5.12. Retitling; Security Interests..................................... 5-6
SECTION 5.13. Servicer Advances................................................. 5-6
-i-
SECTION 5.14. Monthly Reports; Certificate of Servicing Officer................. 5-6
SECTION 5.15. Annual Report of Accountants...................................... 5-7
SECTION 5.16. Certain Duties of the Servicer Under the Trust Agreement.......... 5-7
SECTION 5.17. Annual Statement as to Compliance; Notice of Servicer
Termination Event................................................. 5-7
SECTION 5.18. Maintenance of Security Interests in Products..................... 5-8
SECTION 5.19. Covenants, Representations, and Warranties of Servicer............ 5-8
SECTION 5.20. Purchase of Contracts Upon Breach of Covenant..................... 5-10
ARTICLE VI DISTRIBUTIONS; TRUST ACCOUNTS; STATEMENTS TO SECURITYHOLDERS........... 6-1
SECTION 6.01. Trust Accounts.................................................... 6-1
SECTION 6.02. Collection Account Deposits....................................... 6-2
SECTION 6.03. Permitted Withdrawals............................................. 6-2
SECTION 6.04. Distributions..................................................... 6-3
SECTION 6.05. Statements to Securityholders..................................... 6-4
SECTION 6.06. Pre-Funding Account............................................... 6-6
SECTION 6.07. [Reserved]........................................................ 6-6
SECTION 6.08. Reserve Account................................................... 6-7
SECTION 6.09 Class B Reserve Account........................................... 6-7
ARTICLE VII SERVICE TRANSFER....................................................... 7-1
SECTION 7.01. Event of Termination.............................................. 7-1
SECTION 7.02. Transfer.......................................................... 7-2
SECTION 7.03. Indenture Trustee to Act; Appointment of Successor................ 7-2
SECTION 7.04. Notification to Securityholders................................... 7-3
SECTION 7.05. Effect of Transfer................................................ 7-3
SECTION 7.06. Transfer of Collection Account.................................... 7-4
SECTION 7.07. Limits on Liability............................................... 7-4
SECTION 7.08. Waiver of Past Defaults........................................... 7-4
ARTICLE VIII TERMINATION............................................................ 8-1
SECTION 8.01. Class C Certificateholder's Purchase Option; Auction Sale;
Accelerated Principal Distribution Amount......................... 8-1
SECTION 8.02. Liquidation or Sale of Trust Estate............................... 8-2
ARTICLE IX INDEMNITIES............................................................ 9-1
SECTION 9.01. Originator's Indemnities.......................................... 9-1
SECTION 9.02. Liabilities to Obligors
SECTION 9.03. Servicer's Indemnities............................................ 9-1
SECTION 9.04. Operation of Indemnities.......................................... 9-2
ARTICLE X MISCELLANEOUS.......................................................... 10-1
SECTION 10.01. Servicer Not to Assign Duties or Resign; Delegation
of Servicing Duties............................................... 10-1
SECTION 10.02. Assignment or Delegation by Originator............................ 10-1
-ii-
SECTION 10.03. Amendment......................................................... 10-2
SECTION 10.04. Notices........................................................... 10-3
SECTION 10.05. Merger and Integration............................................ 10-4
SECTION 10.06. Headings.......................................................... 10-5
SECTION 10.07. Governing Law..................................................... 10-5
SECTION 10.08. Limitation of Liability........................................... 10-5
SECTION 10.09. Seller's Charter; Residual Interests.............................. 10-5
Exhibit A -- Form of Assignment
Exhibit B -- Form of Certificate Regarding Repurchased Contracts
Exhibit C -- Form of Monthly Report
Exhibit D -- Form of Certificate of Servicing Officer
Exhibit E -- Form of Addition Notice
Exhibit F -- Form of Subsequent Transfer Instrument
Exhibit G -- Form of Officer's Certificate (Subsequent Transfer)
Exhibit H -- List of Initial Contracts
-iii-
THIS SALE AND SERVICING AGREEMENT, dated as of June 1, 2000, among Conseco
Finance Recreational Enthusiast Consumer Trust 2000-A (the "Trust"), Conseco
Finance Securitizations Corp., a corporation organized and existing under the
laws of the State of Minnesota, as Seller (the "Seller") and Conseco Finance
Corp., a corporation organized and existing under the laws of the State of
Delaware, as originator of the Contracts described herein (the "Originator"),
and as Servicer (the "Servicer").
WHEREAS, in the regular course of its business, Conseco Finance Corp.
purchases, originates and services certain retail installment sales contracts
and promissory notes for the purchase of recreational vehicles, motorcycles and
marine products (the "Products"), each of which contracts provides for
installment payments by or on behalf of the purchaser and grants a lien on or
security interest in a Product; and
WHEREAS, the Seller, in the ordinary course of its business, acquires pools
of Contracts, as hereinafter defined, from Conseco Finance Corp. and arranges
the securitization of those Contracts; and
WHEREAS, the Seller, the Originator, the Servicer and the Trust wish to set
forth the terms and conditions pursuant to which the Trust will acquire the
"Contracts," as hereinafter defined, and the Servicer will service the
Contracts;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the parties hereto agree as provided herein:
ARTICLE I
DEFINITIONS
SECTION 1.01. General.
-------
(a) For the purpose of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, the 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
Section references refer to Sections of this Agreement.
(b) Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Indenture.
(c) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(d) As used in this Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms in this Agreement or in any such certificate or other document
are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person include its permitted successors and assignees.
SECTION 1.02. Specific Terms.
--------------
All terms defined in any Related Document and not otherwise defined in this
Agreement shall have the meanings given them in such Related Document.
"Addition Notice" means, with respect to the transfer of Subsequent
---------------
Contracts to the Trust pursuant to Section 2.03 of this Agreement, a notice,
substantially in the form of Exhibit E, which shall be given not later than five
Business Days prior to the related Subsequent Transfer
1-1
Date, of the Seller's designation of Subsequent Contracts to be sold to the
Trust and the aggregate Cut-off Date Principal Balance of such Subsequent
Contracts.
"Additional Principal Distribution Amount" means:
----------------------------------------
(i) for any Distribution Date on or prior to the earlier of the
Distribution Date in July 2002 and the first Distribution Date on which the
Overcollateralization Amount equals $14,000,000, the lesser of (A) the
Amount Available remaining after payment of the amounts described in
clauses (i) through (xi) of Section 6.04(a), and (B) the amount (but not
less than zero) necessary to increase the Overcollateralization Amount on
that Distribution Date to $14,000,000, and
(ii) for any Distribution Date after the earlier of the Distribution
Date in July 2002 and the first Distribution Date on which the
Overcollateralization Amount equals $14,000,00, zero.
"Advance Payment" means, with respect to any Monthly Period, any payment by
---------------
an Obligor that was not due under the related Contract during or before such
Monthly Period and which payment is not a Principal Prepayment.
"Affiliate" of any specified Person means any other Person controlling or
---------
controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" or "controlled" have meanings
correlative to the foregoing.
"Agreement" means this Sale and Servicing Agreement as the same may be
---------
amended or supplemented from time to time.
"Amount Available" means, as to any Distribution Date, an amount equal to
----------------
the Collected Funds for that Distribution Date plus any amounts required to be
deposited in the Collection Account on or before such Distribution Date pursuant
to Sections 6.02, 6.06, 8.01 and 8.02 of this Agreement, Section 10.04 of the
Indenture or Section 9.3 of the Trust Agreement.
"Amount Held for Future Distribution" means, as to any Distribution Date,
-----------------------------------
the total of the amounts held in the Collection Account on the last day of the
related Monthly Period on account of Advance Payments in respect of such Monthly
Period.
"Assignment" means the Assignment from the Seller to the Trust
----------
substantially in the form of Exhibit A, whereby the Seller assigns the Initial
Contracts to the Trust.
"Average Sixty-Day Delinquency Ratio" means, as to any Distribution Date,
-----------------------------------
the arithmetic average of the Sixty-Day Delinquency Ratios for such Distribution
Date and the two immediately preceding Distribution Dates.
1-2
"Average Sixty-Day Delinquency Ratio Test" means, to be considered
----------------------------------------
"satisfied" for any Distribution Date, that the Average Sixty-Day Delinquency
Ratio for such Distribution Date is less than 10%.
"Business Day" means any day other than (a) a Saturday, Sunday, legal
------------
holiday or other day on which commercial banking institutions in Minneapolis,
Minnesota, New York, New York, Wilmington, Delaware or any other location of any
successor Servicer, successor Owner Trustee or successor Trustee are authorized
or obligated by law, executive order or governmental decree to be closed.
"Certificate Distribution Account" means the account established and
--------------------------------
maintained pursuant to Section 6.01(c).
"Certificate Majority" means Holders of Certificates representing more than
--------------------
50% of the interest of the Certificates as a whole.
"Certificates" means the Class C Asset-Backed Certificates issued under
------------
the Trust Agreement.
"Class" means pertaining to each Class of Notes or Certificates, as
-----
applicable.
"Class A Interest Amount" means as to any Distribution Date, the sum of the
-----------------------
Class A-1 Interest Amount, the Class A-2 Interest Amount and the Class A-3
Interest Amount.
"Class A Principal Balance" means, as to any Distribution Date, the sum of
-------------------------
the Class A-1 Principal Balance, the Class A-2 Principal Balance and the Class
A-3 Principal Balance.
"Class A-1 Formula Principal Distribution Amount" means, on any
-----------------------------------------------
Distribution Date before the Stepdown Date, the lesser of the Total Note
Principal Distribution Amount and the Class A-1 Principal Balance; and
thereafter:
(i) if no Trigger Event exists, the lesser of 66.67% of the Total
Note Principal Distribution Amount and the Class A-1 Principal Balance; or
(ii) if a Trigger Event exists, the lesser of the Total Note Principal
Distribution Amount and the Class A-1 Principal Balance.
"Class A-1 Interest Amount" means with respect to any Distribution Date, an
-------------------------
amount equal to one month's interest (or, with respect to the Distribution Date
in July 2000, from and including the Closing Date to but excluding July 15,
2000) at the Class A-1 Interest Rate on the Class A-1 Principal Balance.
"Class A-1 Interest Shortfall" means, with respect to any Distribution
----------------------------
Date, the amount, if any, by which the amount distributed to Holders of the
Class A-1 Notes on such Distribution Date is less than the Class A-1 Interest
Amount for such Distribution Date.
1-3
"Class A-1 Interest Rate" means a per annum rate of interest equal to
-----------------------
7.562%, calculated on the basis of a 360 day year consisting of twelve 30-day
months.
"Class A-1 Notes" means the Class A-1 Asset-Backed Notes issued by the
---------------
Trust pursuant to the Indenture.
"Class A-1 Principal Balance" means, as to any Distribution Date, the
---------------------------
Original Class A-1 Principal Balance less all amounts distributed to Holders of
Class A-1 Notes on any prior Distribution Date on account of principal.
"Class A-2 Interest Amount" means, with respect to any Distribution Date,
-------------------------
an amount equal to one month's interest (or, with respect to the Distribution
Date in July 2000, from and including the Closing Date to but excluding July 15,
2000) at the Class A-2 Interest Rate on the Class A-2 Principal Balance.
"Class A-2 Interest Shortfall" means, with respect to any Distribution
----------------------------
Date, the amount, if any, by which the amount distributed to Holders of the
Class A-2 Notes on such Distribution Date pursuant to the Indenture is less than
the Class A-2 Interest Amount for such Distribution Date.
"Class A-2 Interest Rate" means a per annum rate of interest equal to
-----------------------
7.850%, calculated on the basis of a 360 day year consisting of twelve 30-day
months.
"Class A-2 Notes" means the Class A-2 Asset-Backed Notes issued by the
---------------
Trust pursuant to the Indenture.
"Class A-2 Principal Balance" means, as to any Distribution Date the
---------------------------
Original Class A-2 Principal Balance less all amounts distributed to Holders of
Class A-2 Notes on prior Distribution Dates on account of principal.
"Class A-2 and Class A-3 Formula Principal Distribution Amount" means, with
-------------------------------------------------------------
respect to any Distribution Date:
(i) if the Distribution Date is before the Stepdown Date, zero;
(ii) if the Distribution Date is on or after the Stepdown Date and no
Trigger Event exists, the lesser of 66.67% of the Total Note Principal
Distribution Amount and the sum of the Class A-2 Principal Balance and the
Class A-3 Principal Balance, distributed sequentially to such Class A-2
Notes and Class A-3 Notes;
(iii) if the Class A-1 Principal Balance has been reduced to zero and
a Trigger Event exists, the lesser of 100% of the Total Note Principal
Distribution Amount and the sum of the Class A-2 Principal Balance and the
Class A-3 Principal Balance, distributed sequentially to the Class A-2 and
Class A-3 Notes.
1-4
"Class A-3 Interest Amount" means, with respect to any Distribution Date,
-------------------------
an amount equal to one month's interest (or, with respect to the Distribution
Date in July 2000, from and including the Closing Date to but excluding July 15,
2000) at the Class A-3 Interest Rate on the Class A-3 Principal Balance.
"Class A-3 Interest Shortfall" means, with respect to any Distribution
----------------------------
Date, the amount, if any, by which the amount distributed to Holders of the
Class A-3 Notes on such Distribution Date is less than the Class A-3 Interest
Amount for such Distribution Date.
"Class A-3 Interest Rate" means a per annum rate of interest equal to
-----------------------
8.110%, calculated on the basis of a 360 day year consisting of twelve 30-day
months.
"Class A-3 Notes" means the Class A-3 Asset-Backed Notes issued by the
---------------
Trust pursuant to the Indenture.
"Class A-3 Principal Balance" means, as to any Distribution Date, the
---------------------------
Original Class A-3 Principal Balance less all amounts distributed to Holders of
Class A-3 Notes on prior Distribution Dates on account of principal.
"Class B Formula Principal Distribution Amount" means, on any Distribution
---------------------------------------------
Date:
(i) if the Distribution Date is before the Stepdown Date and no
Trigger Event exists, $0;
(ii) if the Distribution Date is on or after the Stepdown Date and no
Trigger Event exists, 13.33% of the Total Note Principal Distribution
Amount, but in no event more than the Class B Principal Balance;
(iii) if a Trigger Event exists, the Total Note Principal Distribution
Amount less the sum of the Class A-1 Formula Principal Distribution Amount,
the Class A-2 and Class A-3 Formula Principal Distribution Amount, Class M-
1 Formula Principal Distribution Amount and the Class M-2 Formula Principal
Distribution Amount, but in no event more than the Class B Principal
Balance.
"Class B Interest Amount" means, as to any Distribution Date, an amount
-----------------------
equal to one month's interest (or, with respect to the first Distribution Date,
interest from and including the Closing Date to but excluding July 15, 2000) at
the Class B Interest Rate on the Class B Principal Balance.
"Class B Interest Shortfall" means as to any Distribution Date, the amount,
--------------------------
if any, by which the amount distributed to Holders of the Class B Notes on such
Distribution Date is less than the Class B Interest Amount for such Distribution
Date.
"Class B Interest Rate" means 9.920% per annum, computed on the basis of a
---------------------
year of 360 days consisting of twelve 30-day months.
1-5
"Class B Notes" means the Class B Asset-Backed Notes issued by the Trust
-------------
pursuant to the Indenture.
"Class B Pool Factor" means, with respect to any Distribution Date, an
-------------------
eight-digit decimal figure equal to the outstanding principal balance of the
Class B Notes as of such Distribution Date (after giving effect to all
distributions on such date) divided by the Original Class B Principal Balance.
"Class B Principal Balance" means, as to any Distribution Date, the
-------------------------
Original Class B Principal Balance less all amounts distributed to Holders of
Class B Notes on prior Distribution Dates on account of principal.
"Class B Reserve Account" means the account established and maintained
-----------------------
pursuant to Section 6.09.
"Class B Reserve Account Excess Amount" means, with respect to any
-------------------------------------
Distribution Date, an amount equal to the excess, if any, of:
(i) the amount of cash or other immediately available funds in the
Class B Reserve Account on the Distribution Date, prior to giving effect to
any withdrawals from the Class B Reserve Account relating to that
Distribution Date, over
(ii) the Class B Specified Reserve Balance with respect to that
Distribution Date.
"Class B Specified Reserve Balance" means an amount equal to $1,400,000.
---------------------------------
"Class M-1 Formula Principal Distribution Amount" means, on any
-----------------------------------------------
Distribution Date:
(i) if the Distribution Date is before the Stepdown Date and no
Trigger Event exists, $0;
(ii) if the Distribution Date is on or after the Stepdown Date and no
Trigger Event exists, 11.11% of the Total Note Principal Distribution
Amount, but in no event more than the Class M-1 Principal Balance;
(iii) if a Trigger Event exists, the Total Note Principal Distribution
Amount less the sum of the Class A-1 Formula Principal Distribution Amount
and the Class A-2 and Class A-3 Formula Principal Distribution Amount, but
in no event more than the Class M-1 Principal Balance.
"Class M-1 Interest Amount" means, with respect to any Distribution Date,
-------------------------
an amount equal to one month's interest (or, with respect to the first
Distribution Date, interest from and including the Closing Date to but excluding
July 15, 2000) at the Class M-1 Interest Rate on the Class M-1 Principal
Balance.
1-6
"Class M-1 Interest Shortfall" means, with respect to any Distribution
----------------------------
Date, the amount, if any, by which the amount distributed to Holders of the
Class M-1 Notes on such Distribution Date is less than the Class M-1 Interest
Amount for such Distribution Date.
"Class M-1 Interest Rate" means a per annum rate of interest equal to
-----------------------
8.480%, calculated on the basis of a year of 360 days consisting of twelve 30-
day months.
"Class M-1 Notes" means the Class M-1 Asset-Backed Notes issued by the
---------------
Trust pursuant to the Indenture.
"Class M-1 Pool Factor" means, with respect to any Distribution Date, an
---------------------
eight-digit decimal figure equal to the outstanding principal balance of the
Class M-1 Notes as of such Distribution Date (after giving effect to all
distributions on such date) divided by the Original Class M-1 Principal Balance.
"Class M-1 Principal Balance" means, as to any Distribution Date, the
---------------------------
Original Class M-1 Principal Balance less all amounts distributed to Holders of
Class M-1 Notes on prior Distribution Dates on account of principal.
"Class M-2 Formula Principal Distribution Amount" means, on any
-----------------------------------------------
Distribution Date:
(i) if the Distribution Date is before the Stepdown Date and no
Trigger Event exists, $0;
(ii) if the Distribution Date is on or after the Stepdown Date and no
Trigger Event exists, 8.89% of the Total Note Principal Distribution
Amount, but in no event more than the Class M-2 Principal Balance;
(iii) if a Trigger Event exists, the Total Note Principal Distribution
Amount less the sum of the Class A-1 Formula Principal Distribution Amount,
the Class A-2 and Class A-3 Formula Principal Distribution Amount and the
Class M-1 Formula Principal Distribution Amount, but in no event more than
the Class M-2 Principal Balance.
"Class M-2 Interest Amount" means, with respect to any Distribution Date,
-------------------------
an amount equal to one month's interest (or with respect to the first
Distribution Date, interest from and including the Closing Date to but excluding
July 15, 2000) at the Class M-2 Interest Rate on the Class M-2 Principal
Balance.
"Class M-2 Interest Shortfall" means, with respect to any Distribution
----------------------------
Date, the amount, if any, by which the amount distributed to Holders of the
Class M-2 Notes on such Distribution Date is less than the Class M-2 Interest
Amount for such Distribution Date.
"Class M-2 Interest Rate" means a per annum rate of interest equal to
-----------------------
8.960%, calculated on the basis of a year of 360 days consisting of twelve 30-
day months.
1-7
"Class M-2 Notes" means the Class M-2 Asset-Backed Notes issued by the
---------------
Trust pursuant to the Indenture.
"Class M-2 Pool Factor" means, with respect to any Distribution Date, an
---------------------
eight-digit decimal figure equal to the outstanding principal balance of the
Class M-2 Notes as of such Distribution Date (after giving effect to all
distributions on such date) divided by the Original Class M-2 Principal Balance.
"Class M-2 Principal Balance" means, as to any Distribution Date, the
---------------------------
Original Class M-2 Principal Balance less all amounts distributed to Holders of
Class M-2 Notes on prior Distribution Dates on account of principal.
"Closing Date" means June 29, 2000.
------------
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Collateral Security" means, with respect to any Contract, (i) the security
-------------------
interests, if any, granted by or on behalf of the related Obligor with respect
thereto, including a first priority perfected security interest in the related
Product, (ii) all other security interests or liens and property subject thereto
from time to time purporting to secure payment of such Contract, whether
pursuant to the agreement giving rise to such Contract or otherwise, together
with all financing statements signed by the Obligor describing any collateral
securing such Contract, (iii) all security agreements granting a security
interest in the related Product and all guarantees, insurance and other
agreements or arrangements of whatever character from time to time supporting or
securing payment of such Contract whether pursuant to the agreement giving rise
to such Contract or otherwise, and (iv) all records in respect of such Contract.
"Collected Funds" means, as to any Distribution Date, an amount equal to
---------------
(a) the sum of (i) the amount on deposit in the Collection Account as of the
close of business on the last day of the related Monthly Period (exclusive of
any amounts deposited therein pursuant to Sections 8.01 or 8.02 of this
Agreement or Section 10.04 of the Indenture), (ii) any amounts required to be
deposited in the Collection Account on or before the Business Day immediately
preceding such Distribution Date pursuant to Sections 5.09 or 5.13, and (iii)
any amount deposited in the Collection Account in respect of principal on the
Contracts (exclusive of any amounts deposited therein pursuant to Sections 6.06,
8.01 or 8.02 of this Agreement, Section 10.04 of the Indenture or Section 9.3 of
the Trust Agreement) after the last day of the related Monthly Period through
and including the third Business Day prior to the Distribution Date, but in no
event later than the 10th day of the month in which such Distribution Date
occurs, reduced by (b) the sum as of the close of business on the last day of
the related Monthly Period of (i) the Amount Held for Future Distribution, (ii)
amounts permitted to be withdrawn by the Trustee from the Collection Account
pursuant to clauses (b) - (e), inclusive, of Section 6.03; and (iii) with
respect to all Distribution Dates other than the Distribution Date in July 2000,
any amount deposited in the Collection Account in respect of principal on the
Contracts (exclusive of any amounts deposited therein pursuant to Sections 6.06,
8.01 or 8.02 of this Agreement, Section 10.04 of the Indenture or Section 9.3 of
the Trust Agreement) on or after the first day of the related Monthly Period and
1-8
through and including the third Business Day of the preceding Distribution Date,
but in no event later than the 10th day of the related Monthly Period.
"Collection Account" means the account established and maintained pursuant
------------------
to Section 6.01(a).
"Computer Tape" means the computer tape generated by the Originator which
-------------
provides information relating to the Contracts and which was used by the
Originator in selecting the Contracts, and includes the master file and the
history file.
"Contract File" means, as to each Contract, (a) the original copy of the
-------------
Contract, including the executed evidence of the obligation of the Obligor; (b)
either (i) the original title document for the related Product or a duplicate
certified by the appropriate governmental authority which issued the original
thereof or the application for such title document or (ii) if the laws of the
jurisdiction in which the related Product is located do not provide for the
issuance of title documents for goods of the type including the Product, other
evidence of ownership of the related Product which is customarily relied upon in
such jurisdiction as evidence of title to such goods; (c) evidence of one or
more of the following types of perfection of the security interest in the
related Product granted by such Contract, as appropriate: (i) notation of such
security interest on the title document, (ii) a financing statement meeting the
requirements of the UCC, with evidence of recording indicated thereon (if
required to perfect a security interest in the related Product under the UCC as
in force in the relevant state), or (iii) such other evidence of perfection of a
security interest in goods of the type including the Product as is customarily
relied upon in the jurisdiction in which the related Product is located; (d) the
assignment of the Contract from the originator (if other than the Originator or
a wholly-owned subsidiary of the Originator) to the Originator or a wholly-owned
subsidiary of the Originator; (e) any extension, modification or waiver
agreement(s); (f) a credit application signed by the Obligor, or a copy thereof;
and (g) if required by Section 5.09, a certificate of insurance or application
form for insurance signed by the Obligor, or copies thereof.
"Contract Rate" means, with respect to any particular Contract, the rate of
-------------
interest specified in that Contract and computed in accordance with the method
specified in that Contract.
"Contracts" means the retail installment sales contracts and promissory
---------
notes described in the List of Contracts and constituting part of the corpus of
the Trust, which Contracts are to be assigned and conveyed by the Seller to the
Trust, and includes, without limitation, all related security interests and any
and all rights to receive payments which are due pursuant thereto on or after
the Cutoff Date, but excluding any rights to receive payments which are due
pursuant thereto prior to the Cutoff Date.
"Corporate Trust Office" means with respect to the Owner Trustee, the
----------------------
principal office of the Owner Trustee at which at any particular time its
corporate trust business shall be administered, which office at the Closing Date
is located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration; the telecopy
number for the Corporate Trust Office of the Owner Trustee on the date of the
1-9
execution of this Agreement is 000-000-0000; with respect to the Indenture
Trustee, the principal office of the Indenture Trustee at which at any
particular time its corporate trust business shall be administered, which office
at the Closing Date is located at U.S. Bank Trust National Association, 000 Xxxx
Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000 Attention: Corporate Trust Department;
the telecopy number for the Corporate Trust Office of the Indenture Trustee on
the date of execution of this Agreement is 000-000-0000.
"Counsel for the Originator" means Xxxxxx & Xxxxxxx LLP or other legal
--------------------------
counsel for the Originator.
"Cumulative Realized Loss Ratio" means, for any Distribution Date, a
------------------------------
fraction, expressed as a percentage, the numerator of which is the Cumulative
Realized Losses for that Distribution Date and the denominator of which is the
sum of the Cut-off Date Pool Principal Balance plus the amount on deposit in the
Pre-Funding Account immediately prior to the Post-Funding Distribution Date.
"Cumulative Realized Losses" means, for any Distribution Date, the sum of
--------------------------
the Realized Losses for the Contracts for that Distribution Date and each
preceding Distribution Date since the Cut-off Date.
"Cumulative Realized Losses Test" means, to be considered "satisfied" for
-------------------------------
any Distribution Date, that the Cumulative Realized Loss Ratio for the
Contracts, for such Distribution Date is less than or equal to the percentage
set forth below:
Distribution Date Percentage
----------------- ----------
July 2002 - December 2002 2.70%
January 2003 - June 2003 3.44%
July 2003 - December 2003 4.05%
January 2004 - June 2004 4.63%
July 2004 - December 2004 5.09%
January 2005 - June 2005 5.25%
July 2005 - December 2005 5.45%
January 2006 - June 2006 5.65%
July 2006 - December 2006 5.83%
"Cutoff Date" means the Initial Cutoff Date with respect to the Initial
-----------
Contracts or the Subsequent Cutoff Date with respect to the Subsequent
Contracts.
"Cutoff Date Pool Principal Balance" means the aggregate of the Cutoff Date
----------------------------------
Principal Balances of the Contracts.
"Cutoff Date Principal Balance" means, as to any Contract, the unpaid
-----------------------------
principal balance thereof at the Cutoff Date after giving effect to all
installments of principal due prior thereto.
1-10
"Defaulted Contract" means a Contract with respect to which the Servicer
------------------
commenced repossession or foreclosure procedures, made a sale of such Contract
to a third party for repossession, foreclosure or other enforcement, or as to
which there was a payment delinquent 180 or more days (excluding any Contract
deemed delinquent solely because the Obligor's required monthly payment was
reduced as a result of bankruptcy or similar proceedings).
"Delinquent Payment" means, as to any Contract, with respect to any Monthly
------------------
Period, any payment or portion of a payment of principal or interest that was
originally scheduled to be made during such Monthly Period under such Contract
and was not received or applied during such Monthly Period, whether or not any
payment extension has been granted by the Servicer.
"Determination Date" means the third Business Day prior to each
------------------
Distribution Date during the term of this Agreement.
"Distribution Date" means the fifteenth day of each calendar month during
-----------------
the term of this Agreement, or if such day is not a Business Day, the next
succeeding Business Day, commencing on July 17, 2000.
"Due Date" means, as to any Contract, the date of the month on which the
--------
scheduled monthly payment for such Contract is due.
"Electronic Ledger" means the electronic master record of installment sale
-----------------
contracts of the Originator.
"Eligible Account" means, at any time, an account which is any of the
----------------
following: (i) an account maintained with an Eligible Institution; (ii) a trust
account (which shall be a "segregated trust account") maintained with the
corporate trust department of a federal or state chartered depository
institution or trust company with trust powers and acting in its fiduciary
capacity for the benefit of the Indenture Trustee, which depository institution
or trust company shall have capital and surplus (or, if such depository
institution or trust company is a subsidiary of a bank holding company system,
the capital and surplus of the bank holding company) of not less than
$50,000,000 and the securities of such depository institution (or, if such
depository institution is a subsidiary of a bank holding company system and such
depository institution's securities are not rated, the securities of the bank
holding company) shall have a credit rating from Standard & Poor's (if rated by
Standard & Poor's) and Moody's in one of its generic credit rating categories
which signifies investment grade; or (iii) an account that will not cause
Standard & Poor's and Moody's to downgrade or withdraw their then-current
ratings assigned to the Notes, as confirmed in writing by Standard & Poor's and
Moody's.
"Eligible Institution" means any depository institution (which may be the
--------------------
Owner Trustee, the Indenture Trustee or an Affiliate of either) organized under
the laws of the United States or any State, the deposits of which are insured to
the full extent permitted by law by the Bank Insurance Fund (currently
administered by the Federal Deposit Insurance Corporation), which is subject to
supervision and examination by federal or state authorities and whose short-term
deposits have been rated A-1+ by Standard & Poor's and P-1 by Moody's, or whose
unsecured long-term debt has been rated in one of the two highest rating
categories by Standard & Poor's
1-11
and Moody's in the case of unsecured long-term debt, or who shall otherwise be
acceptable to Standard & Poor's and Moody's.
"Eligible Investments" are any of the following:
--------------------
(i) direct obligations of, and obligations fully guaranteed by, the
United States of America, the Federal Home Loan Mortgage Corporation, the
Federal National Mortgage Association, or any agency or instrumentality of
the United States of America the obligations of which are backed by the
full faith and credit of the United States of America and which are
noncallable;
(ii) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by, or federal funds sold by any depository
institution or trust company (including the Indenture Trustee or any
Affiliate of the Indenture Trustee, acting in its commercial capacity)
incorporated under the laws of the United States of America or any State
thereof and subject to supervision and examination by federal and/or state
authorities, so long as, at the time of such investment or contractual
commitment providing for such investment, the commercial paper or other
short-term deposits of such depository institution or trust company (or, in
the case of a depository institution which is the principal subsidiary of a
holding company, the commercial paper or other short-term debt obligations
of such holding company) are rated at least A-1+ by Standard & Poor's and
at least P-1 by Moody's;
(iii) shares of an investment company registered under the Investment
Company Act of 1940, whose shares are registered under the Securities Act
of 1933 and have the highest credit rating then available from Moody's and
Standard & Poor's and whose only investments are in securities described in
clauses (i) and (ii) above;
(iv) repurchase obligations with respect to (A) any security
described in clause (i) above or (B) any other security issued or
guaranteed by an agency or instrumentality of the United States of America,
in either case entered into with a depository institution or trust company
(acting as principal) described in clause (ii) above;
(v) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any State thereof which have a credit rating of at least AAA by Standard &
Poor's and in one of the two highest rating categories from Moody's at the
time of such investment; provided, however, that securities issued by any
-------- -------
particular corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the corpus of the
Trust to exceed 10% of amounts held in the Collection Account; and
(vi) commercial paper having a rating of at least A-1+ from Standard
& Poor's and at least P-1 by Moody's at the time of such investment or
pledge as a security.
1-12
Notwithstanding the foregoing, securities that represent the right to receive
payments only of interest due on underlying obligations shall not be included as
Eligible Investments, whether or not such securities otherwise fall within (i)
through (vi) above.
Each of the Indenture Trustee and the Owner Trustee may trade with itself
or an Affiliate in the purchase or sale of such Eligible Investments.
"Eligible Servicer" means Conseco Finance Corp. or any Person qualified to
-----------------
act as Servicer of the Contracts under applicable federal and state laws and
regulations, which Person services not less than an aggregate of $100,000,000 in
outstanding principal amount of retail installment sales contracts and/or
consumer installment Contracts.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended.
"Errors and Omissions Protection Policy" means the employee errors and
--------------------------------------
omissions policy maintained by the Servicer or any similar replacement policy
covering errors and omissions by the Servicer's employees, and meeting the
requirements of Section 5.09, all as such policy relates to Contracts comprising
a portion of the corpus of the Trust.
"Event of Termination" has the meaning assigned in Section 7.01.
--------------------
"Fidelity Bond" means the fidelity bond maintained by the Servicer or any
-------------
similar replacement bond, meeting the requirements of Section 5.09, as such bond
relates to Contracts comprising a portion of the corpus of the Trust.
"Formula Principal Distribution Amount" means, as of any Distribution Date
-------------------------------------
(but subject to the last sentence of this definition), the sum of the following
amounts with respect to the related Monthly Period, in each case computed in
accordance with the method specified in the relevant Contract:
(i) all scheduled payments of principal due on each outstanding
Contract during the related Monthly Period as specified in the amortization
schedule at the time applicable thereto (after adjustments for previous
Partial Principal Prepayments and after any adjustment to such amortization
schedule by reason of any bankruptcy of an Obligor or similar proceeding or
any moratorium or similar waiver or grace period); plus
(ii) the Scheduled Principal Balance of each Contract which, during
the related Monthly Period, was purchased by the Originator pursuant to
this Agreement on account of a breach of a representation or warranty; plus
(iii) all Partial Principal Prepayments applied and all Principal
Prepayments in Full received on Contracts during the related Monthly
Period; plus
(iv) the aggregate Scheduled Principal Balance of all Contracts that
became Liquidated Contracts during the related Monthly Period; plus the
amounts of any reduction in the outstanding principal balance of a Contract
during such Monthly Period
1-13
ordered as a result of a bankruptcy or similar proceeding involving the
related Obligor; plus
(v) all collections in respect of principal on the Contracts received
during the current month up to and including the third Business Day prior
to such Distribution Date (but in no event later than the 10th day of the
month in which such Distribution Date occurs), minus
(vi) with respect to all Distribution Dates other than the
Distribution Date in July 2000, all collections of principal on the
Contracts received during the related Monthly Period up to and including
the third Business Day prior to the preceding Distribution Date (but in no
event later than the 10th day of the prior month).
"Formula Principal Shortfall" means, with respect to any Distribution Date,
---------------------------
the excess, if any, of the Formula Principal Distribution Amount for such
Distribution Date over the funds available to pay principal on the Notes
pursuant to Section 6.04(a) of this Agreement.
"GTFC-2" means Green Tree Finance Corp.-2, a Minnesota corporation.
------
"Indenture" means the Indenture, dated as of June 1, 2000, between the
---------
Trust and U.S. Bank Trust National Association, as Indenture Trustee, as the
same may be amended and supplemented from time to time.
"Indenture Trustee" means the Person acting as Trustee under the Indenture,
-----------------
its successors in interest and any successor Trustee under the Indenture.
"Independent" means, when used with respect to any specified Person, Xxxxxx
-----------
& Whitney LLP, or any Person who (i) is in fact independent of the Seller and
the Servicer, (ii) does not have any direct financial interest or any material
indirect financial interest in the Seller or the Servicer or in an Affiliate of
either and (iii) is not connected with the Seller or the Servicer as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions. Whenever it is provided herein that any Independent Person's
opinion or certificate shall be furnished to the Trustee, such opinion or
certificate shall state that the signatory has read this definition and is
Independent within the meaning set forth herein.
"Initial Contract" means a Contract identified as such on the List of
----------------
Contracts attached hereto.
"Initial Cutoff Date" means May 31, 2000.
-------------------
"Insurance Policy" means, with respect to each Contract, the policy of
----------------
insurance (if any) required to be maintained for the related Product by Section
5.09, and which, as provided in said Section 5.09, may be a blanket policy
maintained by the Servicer in accordance with the terms and conditions of said
Section 5.09.
1-14
"Insurance Proceeds" means proceeds paid by any insurer pursuant to any
------------------
insurance policy or contract.
"Interest Accrual Period" means, with respect to a Distribution Date, the
-----------------------
period from and including the preceding Distribution Date (or, in the case of
the first Distribution Date, from and including the Closing Date) to but
excluding such Distribution Date.
"Liquidated Contract" means any Defaulted Contract as to which the Servicer
-------------------
has determined that all amounts which it expects to recover from or on account
of such Contract through the date of disposition of the related Product have
been recovered; provided that any defaulted Contract in respect of which the
related Product has been realized upon and disposed of and the proceeds of such
disposition have been received shall be deemed to be a Liquidated Contract.
"Liquidation Expenses" means out-of-pocket expenses (exclusive of any
--------------------
overhead expenses) which are incurred by the Servicer in connection with the
liquidation of any Defaulted Contract, on or prior to the date on which the
related Product is disposed of, including, without limitation, legal fees and
expenses, and any related and unreimbursed expenditures for property taxes,
property preservation or restoration of the property to marketable condition.
"Liquidation Proceeds" means cash (including Insurance Proceeds and
--------------------
proceeds realized on the repurchase of any Product by the originating dealer for
breach of warranties) received in connection with the liquidation of Defaulted
Contracts, whether through repossession, foreclosure sale or otherwise,
including any rental income realized from any repossessed Product.
"List of Contracts" means the list identifying each Contract constituting
-----------------
part of the corpus of the Trust, which list (a) identifies each Contract and (b)
sets forth as to each Contract (i) the Cutoff Date Principal Balance, (ii) the
amount of monthly payments due from the Obligor, (iii) the Contract Rate and
(iv) the maturity date, the List of Contracts as of the Closing Date is attached
to the Assignment, and shall be revised on each Subsequent Transfer Date to add
the Subsequent Contracts then being transferred to the Trust.
"Minimum Purchase Price" has the meaning assigned in Section 8.01.
----------------------
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor thereto;
-------
provided that, if Moody's no longer has a rating outstanding on any Class of
Notes, then references herein to "Moody's" shall be deemed to refer to the NRSRO
then rating any Class of the Notes (or, if more than one such NRSRO is then
rating any Class of the Notes, to such NRSRO as may be designated by the
Servicer), and references herein to ratings by or requirements of Moody's shall
be deemed to have the equivalent meanings with respect to ratings by or
requirements of such NRSRO.
"Monthly Period" means a calendar month during the term of this Agreement.
--------------
With respect to a Distribution Date, "related Monthly Period" means the calendar
month immediately preceding the month in which the Distribution Date occurs.
1-15
"Monthly Report" has the meaning assigned in Section 5.14.
--------------
"Monthly Servicing Fee" means, as of any Distribution Date, one-twelfth of
---------------------
the product of 0.75% and the Pool Scheduled Principal Balance for the
immediately preceding Distribution Date.
"Net Liquidation Loss" means, as to a Liquidated Contract, the amount, if
--------------------
any, by which (a) the outstanding principal balance of such Liquidated Contract
plus accrued and unpaid interest thereon to the date on which such Liquidated
Contract became a Liquidated Contract exceeds (b) the Net Liquidation Proceeds
for such Liquidated Contract.
"Net Liquidation Proceeds" means, as to a Liquidated Contract, all
------------------------
Liquidation Proceeds received on or prior to the last day of the Monthly Period
in which such Contract became a Liquidated Contract, net of Liquidation
Expenses.
"Note Distribution Account" means the account designated as such,
-------------------------
established and maintained pursuant to Section 6.01(b).
"Note Majority" means, as to each Class of Notes, Holders of Notes
-------------
representing a majority of the Principal Balance of such Class of Notes.
"Note Pool Factor" means, with respect to any Distribution Date and each
----------------
Class of Notes, an eight-digit decimal figure equal to the outstanding principal
balance of such class of Notes as of such Distribution Date (after giving effect
to all distributions on such date) divided by the Original Principal Balance of
such Class of Notes as of the Closing Date.
"Note Principal Balance" means, as of any Distribution Date, the sum of the
----------------------
Class A Principal Balance, the Class M-1 Principal Balance, the Class M-2
Principal Balance and the Class B Principal Balance.
"Notes" means the Class A Notes, Class M Notes or Class B Notes.
-----
"NRSRO" means any nationally recognized statistical rating organization.
-----
"MN UCC" means the Uniform Commercial Code as in effect in the State of
------
Minnesota.
"Obligor" means a Product buyer or other Person who is indebted under a
-------
Contract.
"Officer's Certificate" means, with respect to any Person, a certificate
---------------------
signed by the Chairman of the Board, President or any Vice President of such
Person and delivered to the Owner Trustee and/or the Trustee as applicable.
"Opinion of Counsel" means a written opinion of counsel, who may, except as
------------------
expressly provided herein, be salaried counsel for the Servicer, acceptable to
the Indenture Trustee, the Owner Trustee and the Seller.
1-16
"Original Class A-1 Principal Balance" means $170,800,000.
------------------------------------
"Original Class A-2 Principal Balance" means $25,000,000.
------------------------------------
"Original Class A-3 Principal Balance" means $36,600,000.
------------------------------------
"Original Class M-1 Principal Balance" means $14,000,000.
------------------------------------
"Original Class M-2 Principal Balance" means $11,200,000.
------------------------------------
"Original Class B Principal Balance" means $16,800,000.
----------------------------------
"Original Class Principal Balance" means, with respect to any Class, the
--------------------------------
Original Class A-1 Principal Balance, the Original Class A-2 Principal Balance,
the Original Class A-3 Principal Balance, the Original Class M-1 Principal
Balance, the Original Class M-2 Principal Balance or the Original Class B
Principal Balance, as appropriate.
"Original Note Principal Balance" means the sum of the Original Class A-1
-------------------------------
Principal Balance, the Original Class A-2 Principal Balance, the Original Class
A-3 Principal Balance, the Original Class M-1 Principal Balance, the Original
Class M-2 Principal Balance and the Original Class B Principal Balance.
"Overcollateralization Amount" means, for any Distribution Date, the excess
----------------------------
of (A) the sum of the Pool Scheduled Principal Balance plus the Pre-Funded
Amount over (B) the Note Principal Balance minus the amount actually deposited
in the Note Distribution Account on such Distribution Date in respect of
principal on the Notes pursuant to Sections 6.04(a)(viii) and (xii).
"Owner Trustee" means Wilmington Trust Company, acting not individually but
-------------
solely as trustee, or its successor in interest, and any successor appointed as
provided in the Trust Agreement.
"Partial Principal Prepayment" means (a) any Principal Prepayment other
----------------------------
than a Principal Prepayment in Full and (b) any cash amount deposited in the
Collection Account pursuant to the proviso in Section 3.05(a).
"Person" means any individual, corporation, partnership, limited liability
------
company, joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"Pool Scheduled Principal Balance" means, as of any Distribution Date, the
--------------------------------
aggregate Scheduled Principal Balance of all Contracts that were outstanding
during the related Monthly Period.
"Post-Funding Distribution Date" means the first Distribution Date after
------------------------------
the last day of the Pre-Funding Period.
1-17
"Pre-Funded Amount" means with respect to any date of determination, the
-----------------
amount then on deposit in the Pre-Funding Account, after giving effect to any
sale of Subsequent Contracts to the Trust on such date.
"Pre-Funding Account" means the account so designated, established and
-------------------
maintained pursuant to Section 6.06.
"Pre-Funding Period" means the period beginning on the Closing Date and
------------------
ending on the earliest of (a) the date on which the amount on deposit in the
Pre-Funding Account is less than $10,000.00, (b) the close of business on August
14, 2000, or (c) the date on which a Servicer Termination Event occurs.
"Principal Prepayment" means a payment or other recovery of principal on a
--------------------
Contract (exclusive of Liquidation Proceeds) which is received in advance of its
scheduled due date and applied upon receipt (or, in the case of a Partial
Principal Prepayment, upon the next Due Date on such Contract) to reduce the
outstanding principal amount due on such Contract prior to the date or dates on
which such principal amount is due.
"Principal Prepayment in Full" means any Principal Prepayment of the entire
----------------------------
principal balance of a Contract.
"Realized Losses" means, with respect to any Distribution Date, the
---------------
aggregate Net Liquidation Losses of all Contracts that become Liquidated
Contracts during the related Monthly Period.
"Record Date" means the Business Day immediately preceding the related
-----------
Distribution Date.
"Related Documents" means the Transfer Agreement, the Trust Agreement, the
-----------------
Indenture, the Administration Agreement, the Certificates, the Notes and the
Underwriting Agreement. The Related Documents executed by any party are
referred to herein as "such party's Related Documents," "its Related Documents"
or by a similar expression.
"Repurchase Price" means, with respect to a Contract to be repurchased
----------------
pursuant to Section 3.05 or Section 5.20, an amount equal to (a) the remaining
principal amount outstanding on such Contract, plus (b) interest at the Contract
Rate on such Contract from the end of the Monthly Period with respect to which
the Obligor last made a payment through the end of the Monthly Period during
which such repurchase occurs.
"Reserve Account" means the account designated as the Reserve Account in,
---------------
and which is established and maintained pursuant to, Section 6.08.
"Reserve Account Excess Amount" means, with respect to any Distribution
-----------------------------
Date, an amount equal to the excess, if any, of:
1-18
(a) the amount of cash or other immediately available funds in the
Reserve Account on the Distribution Date, prior to giving effect to any
withdrawals from the Reserve Account relating to that Distribution Date,
over
(b) the Specified Reserve Balance with respect to that Distribution
Date.
"Responsible Officer" means, with respect to the Owner Trustee, the
-------------------
chairman and any vice chairman of the board of directors, the president, the
chairman and vice chairman of any executive committee of the board of directors,
every vice president, assistant vice president, the secretary, every assistant
secretary, cashier or any assistant cashier, controller or assistant controller,
the treasurer, every assistant treasurer, every trust officer, assistant trust
officer and every other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by persons who at the time shall
be such officers, respectively, or to whom a corporate trust matter is referred
because of knowledge of, familiarity with, and authority to act with respect to
a particular matter.
"Sale Date" means the Distribution Date as of which the corpus of the Trust
---------
is sold pursuant to Section 10.04 of the Indenture or Section 9.03 of the Trust
Agreement.
"Scheduled Principal Balance" means, as to any Contract and any
---------------------------
Distribution Date or the Cutoff Date, the principal balance of such Contract as
of the Due Date in the Monthly Period immediately preceding such Distribution
Date or as of the Due Date immediately preceding the Cutoff Date, as the case
may be, as specified in the amortization schedule at the time relating thereto
(before any adjustment to such amortization schedule by reason of any bankruptcy
of an Obligor or similar proceeding or any moratorium or similar waiver or grace
period) after giving effect to any previous Partial Principal Prepayments and to
the payment of principal due on such Due Date and irrespective of any
delinquency in payment by, or extension granted to, the related Obligor.
"Securities" means the Notes and the Certificates.
----------
"Securityholders" means the Noteholders and the Certificateholders.
---------------
"Service Transfer" has the meaning assigned in Section 7.02.
"Servicer" means Conseco Finance Corp., a Delaware corporation, until any
--------
Service Transfer hereunder and thereafter means the new servicer appointed
pursuant to Article VII.
"Servicer Advance" means, with respect to any Distribution Date, the
----------------
amount, if any, deposited by the Servicer in the Collection Account pursuant to
Section 5.13.
"Servicing Officer" means any officer of the Servicer involved in, or
-----------------
responsible for, the administration and servicing of Contracts whose name
appears on a list of servicing officers appearing in an Officer's Certificate
furnished to the Trustee by the Servicer, as the same may be amended from time
to time.
1-19
"Sixty-Day Delinquency Ratio" means, for any Distribution Date, a fraction,
---------------------------
expressed as a percentage, the numerator of which is the aggregate of the
outstanding balances of all Contracts that were delinquent 60 days or more as of
the end of the prior Monthly Period (including such Contracts in respect of
which the related Product has been foreclosed upon but is still in inventory),
and the denominator of which is the Pool Scheduled Principal Balance of the
Contracts for such Distribution Date.
"Specified Reserve Balance" means
-------------------------
(i) prior to the Distribution Date in July 2002, $7,000,000;
(ii) beginning on the Distribution Date in July 2002, $5,600,000,
provided that:
(a) the Average Sixty-Day Delinquency Ratio as of the
Distribution Date in July 2002 does not exceed 10%;
(b) the Cumulative Realized Loss Ratio as of the Distribution
Date in July 2002 does not exceed 2.50%; and
(c) Conseco Finance or an Affiliate is the Servicer on the
Distribution Date in July 2002.
"Standard & Poor's" means Standard & Poor's Ratings Service, or any
-----------------
successor thereto; provided that if Standard & Poor's no longer has a rating
outstanding on any Class of Notes or Certificates, then references herein to
"Standard & Poor's" shall be deemed to refer to the NRSRO then rating any Class
of the Notes or Certificates (or, if more than one such NRSRO is then rating any
Class of the Notes or Certificates, to such NRSRO as may be designated by the
Servicer), and references herein to ratings by or requirements of Standard &
Poor's shall be deemed to have the equivalent meanings with respect to ratings
by or requirements of such NRSRO.
"Stepdown Date" means the first Payment Date on which the Class A-1
-------------
Principal Balance is less than or equal to $22,400,000.
"Subsequent Cut-off Date" means the date specified as such in the
-----------------------
applicable Subsequent Transfer Instrument.
"Subsequent Contract" means a Contract sold by the Seller to the Trust
-------------------
pursuant to Section 2.03, such Contract being identified as such in the
Subsequent Transfer Instrument.
"Subsequent Transfer Date" means, with respect to each Subsequent Transfer
------------------------
Instrument, the date on which the related Subsequent Contracts are sold to the
Trust.
"Subsequent Transfer Instrument" means each Subsequent Transfer Instrument
------------------------------
dated as of a Subsequent Transfer Date executed by the Owner Trustee, the
Originator and the Seller
1-20
substantially in the form of Exhibit F, by which the Seller sells Subsequent
Contracts to the Trust.
"Total Note Principal Distribution Amount" means, for any Distribution
----------------------------------------
Date, the sum of:
(i) the Formula Principal Distribution Amount for such Distribution
Date, plus
(ii) the Unpaid Formula Principal Shortfall, if any, for such
Distribution Date, plus
(iii) the Additional Principal Distribution Amount, minus
(iv) for any Distribution Date beginning with the July 2002
Distribution Date, so long as no Trigger Event exists, the amount, if any,
by which the Overcollateralization Amount would otherwise exceed 10% of the
Pool Scheduled Principal Balance.
"Total Required Payment" means, with respect to any Distribution Date, the
----------------------
sum of the amounts distributable pursuant to clauses 6.04(a)(i) through
6.04(a)(vii) without regard to the limitation of the Amount Available for such
Distribution Date plus, on the Final Scheduled Distribution Date for any Class
of Notes, the outstanding principal balance of such Class.
"Trigger Event" exists for any Distribution Date if (i) the Average Sixty-
-------------
Day Delinquency Ratio Test is not satisfied or (ii) the Cumulative Realized
Losses Test is not satisfied.
"Trust" means the Conseco Finance Recreational Enthusiast Consumer Trust
-----
2000-A.
"Trust Accounts" means the Collection Account, the Note Distribution
--------------
Account, the Certificate Distribution Account, the Pre-Funding Account, the
Reserve Account and the Class B Reserve Account.
"Trust Agreement" means the Trust Agreement dated as of June 1, 2000
---------------
between the Seller and the Owner Trustee, as the same may be amended and
supplemented from time to time.
"Trust Property" means the property conveyed to the Trust pursuant to
--------------
Section 2.01(a) and Section 2.03.
"Uncollectible Advance" means, with respect to any Determination Date, the
---------------------
portion of any Servicer Advances which the Servicer has determined in good faith
will not be ultimately recoverable by the Servicer from insurance policies on
the Product, the Obligor or out of Net Liquidation Proceeds. The determination
by the Servicer that it has made an Uncollectible Advance shall be evidenced by
an Officer's Certificate delivered to the Trustee.
"Underwriters" means Credit Suisse First Boston Corporation and Banc of
------------
America Securities LLC.
1-21
"Underwriting Agreement" means the Underwriting Agreement and related Terms
----------------------
Agreement, each dated June 27, 2000, among the Originator, the Seller and the
Underwriters.
"Unpaid Class A Interest Shortfall" means as to any Distribution Date, the
---------------------------------
sum of Unpaid Class A-1 Interest Shortfall, Unpaid Class A-2 Interest Shortfall
and Unpaid Class A-3 Interest Shortfall for such Distribution Date.
"Unpaid Class A-1 Interest Shortfall" means, as to any Distribution Date,
-----------------------------------
the remainder, if any, of (x) the Class A-1 Interest Shortfall, if any, for the
immediately prior Distribution Date, plus (y) the Unpaid Class A-1 Interest
Shortfall, if any, determined as of such immediately prior Distribution Date,
minus (z) the amount distributed to the Holders of Class A-1 Notes on account of
any Unpaid Class A-1 Interest Shortfall on such immediately prior Distribution
Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the Class A-1 Interest Rate on such remainder from such
immediately prior Distribution Date to the current Distribution Date.
"Unpaid Class A-2 Interest Shortfall" means, as to any Distribution Date,
-----------------------------------
the remainder, if any, of (x) the Class A-2 Interest Shortfall, if any, for the
immediately prior Distribution Date, plus (y) the Unpaid Class A-2 Interest
Shortfall, if any, determined as of such immediately prior Distribution Date,
minus (z) the amount distributed to the Holders of Class A-2 Notes on account of
any Unpaid Class A-2 Interest Shortfall on such immediately prior Distribution
Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the Class A-2 Interest Rate on such remainder from such
immediately prior Distribution Date to the current Distribution Date.
"Unpaid Class A-3 Interest Shortfall" means, as to any Distribution Date,
-----------------------------------
the remainder, if any, of (x) the Class A-3 Interest Shortfall, if any, for the
immediately prior Distribution Date, plus (y) the Unpaid Class A-3 Interest
Shortfall, if any, determined as of such immediately prior Distribution Date,
minus (z) the amount distributed to the Holders of Class A-3 Notes on account of
any Unpaid Class A-3 Interest Shortfall on such immediately prior Distribution
Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the Class A-3 Interest Rate on such remainder from such
immediately prior Distribution Date to the current Distribution Date.
"Unpaid Class B Interest Shortfall" means, as to any Distribution Date, the
---------------------------------
remainder, if any, of (x) the Class B Interest Shortfall, if any, for the
immediately prior Distribution Date, plus (y) the Unpaid Class B Interest
Shortfall, if any, determined as of such immediately prior Distribution Date,
minus (z) the amount distributed to the Holders of Class B Notes on account of
any Unpaid Class B Interest Shortfall on such immediately prior Distribution
Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the Class B Interest Rate on such remainder from such
immediately prior Distribution Date to the current Distribution Date.
"Unpaid Class M-1 Interest Shortfall" means, as to any Distribution Date,
-----------------------------------
the remainder, if any, of (x) the Class M-1 Interest Shortfall, if any, for the
immediately prior Distribution Date, plus (y) the Unpaid Class M-1 Interest
Shortfall, if any, determined as of such immediately prior
1-22
Distribution Date, minus (z) the amount distributed to the Holders of Class M-1
Notes on account of any Unpaid Class M-1 Interest Shortfall on such immediately
prior Distribution Date, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class M-1 Interest Rate on such remainder from such
immediately prior Distribution Date to the current Distribution Date.
"Unpaid Class M-2 Interest Shortfall" means, as to any Distribution Date,
-----------------------------------
the remainder, if any, of (x) the Class M-2 Interest Shortfall, if any, for the
immediately prior Distribution Date, plus (y) the Unpaid Class M-2 Interest
Shortfall, if any, determined as of such immediately prior Distribution Date,
minus (z) the amount distributed to the Holders of Class M-2 Notes on account of
any Unpaid Class M-2 Interest Shortfall on such immediately prior Distribution
Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the Class M-2 Interest Rate on such remainder from such
immediately prior Distribution Date to the current Distribution Date.
"Unpaid Formula Principal Shortfall" means, as of any Distribution Date,
----------------------------------
the remainder, if any, of (x) the Formula Principal Shortfall, if any, for the
immediately prior Distribution Date, plus (y) the Unpaid Formula Principal
Shortfall, if any, determined as of such immediately prior Distribution Date,
minus (z) the amount included, if any, in excess of the Formula Principal
Distribution Amount for such immediately prior Distribution Date that was
included in the Total Note Principal Distribution Amount actually deposited in
the Note Distribution Account on such immediately prior Distribution Date.
"Weighted Average Contract Rate" means, as to any Distribution Date, the
------------------------------
weighted average (determined by Scheduled Principal Balance) of the Contract
Rates of all Contracts that were outstanding during the prior related Monthly
Period.
1-23
ARTICLE II
TRANSFER OF CONTRACTS
SECTION 2.01. Transfer of Contracts.
---------------------
(a) Subject to the terms and conditions of this Agreement, the Seller
hereby irrevocably and unconditionally transfers, assigns, sets over and
otherwise conveys to the Trust by execution of an Assignment substantially in
the form of Exhibit A hereto all right, title and interest of the Seller in and
to (1) the Initial Contracts (including, without limitation, the Collateral
Security), and all moneys payable thereon or in respect to the Initial
Contracts, including any liquidation proceeds therefrom but excluding payments
due on the Initial Contracts prior to the Initial Cutoff Date, (2) the Insurance
Policies on any Products securing an Initial Contract for the benefit of the
creditor of such Initial Contract and all blanket insurance policies to the
extent they relate to the Initial Contracts, (3) the Transfer Agreement and each
Subsequent Transfer Agreement, (4) the Errors and Omissions Protection Policy as
such policy relates to the Contracts, (5) all items contained in the Contract
Files, (6) the Trust Accounts and all funds on deposit therein from time to time
and all investments and proceeds thereof (including all income thereon), and (7)
all proceeds and products of the foregoing.
(b) Although the parties intend that the conveyance pursuant to this
Agreement of the Seller's right, title and interest in and to the Contracts and
the Collateral Security pursuant to this Agreement and each Subsequent Transfer
Instrument shall constitute a purchase and sale and not a pledge of security for
loans from the Certificateholders and/or the Noteholders, if such conveyances
are deemed to be a pledge of security for loans from the Certificateholders, the
Noteholders or any other Persons (the "Secured Obligations"), the parties intend
that the rights and obligations of the parties to the Secured Obligations shall
be established pursuant to the terms of this Agreement. The parties also intend
and agree that the Seller shall be deemed to have granted to the Trust, and the
Seller does hereby grant to the Trust, a perfected first-priority security
interest in the items designated in Section 2.01(a)(1) through 2.01(a)(6) above,
and all proceeds thereof, to secure the Secured Obligations, and that this
Agreement shall constitute a security agreement under applicable law. If the
trust created by this Agreement terminates prior to the satisfaction of the
claims of any Person under any Certificates, any Notes or the Secured
Obligations, the security interest created hereby shall continue in full force
and effect and the Owner Trustee shall be deemed to be the collateral agent for
the benefit of such Person.
SECTION 2.02. Conditions to Acceptance by Owner Trustee.
-----------------------------------------
As conditions to the Owner Trustee's execution and delivery of the Notes on
behalf of the Trust and the execution, authentication and delivery of the
Certificates on behalf of the Trust on the Closing Date, the Owner Trustee on
behalf of the Trust shall have received the following on or before the Closing
Date:
(a) The List of Contracts, certified by the Chairman of the Board,
President or any Vice President of the Originator (which certification may
be part of the Assignment delivered pursuant to Section 2.02(f)).
2-1
(b) A letter from PricewaterhouseCoopers LLP or another nationally
recognized accounting firm, stating that such firm has reviewed the Initial
Contracts on a statistical sampling basis and, based on such sampling,
concluding that, except with respect to those Initial Contracts so
specified in the letter, the Contracts conform in all material respects to
the List of Contracts, to a confidence level of 97.5%, with an error rate
generally not in excess of 1.8%.
(c) Copies of resolutions of the board of directors of the Seller and
the Originator or of the executive committee of the board of directors of
the Seller and the Originator approving the execution, delivery and
performance of this Agreement, its Related Documents and the transactions
contemplated hereunder, certified in each case by the secretary or an
assistant secretary of the Seller and the Originator, as applicable.
(d) Officially certified recent evidence of due incorporation and good
standing of the Seller under the laws of the State of Minnesota and of the
Servicer under the laws of the State of Delaware.
(e) Evidence of filing with the Secretary of State of Minnesota of (i)
a UCC-1 financing statement, executed by the Originator as debtor, naming
the Seller as secured party and listing the Contracts as collateral, and
(ii) a UCC-1 financing statement, executed by the Seller as debtor, naming
the Trust as secured party and listing the Contracts as collateral.
(f) An executed copy of the Assignment substantially in the form of
Exhibit A hereto.
(g) Evidence of continued coverage of the Servicer under the Errors
and Omissions Protection Policy.
(h) Evidence of deposit in the Collection Account of all funds
received with respect to the Initial Contracts prior to the Closing Date
which were due on or after the Initial Cutoff Date, together with an
Officer's Certificate of the Servicer to the effect that such amount is
correct.
(i) An Officer's Certificate of the Originator confirming that the
Originator's internal audit department has reviewed the original or a copy
of each Contract and each Contract File, that each Contract and Contract
File conforms in all material respects with the List of Contracts and that
each Contract File is complete in all material respects and that each
Product securing a Contract is covered by an Insurance Policy as required
by Section 3.02(f).
(j) Evidence of the deposit of $22,667,397.69 in the Pre-Funding
Account.
(k) Such other documents and certificates as the Trust may request.
2-2
SECTION 2.03. Conveyance of the Subsequent Contracts.
--------------------------------------
(a) Subject to the conditions set forth in paragraph (b) below, in
consideration of the Indenture Trustee's delivery on the related Subsequent
Transfer Dates to or upon the order of the Seller of the purchase price
therefor, the Seller shall on any Subsequent Transfer Date sell, transfer,
assign, set over and convey to the Trust by execution and delivery of a
Subsequent Transfer Instrument, all the right, title and interest of the Seller
in and to the Subsequent Contracts identified on the List of Contracts attached
to the Subsequent Transfer Instrument, including all rights to receive payments
on or with respect to the Subsequent Contracts due after the related Subsequent
Cut-off Date, all items with respect to such Subsequent Contracts in the related
Contract Files, and all rights of the Seller under the related Subsequent
Transfer Agreement. The transfer to the Trust by the Seller of the Subsequent
Contracts shall be absolute and is intended by the Seller, the Owner Trustee,
the Indenture Trustee, the Noteholders and the Certificateholders to constitute
and to be treated as a sale of the Subsequent Contracts by the Seller to the
Trust.
The purchase price paid by the Trust shall be one hundred percent (100%) of
the aggregate Cut-off Date Principal Balance of such Subsequent Contracts. The
purchase price of Subsequent Contracts shall be paid solely from amounts in the
Pre-Funding Account.
(b) The Seller shall transfer to the Trust the Subsequent Contracts, and
the Trust shall release funds equal to the purchase price therefor from the Pre-
Funding Account only upon the satisfaction of each of the following conditions
on or prior to the related Subsequent Transfer Date:
(i) the Seller shall have provided the Owner Trustee and the
Indenture Trustee with an Addition Notice, with a copy of such Addition
Notice to S&P and Xxxxx'x, at least five Business Days prior to the
Subsequent Transfer Date and shall have provided any information reasonably
requested by the Owner Trustee and the Indenture Trustee with respect to
the Subsequent Contracts;
(ii) the Seller shall have delivered to the Owner Trustee a duly
executed Subsequent Transfer Instrument substantially in the form of
Exhibit F, which shall include a List of Contracts identifying the related
Subsequent Contracts;
(iii) as of each Subsequent Transfer Date, as evidenced by delivery of
the Subsequent Transfer Instrument, the Seller shall not be insolvent nor
shall it have been made insolvent by such transfer nor shall it be aware of
any pending insolvency;
(iv) the Pre-Funding Period shall not have ended;
(v) the Seller shall have delivered to the Trustee an Officer's
Certificate, substantially in the form attached hereto as Exhibit G,
confirming the satisfaction of each condition precedent and the
representations specified in this Section 2.03 and in Sections 3.01, 3.02,
3.03 and 3.04; and
2-3
(vi) the Seller and the Originator shall have delivered to the Trustee
Opinions of Counsel addressed to S&P, Xxxxx'x, the Owner Trustee and the
Indenture Trustee with respect to the transfer of the Subsequent Contracts
substantially in the form of the Opinions of Counsel delivered on the
Closing Date regarding certain bankruptcy, corporate and tax matters.
(c) Before the last day of the Pre-Funding Period, the Seller shall deliver
to the Trustee evidence that, as a result of the purchase by the Trust of the
Subsequent Contracts, none of the ratings assigned to the Securities as of the
Closing Date by S&P or Xxxxx'x will be reduced, withdrawn or qualified.
(d) Although the parties intend that the conveyance pursuant to each
Subsequent Transfer Instrument of the Seller's right, title and interest in and
to the related Subsequent Contracts shall constitute a purchase and sale and not
a pledge of security for loans from the Certificateholders and/or the
Noteholders, if such conveyance is deemed to be a pledge of security for Secured
Obligations, the parties intend that the rights and obligations of the parties
to the Secured Obligations shall be established pursuant to the terms of this
Agreement and the related Subsequent Transfer Instrument and that the Seller
shall be deemed to have granted to the Trust, and the Seller hereby grant to the
Trust, a perfected first-priority security interest in the items designated in
the related Subsequent Transfer Instrument, and all proceeds thereof, to secure
the Secured Obligations, and that this Agreement and the related Subsequent
Transfer Instrument shall constitute a security agreement under applicable law.
If the Trust terminates prior to the satisfaction of the claims of any Person
under any Certificate, any Note or the Secured Obligations, the security
interest created hereby shall continue in full force and effect and the Owner
Trustee shall be deemed to be the collateral agent for the benefit of such
Person.
2-4
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of the Seller and the Originator makes the following representations
and warranties, effective as of the Closing Date, on which the Trust will rely
in accepting the Contracts and the other Trust Property in trust and on which
the Owner Trustee relies in executing and delivering, on behalf of the Trust,
the Certificates and the Notes. The repurchase obligation of the Originator set
forth in Section 3.05 constitutes the sole remedy available to the Trust, the
Owner Trustee, the Indenture Trustee, and the Securityholders for a breach of a
representation or warranty of the Originator set forth in the Officer's
Certificate delivered pursuant to Section 2.02(i) or Section 3.02, 3.03 or 3.04
of this Agreement.
SECTION 3.01. Representations and Warranties Regarding the Seller and
-------------------------------------------------------
Originator and Covenants of the Originator.
------------------------------------------
The representations and warranties set forth in this Section 3.01 shall
survive delivery by the Seller of the Contracts and the Contract Files. As
promptly as practicable, but in any event within 60 days of its discovery or its
receipt of notice from any Person of a material breach of any representation or
warranty in this Section 3.01, the Originator shall cure such breach in all
material respects.
(a) Organization and Good Standing. Each of the Seller and the Originator,
------------------------------
as applicable, is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has the
corporate power to own its assets and to transact the business in which it is
currently engaged. Each of the Seller and the Originator, as applicable, is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Seller.
(b) Authorization; Binding Obligations. Each of the Seller and the
----------------------------------
Originator has the power and authority to make, execute, deliver and perform
this Agreement and its Related Documents and all of the transactions
contemplated under this Agreement and thereunder and to sell and assign the
Trust Property to be sold and assigned to the Trust by it and has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement and its Related Documents. When executed and delivered, this
Agreement and its Related Documents will constitute the legal, valid and binding
obligations of each of the Seller and the Originator enforceable in accordance
with their terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by the availability of equitable remedies.
(c) No Consent Required. Neither the Seller nor the Originator is required
-------------------
to obtain the consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with
3-1
the execution, delivery, performance, validity or enforceability of this
Agreement.
(d) No Violations. The execution, delivery and performance by the Seller
-------------
and the Originator of this Agreement and its Related Documents and the
fulfillment of their terms will not violate any provision of any existing law or
regulation or any order or decree of any court or the related Articles of
Incorporation or Bylaws of the Seller and the Originator, or constitute a
material breach of any mortgage, indenture, contract or other agreement to which
either the Seller or the Originator is a party or by which either the Seller or
the Originator may be bound.
(e) Litigation. No litigation or administrative proceeding of or before
----------
any court, tribunal or governmental body is currently pending, or to the
knowledge of the Seller and the Originator threatened, against the Seller and
the Originator or any of its properties or with respect to this Agreement, the
Related Documents, or the Securities which, if adversely determined, would in
the opinion of the Seller and the Originator have a material adverse effect on
the transactions contemplated by this Agreement and Related Documents.
(f) Licensing. Each of the Seller and the Originator is duly registered
---------
as a finance company in each state in which Contracts were originated, to the
extent such registration is required by applicable law.
(g) Chief Executive Office. The chief executive office of each of the
----------------------
Seller and the Originator is at 1100 Landmark Towers, 000 Xx. Xxxxx Xxxxxx, Xx.
Xxxx, Xxxxxxxxx 00000-0000.
(h) Absolute Sale. The Seller intends that the transfer of Contracts and
-------------
the Collateral Security constitute a complete and absolute sale, removing the
Contracts and the Collateral Security from the Seller's estate, for purposes of
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended.
(i) No Default. Neither the Seller nor the Originator is in default with
----------
respect to any order or decree of any court or any order, regulation or demand
of any federal, state, municipal or governmental agency, which default would
materially and adversely affect its condition (financial or other) or operations
or its properties or the consequences of which would materially and adversely
affect its performance hereunder and under its other Related Documents. Neither
the Seller nor the Originator is in default under any agreement involving
financial obligations or on any outstanding obligation which would materially
adversely impact its financial condition or operations or legal documents
associated with the transaction contemplated by this Agreement or the other
Related Documents.
SECTION 3.02. Representations and Warranties Regarding Each Contract.
------------------------------------------------------
The Originator has made the following representations and warranties to the
Seller in the Transfer Agreement, which representations and warranties the
Seller has assigned to the Trust for the benefit of the Noteholders and the
Certificateholders, as of the Closing Date with respect to each Initial Contract
and, as of each Subsequent Transfer Date, with respect to each Subsequent
Contract identified on the List of Contracts attached to the related Subsequent
Transfer Instrument:
3-2
(a) List of Contracts. The information set forth in the List of Contracts
-----------------
is true and correct as of its date.
(b) Payments. The most recent scheduled payment was made by or on behalf
--------
of the Obligor (without any advance from the Seller, the Originator or any
Person acting at the request of the Seller or the Originator) or was not
delinquent for more than 59 days.
(c) No Waivers. The terms of the Contract have not been waived, altered
----------
or modified in any respect, except by instruments or documents identified in the
Contract File.
(d) Binding Obligation. The Contract is the legal, valid and binding
------------------
obligation of the Obligor thereunder and is enforceable in accordance with its
terms, except as such enforceability may be limited by laws affecting the
enforcement of creditors' rights generally.
(e) No Defenses. The Contract is not subject to any right of rescission,
-----------
setoff, counterclaim or defense, including the defense of usury, and the
operation of any of the terms of the Contract or the exercise of any right
thereunder will not render the Contract unenforceable in whole or in part or
subject to any right of rescission, setoff, counterclaim or defense, including
the defense of usury, and no such right of rescission, setoff, counterclaim or
defense has been asserted with respect thereto.
(f) Insurance Coverage. The Product securing the Contract is covered by
------------------
an Insurance Policy to the extent (if any) required by Section 5.09. All
premiums due as of the Closing Date on such insurance have been paid in full.
(g) Origination. The Contract was originated by a dealer of recreational
-----------
vehicles, motorcycles or marine products, or by the Originator, in the regular
course of its business and, if originated by a dealer, was purchased by the
Originator in the regular course of its business.
(h) Lawful Assignment. The Contract was not originated in and is not
-----------------
subject to the laws of any jurisdiction whose laws would make the transfer of
the Contract or an interest therein pursuant to the Transfer Agreement or this
Agreement, or pursuant to transfers of the Securities, unlawful or render the
Contract unenforceable.
(i) Compliance with Law. At the date of origination of the Contract, all
-------------------
requirements of any federal and state laws, rules and regulations applicable to
the Contract, including, without limitation, usury, truth in lending and equal
credit opportunity laws, have been complied with, and the Originator shall for
at least the period of this Agreement, maintain in its possession, available for
the Owner Trustee's inspection, and shall deliver to the Owner Trustee upon
demand, evidence of compliance with all such requirements. Such compliance is
not affected by the Trust's ownership of the Contract.
(j) Contract in Force. The Contract has not been satisfied or
-----------------
subordinated in whole or in part or rescinded, and the Product securing the
Contract has not been released from the lien of the Contract in whole or in
part.
3-3
(k) Valid Security Interest. The Contract creates a valid and enforceable
-----------------------
perfected first priority security interest in favor of the Originator in the
Product covered thereby as security for payment of the Cutoff Date Principal
Balance of such Contract. The Originator has assigned all of its right, title
and interest in such Contract, including the security interest in the Product
covered thereby, to the Seller. The Seller has and will have a valid and
perfected and enforceable first priority security interest in such Contract and
Product.
(l) Capacity of Parties. The signature(s) of the Obligor(s) on the
-------------------
Contract are genuine and all parties to the Contract had full legal capacity to
execute the Contract.
(m) Good Title. In the case of a Contract purchased from a dealer, the
----------
Originator purchased the Contract for fair value and took possession thereof in
the ordinary course of its business, without knowledge that the Contract was
subject to a security interest. The Originator has not sold, assigned or
pledged the Contract to any person and prior to the transfer of the Contract by
the Originator to the Seller, the Originator had good and marketable title
thereto free and clear of any encumbrance, equity, contract, pledge, charge,
claim or security interest and was the sole owner thereof with full right to
transfer the Contract to the Seller. No financing statement describing or
referring to any Contract (other than any financing statement naming the Seller
as secured party, or filed by the Originator as secured party to perfect its
interest in a Contract purchased from a dealer) is on file in any public office.
(n) No Defaults. There was no default, breach, violation or event
-----------
permitting acceleration existing under the Contract and no event which, with
notice and the expiration of any grace or cure period, would constitute such a
default, breach, violation or event permitting acceleration under such Contract
(except payment delinquencies permitted by clause (b) above). The Originator has
not waived any such default, breach, violation or event permitting acceleration
except payment delinquencies permitted by clause (b) above. As of the Closing
Date, the related Product is, to the best of the Originator's knowledge, free of
damage and in good repair.
(o) No Liens. There are, to the best of the Originator's knowledge, no
--------
liens or claims which have been filed for work, labor or materials affecting the
Product securing the Contract which are or may be liens prior to, or equal or
coordinate with, the lien of the Contract.
(p) Equal Installments. Each Contract has a fixed Contract Rate and
------------------
provides for substantially level monthly payments which fully amortize the
contract over its term.
(q) Enforceability. The Contract contains customary and enforceable
--------------
provisions so as to render the rights and remedies of the holder thereof
adequate for the realization against the collateral of the benefits of the
security provided thereby.
(r) One Original. There is only one original executed Contract (other
------------
than an original in the possession of the relevant Obligor), which Contract has
been delivered to the Trust or its custodian on or before the Closing Date. Each
Contract has been stamped to reflect the assignment of such Contract to the
Trust.
3-4
(s) Notation of Security Interest. With respect to each Contract, if the
-----------------------------
related Product is located in a state in which notation of a security interest
on the title document is required or permitted to perfect such security
interest, the title document shows, or if a new or replacement title document
with respect to such Product is being applied for such title document will be
issued within 180 days and will show, the Originator as the holder of a first
priority security interest in such Product; if the related Product is located in
a state in which the filing of a financing statement under the UCC is required
to perfect a security interest in goods of the type including the Product, such
filings or recordings have been duly made and show the Originator as secured
party. In any case, the Trust has the same rights as the secured party of
record would have (if such secured party were still the owner of the Contract)
against all Persons (including the Originator and any trustee in bankruptcy of
the Originator) claiming an interest in such Product.
(t) No Government Contracts. No Obligor is the United States government
-----------------------
or an agency, authority, instrumentality or other political subdivision of the
United States government.
SECTION 3.03. Representations and Warranties Regarding the Contracts in
---------------------------------------------------------
the Aggregate.
-------------
(a) Amounts. The aggregate principal amounts payable by Obligors under
-------
the Contracts as of the Cutoff Date equal the Cutoff Date Pool Principal
Balance.
(b) Characteristics. Following the end of the Pre-Funding Period, the
---------------
Contracts will have the following characteristics as of the Cutoff Date:
(i) a remaining maturity of at least 2 months, but not more than 188
months;
(ii) an original maturity of at least 60 months, but not more than 240
months;
(iii) an original principal balance of at least $4,000 and not more than
$341,300;
(iv) a remaining principal balance of at least $500 and not more than
$311,700; and
(v) a contractual rate of interest of at least 7.500% and not
more than 17.990%.
(c) Computer Tape. The Computer Tape made available by the Originator was
-------------
complete and accurate as of its date and includes a description of the same
Contracts that are described in the List of Contracts.
(d) Marking Records. By the Closing Date, the Originator has caused the
---------------
portions of the Electronic Ledger relating to the Contracts to be clearly and
unambiguously marked to indicate that such Contracts constitute part of the
Trust and are owned by the Trust in accordance with the terms of the trust
created hereunder.
(e) No Adverse Selection. Except for the effect of the representations
--------------------
and warranties made in Sections 3.02 and 3.03 hereof, no adverse selection
procedures have been employed in selecting the Contracts.
3-5
SECTION 3.04. Representations and Warranties Regarding the Contract Files.
-----------------------------------------------------------
(a) Possession. Immediately prior to the Closing Date, the Originator
----------
will have possession of each original Contract and the related Contract File and
there are and there will be no custodial agreements in effect materially and
adversely affecting the rights of the Originator to make, or cause to be made,
any delivery required hereunder.
(b) Bulk Transfer Laws. The transfer, assignment and conveyance of the
------------------
Contracts and the Contract Files by the Originator pursuant to the Transfer
Agreement, and by Seller pursuant to this Agreement is not subject to the bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction.
SECTION 3.05. Repurchase of Contracts for Breach of Representations and
---------------------------------------------------------
Warranties.
----------
(a) The Originator shall repurchase a Contract, at its Repurchase Price,
not later than the last day of the Monthly Period prior to the Monthly Period
that is 90 days after the day on which the Originator, the Seller, the Servicer,
the Owner Trustee or the Indenture Trustee first discovers, or the Originator or
the Servicer should have discovered, a breach of a representation or warranty of
the Originator set forth in Sections 3.02, 3.03 or 3.04 of this Agreement or the
Officer's Certificate delivered pursuant to Section 2.02(i) that materially
adversely affects the interest of the Trust or the Securityholders in such
Contract and which breach has not been cured; provided, however, that (i) in the
-------- -------
event that a party other than the Originator first becomes aware of such a
breach, such discovering party shall notify the Originator in writing within
five Business Days of the date of such discovery and (ii) with respect to any
Contract incorrectly described on the List of Contracts with respect to unpaid
principal balance, which the Originator would otherwise be required to
repurchase pursuant to this Section, the Originator may, in lieu of repurchasing
such Contract, deposit in the Collection Account no later than the first
Determination Date that is 90 or more days from the date of such discovery cash
in an amount sufficient to cure such deficiency or discrepancy. Any such cash
so deposited shall be accounted for as a collection of principal or interest on
such Contract, according to the nature of the deficiency or discrepancy.
Notwithstanding any other provision of this Agreement, the obligation of the
Originator under this Section shall not terminate upon a Service Transfer
pursuant to Article VII.
(b) Upon receipt by the Trust by deposit in the Collection Account of the
Repurchase Price under subsection (a) above, and upon receipt of a certificate
of a Servicing Officer in the form attached hereto as Exhibit B, the Indenture
Trustee shall release its security interest in such Contract and the Owner
Trustee on behalf of the Trust shall convey and assign to the Originator all of
the Securityholders' right, title and interest in the repurchased Contract
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 the
Trust.
(c) The Originator shall defend and indemnify the Owner Trustee, the
Trust, the Indenture Trustee, and the Securityholders against all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel, arising out of any claims which may be asserted against or
incurred by any of them as a result of any third-party action
3-6
arising out of any breach of any representation set forth in the Officer's
Certificate delivered pursuant to Section 2.02(i) or Section 3.02, 3.03 or 3.04
of this Agreement.
SECTION 3.06. Covenants Regarding the Seller and Class C
------------------------------------------
Certificateholder.
-----------------
With respect to the Seller and, for so long as GTFC-2 is the Class C
Certificateholder, with respect to GTFC-2, the Originator covenants that:
(a) it will at all times hold out to the public, including the
respective creditors of the Originator, the Seller and GTFC-2, that it is a
separate entity from the others. The Originator, the Seller and GTFC-2
will not share a common logo. The Originator will not hold out or consider
the Seller or GTFC-2 as a department or division of the Originator.
(b) Other than the payment of certain of the organizational expenses
of the Seller and GTFC-2 by the Originator, each of the Seller and GTFC-2
will be responsible for the payment of all its losses, obligations and
expenses, and it will be adequately capitalized to conduct its business.
(c) All transactions and dealings between the Originator and the
Seller or GTFC-2 will be on such terms and conditions as would be generally
available to entities unaffiliated with the Originator in comparable
transactions. All such transactions have been and will be made only with
prior approval of the Seller's or GTFC-2's (as applicable) Board of
Directors, at arm's length, in good faith, and without the intent to
hinder, delay or defraud creditors of either entity, and transfers between
the Originator, the Seller or GTFC-2 will not be made if the party making
the transfer is insolvent or would be rendered insolvent by the transfer.
(d) Following the formation of the Trust, the Originator will
disclose all material transactions associated with the transaction in
communications to its shareholders and in public announcements which will
disclose the separate corporate identity of the Seller and GTFC-2 and that
the assets of the Seller and GTFC-2 will not be available for payment of
creditors' claims in the event of the insolvency of the Originator.
(e) Each of the Seller and GTFC-2 will comport itself in a manner
consistent with the factual assumptions contained in the "nonconsolidation
opinions" of Xxxxxx & Xxxxxxx LLP dated June 29, 2000 rendered in
connection with the issuance of the Notes.
3-7
ARTICLE IV
PERFECTION OF TRANSFER AND
PROTECTION OF SECURITY INTERESTS
SECTION 4.01. Custody of Contracts.
--------------------
(a) Subject to the terms and conditions of this Section, the Trust appoints
the Servicer to maintain custody of the Contract Files for the benefit of the
Trust and the Servicer shall maintain custody of the Contract Files for the
benefit of the Trust and shall act as custodian therefor.
(b) The Servicer agrees to maintain the related Contract Files at its
office where they are currently maintained, or at such other offices of the
Servicer in the State of Minnesota as shall from time to time be identified to
the Trust by written notice. The Servicer may temporarily move individual
Contract Files or any portion thereof without notice as necessary to conduct
collection and other servicing activities in accordance with its customary
practices and procedures.
(c) As custodian, the Servicer shall have and perform the following powers
and duties:
(i) hold the Contract Files on behalf of the Trust, Indenture Trustee
and the Securityholders, maintain accurate records pertaining to each
Contract to enable it to comply with the terms and conditions of this
Agreement, maintain a current inventory thereof, conduct annual physical
inspections of Contract Files held by it under this Agreement and certify
to the Trust and the Indenture Trustee annually that it continues to
maintain possession of such Contract Files;
(ii) implement policies and procedures, in writing and signed by a
Servicing Officer, with respect to persons authorized to have access to the
Contract Files on the Servicer's premises and the receipting for Contract
Files taken from their storage area by an employee of the Servicer for
purposes of servicing or any other purposes; and
(iii) attend to all details in connection with maintaining custody of
the Contract Files on behalf of the Trust, the Indenture Trustee and the
Securityholders.
(d) In performing its duties under this Section, the Servicer agrees to act
with reasonable care, using that degree of skill and care that it exercises with
respect to similar contracts owned and/or serviced by it. The Servicer shall
promptly report to the Trust and the Indenture Trustee any failure by it to hold
the Contract Files as herein provided and shall promptly take appropriate action
to remedy any such failure. In acting as custodian of the Contract Files, the
Servicer agrees further not to assert any beneficial ownership interests in the
Contracts or the Contract Files. The Servicer agrees to indemnify the Trust,
Owner Trustee, the Indenture Trustee and the Securityholders for any and all
liabilities, obligations, losses, damages, payments, costs or expenses of any
kind whatsoever which may be imposed on, incurred or
4-1
asserted against them as the result of any act or omission by the Servicer
relating to the maintenance and custody of the Contract Files; provided,
--------
however, that the Servicer will not be liable for any portion of any such amount
-------
resulting from the negligence or willful misconduct of any indemnified party.
SECTION 4.02. Filings.
-------
On or prior to the Closing Date, the Seller shall cause the UCC-1 financing
statement referred to in Section 2.02(e)(ii) to be filed. The Servicer on
behalf of the Trust shall cause to be filed all necessary continuation
statements of such UCC-1 financing statement. From time to time the Servicer
shall take and cause to be taken such actions and execute such documents as are
necessary to perfect and protect the Securityholders' interests in the Contracts
and their proceeds and the Products against all other persons, including,
without limitation, the filing of financing statements, amendments thereto and
continuation statements, the execution of transfer instruments and the making of
notations on or taking possession of all records or documents of title. The
Servicer will maintain the first priority perfected security interest of the
Trust in each Product so long as the related Contract is property of the Trust.
SECTION 4.03. Name Change or Relocation.
-------------------------
(a) During the term of this Agreement, the Seller shall not change its
name, identity or structure or relocate its chief executive office without first
giving notice thereof to the Owner Trustee, the Indenture Trustee and the
Servicer. In addition, following any such change in the name, identity,
structure or location of the chief executive office of the Seller, the Seller
shall given written notice of any such change to Standard & Poor's and Xxxxx'x.
(b) If any change in the Seller's name, identity or structure or the
relocation of its chief executive office would make any financing or
continuation statement or notice of lien filed under this Agreement seriously
misleading within the meaning of applicable provisions of the UCC or any title
statute or would cause the security interest evidenced by any such financing or
continuation statement or notice of lien to become unperfected (whether
immediately or with lapse of time), the Seller, no later than five days after
the effective date of such change, shall file, or cause to be filed, such
amendments or financing statements as may be required to preserve, perfect and
protect the Securityholders' interests in the Contracts, including the
Collateral Security and all proceeds thereof.
SECTION 4.04. Chief Executive Office.
----------------------
During the term of this Agreement, the Seller will maintain its chief
executive office in one of the States of the United States, except Tennessee.
SECTION 4.05. Costs and Expenses.
------------------
The Servicer agrees to pay all reasonable costs and disbursements in
connection with the perfection and the maintenance of perfection, as against all
third parties, of the Securityholders' right, title and interest in and to the
Contracts, including the Collateral Security and all proceeds thereof.
ARTICLE V
SERVICING OF CONTRACTS
SECTION 5.01. Responsibility for Contract Administration.
------------------------------------------
The Servicer will have the sole obligation to manage, administer, service
and make collections on the Contracts and perform or cause to be performed all
contractual and customary undertakings of the holder of the Contracts to the
Obligor. The Servicer may delegate duties under this Agreement to any of the
Servicer's Affiliates. In addition, the Servicer may at any time perform the
specific duty of repossessing Products through subcontractors who are in the
business of servicing consumer receivables. The Servicer may also perform other
specific duties through subcontractors; provided that the Servicer gives notice
to each of the Trust, the Indenture Trustee, Standard & Poor's and Xxxxx'x of
the use of any such subcontractors; and provided further that no such delegation
of duties by the Servicer shall relieve the Servicer of its responsibility with
respect thereto. The Owner Trustee, on behalf of the Trust and at the request
of a Servicing Officer, shall furnish the Servicer with any powers of attorney
or other documents necessary or appropriate to enable the Servicer to carry out
its servicing and administrative duties hereunder. Conseco Finance Corp. is
hereby appointed the Servicer until such time as any Service Transfer shall be
effected under Article VII.
SECTION 5.02. Standard of Care.
----------------
In managing, administering, servicing and making collections on the
Contracts pursuant to this Agreement, the Servicer will exercise that degree of
skill and care consistent with the highest degree of skill and care that the
Servicer exercises with respect to similar contracts serviced by the Servicer;
provided, however, that notwithstanding the foregoing, the Servicer shall not
-------- -------
release or waive the right to collect the unpaid balance on any Contract.
SECTION 5.03. Records.
-------
The Servicer shall, during the period it is servicer hereunder, maintain
such books of account and other records as will enable the Trust and the
Indenture Trustee to determine the status of each Contract.
SECTION 5.04. Inspection; Computer Tape.
-------------------------
(a) At all times during the term hereof, the Servicer shall afford the
Trust and Indenture Trustee and their authorized agents reasonable access during
normal business hours to the Servicer's records relating to the Contracts and
will cause its personnel to assist in any examination of such records by the
Trust and Indenture Trustee or their authorized agents. The examination
referred to in this Section will be conducted in a manner which does not
unreasonably interfere with the Servicer's normal operations or customer or
employee relations. Without otherwise limiting the scope of the examination the
Trust and Indenture Trustee may make, the Trust and Indenture Trustee may, using
generally accepted audit procedures, verify the status of each Contract and
review the Electronic Ledger and records relating thereto for
5-1
conformity to Monthly Reports prepared pursuant to Section 5.14 and compliance
with the standards represented to exist as to each Contract in this Agreement.
The Servicer shall provide to any Securityholder such access to the records
relating to the Contracts only in such cases where the Servicer is required by
applicable statutes or regulations, whether applicable to the Servicer or to
such Securityholder, to permit Securityholder to review such documentation. In
each case, such access shall be afforded without charge but only upon reasonable
request and during normal business hours. Nothing in this Section shall
derogate from the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors, and the failure of
the Servicer to provide access as provided in this Section as a result of such
obligation shall not constitute a breach of this Section. Any Securityholder,
by its acceptance of a Certificate or Note (or by acquisition of its beneficial
interest therein), as applicable, shall be deemed to have agreed to keep
confidential and not to use for its own benefit any information obtained by it
pursuant to this Section, except as may be required by applicable law.
(b) At all times during the term hereof, the Servicer shall keep available
a copy of the List of Contracts at its principal executive office for inspection
by the Trust and the Indenture Trustee.
(c) On or before the ninth Business Day of each month, the Servicer will
provide to the Indenture Trustee a Computer Tape setting forth a list of all the
outstanding Contracts and the outstanding principal balance of each such
Contract as of the end of the next preceding Monthly Period.
SECTION 5.05. Collections.
-----------
(a) The Servicer shall pay into the Collection Account: (i) as promptly as
practicable (not later than the next Business Day) following receipt thereof all
payments from Obligors and Net Liquidation Proceeds (other than late payment
penalty fees, extension fees and assumption fees, which shall be retained by the
Servicer as additional compensation for servicing the Contracts, and any
payments that were due prior to the Cutoff Date, which shall be remitted to the
Originator); and (ii) on the Business Day immediately prior to each Distribution
Date, all Servicer Advances required to be made with respect to such
Distribution Date pursuant to Section 5.13.
(b) If the Servicer so directs, the institution maintaining the Collection
Account shall, in the name of the Indenture Trustee in its capacity as such,
invest the amounts in the Collection Account in Eligible Investments that mature
not later than one Business Day prior to the next succeeding Distribution Date.
Once such funds are invested, such institution shall not change the investment
of such funds. All income and gain from such investments shall be added to the
Collection Account and distributed on such Distribution Date pursuant to Section
6.04(a). The Trustee and the Indenture Trustee shall in no way be liable for
losses on amounts invested in accordance with the provisions hereof. The
Servicer shall deposit in the Collection Account an amount equal to any net loss
on such investments immediately as realized. Funds in the Collection Account
not so invested must be insured to the extent permitted by law by the Federal
5-2
Deposit Insurance Corporation.
SECTION 5.06. Enforcement.
-----------
(a) The Servicer shall, consistent with customary servicing procedures and
the terms of this Agreement, act with respect to the Contracts in such manner as
will maximize the receipt of principal and interest on such Contracts and
Liquidation Proceeds with respect to Liquidated Contracts.
(b) The Servicer may xxx to enforce or collect upon Contracts, in its own
name, if possible, or as agent for the Trust. If the Servicer elects to
commence a legal proceeding to enforce a Contract, the act of commencement shall
be deemed to be an automatic assignment of the Contract to the Servicer for
purposes of collection only. If, however, in any enforcement suit or legal
proceeding it is held that the Servicer may not enforce a Contract on the ground
that it is not a real party in interest or a holder entitled to enforce the
Contract, the Owner Trustee on behalf of the Trust shall, at the Servicer's
expense, take such steps as the Servicer deems necessary to enforce the
Contract, including bringing suit in its name or the names of the
Securityholders.
(c) The Servicer shall exercise any rights of recourse against third
persons that exist with respect to any Contract in accordance with the
Servicer's usual practice. Without limitation of the foregoing, in exercising
recourse rights, the Servicer is authorized on behalf of the Trust to reassign
the Contract or to resell the related Product to the person against whom
recourse exists at the price set forth in the document creating the recourse.
(d) So long as the Originator is the Servicer, the Servicer may grant to
the Obligor on any Contract any rebate, refund or adjustment out of the
Collection Account that the Servicer in good faith believes is required because
of prepayment in full of the Contract. The Servicer will not permit any
rescission or cancellation of any Contract.
(e) So long as Conseco Finance Corp. is the Servicer, the Servicer may,
consistent with its customary servicing procedures and consistent with Section
5.02, grant to the Obligor on any Contract an extension of payments due under
such Contract, provided that Obligors may not be solicited for extensions and no
more than one extension of payments under a Contract may be granted in any
twelve-month period and, provided further, that no Contract may be granted an
extension more than a total of three times during the life of such Contract.
The Servicer may not permit the extension of any payment beyond the last
scheduled maturity date of any Contract as of the applicable Cutoff Date.
(f) The Servicer shall enforce any due-on-sale clause in a Contract if such
enforcement is called for under its then current servicing policies for
obligations similar to the Contracts, provided that such enforcement is
permitted by applicable law and will not adversely affect any applicable
insurance policy. If an assumption of a Contract is permitted by the Servicer,
upon conveyance of the related Product the Servicer shall use its best efforts
to obtain an assumption agreement in connection therewith.
5-3
(g) Any provision of this Agreement to the contrary notwithstanding, the
Servicer shall not agree to the modification or waiver of any provision of a
Contract, if such modification or waiver, when aggregated with all previous
modifications or waivers of the provisions of Contracts, would cause any Notes
to be treated as having been exchanged for other Notes in a taxable exchange
under Section 1001 of the Code or any proposed, temporary or final Treasury
Regulations issued thereunder.
SECTION 5.07. Satisfaction of Contracts.
-------------------------
Upon payment in full on any Contract, the Servicer will notify the Trust,
the Indenture Trustee, and the Originator (if the Originator is not the
Servicer) on the next succeeding Distribution Date by certification of a
Servicing Officer (which certification shall include a statement to the effect
that all amounts received in connection with such payments which are required to
be deposited in the Collection Account pursuant to Section 5.05 have been so
deposited). The Servicer is authorized to execute an instrument in satisfaction
of such Contract and to do such other acts and execute such other documents as
the Servicer deems necessary to discharge the Obligor thereunder and eliminate
the lien on the related Product. The Servicer shall determine when a Contract
has been paid in full; to the extent that insufficient payments are received on
a Contract credited by the Servicer as prepaid or paid in full and satisfied,
the shortfall shall be paid by the Servicer out of its own funds.
SECTION 5.08. Costs and Expenses.
------------------
All costs and expenses incurred by the Servicer in carrying out its duties
hereunder, including all fees and expenses incurred in connection with the
enforcement of Contracts (including enforcement of defaulted Contracts and
repossessions of Products securing such Contracts) shall be paid by the Servicer
and the Servicer shall not be entitled to reimbursement hereunder, except that
the Servicer shall be reimbursed out of the Liquidation Proceeds of a Liquidated
Contract for Liquidation Expenses incurred by it. The Servicer shall not incur
such Liquidation Expenses unless it determines in its good faith business
judgment that incurring such expenses will increase the Net Liquidation Proceeds
on the related Contract.
SECTION 5.09. Maintenance of Insurance.
------------------------
(a) Except as otherwise provided in subsection (b) of this Section 5.09,
the Servicer shall cause to be maintained one or more physical damage insurance
policies; in each case, issued by a company authorized to issue such policies in
the state in which the related Product is located and in an amount which is not
less than the maximum insurable value of such Product or the principal balance
due from the Obligor on the related Contract, whichever is less; provided,
--------
however, that the amount of coverage provided by each Insurance Policy shall be
-------
sufficient to avoid the application of any co-insurance clause contained
therein; and provided, further, that such Insurance Policies may provide for
customary deductible amounts. Each Insurance Policy caused to be maintained by
the Servicer shall contain a standard loss payee clause in favor of the Servicer
and its successors and assigns. If any Obligor is in default in the payment of
premiums on its Insurance Policy or Policies, the Servicer shall pay such
premiums out of its own funds and may separately add such premium to the
Obligor's obligation as provided by the Contract, but
5-4
shall not add such premium to the remaining principal balance of the Contract.
(b) The Servicer may, in lieu of causing individual Insurance Policies to
be maintained pursuant to subsection (a) of this Section 5.09, maintain one or
more blanket insurance policies covering any losses caused by damage to such
Product that would have been covered by an individual Insurance Policy. Any
such blanket policy shall be substantially in the form and in the amount carried
by the Servicer as of the date of this Agreement. The Servicer shall pay the
premium for such policy on the basis described therein and shall deposit into
the Collection Account from its own funds any deductible amount with respect to
claims under such blanket insurance policy relating to the Contracts. The
Servicer shall not, however, be required to deposit any deductible amount with
respect to claims under individual Insurance Policies maintained pursuant to
subsection (a) of this Section. If the insurer under such blanket insurance
policy shall cease to be acceptable to the Servicer, the Servicer shall exercise
its best reasonable efforts to obtain from another insurer a replacement policy
comparable to such policy.
(c) With respect to each Product that has been repossessed in connection
with a defaulted Contract, the Servicer shall either (i) maintain one or more
Insurance Policies thereon or (ii) self-insure such Products and deposit into
the Collection Account from its own funds any losses caused by damage to such
Product that would have been covered by an Insurance Policy.
(d) The Servicer shall keep in force throughout the term of this Agreement
(i) a policy or policies of insurance covering errors and omissions for failure
to maintain insurance as required by this Agreement and (ii) a fidelity bond.
Such policy or policies and such fidelity bond shall be in such form and amount
as is generally customary among Persons which service a portfolio of retail
installment sales agreements having an aggregate principal amount of
$100,000,000 or more and which are generally regarded as servicers acceptable to
institutional investors.
SECTION 5.10. Repossession.
------------
Notwithstanding the standard of care specified in Section 5.02, the
Servicer shall commence procedures for the repossession of any Product or take
such other steps that in the Servicer's reasonable judgment will maximize the
receipt of principal and interest or Net Liquidation Proceeds with respect to
the Contract secured by such Product (which may include retitling) subject to
the requirements of the applicable state and federal law, no later than five
Business Days after the time when such Contract becomes a Defaulted Contract.
In connection with such repossession or other conversion, the Servicer shall
follow such practices and procedures as it shall deem necessary or advisable and
as shall be consistent with Section 5.02. In the event that title to any Product
is acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Indenture Trustee, as trustee, or, at
its election, to its nominee on behalf of the Indenture Trustee, as trustee.
5-5
SECTION 5.11. Commingling of Funds.
--------------------
So long as the Originator is Servicer, any collections in respect of
Contracts collected by the Originator shall, prior to the deposit thereof in the
Collection Account, be held in bank accounts entitled substantially as follows:
"[name of depository], as agent for U.S. Bank Trust National Association and
other trustees and Conseco Finance Corp., as their interests may appear."
SECTION 5.12. Retitling; Security Interests.
-----------------------------
(a) The Servicer shall, in accordance with its customary servicing
procedures, take such steps as are necessary to maintain perfection of the
security interest created by each Contract in the related Product. The Servicer
is hereby authorized to take such steps as are necessary to re-perfect such
security interest on behalf of the Issuer and the Indenture Trustee in the event
of the relocation of the Product or for any other reason.
(b) If, at any time, a Service Transfer has occurred and the Originator is
no longer the Servicer and the new Servicer is unable to foreclose upon a
Product because the title document for such Product does not show such Servicer
or the Indenture Trustee as the holder of the first priority security interest
in the Product, such Servicer shall take all necessary steps to apply for a
replacement title document showing it or the Indenture Trustee as the secured
party. In order to facilitate the Servicer's actions, as described in
subsection (a) of this section, the Originator will provide the Servicer and/or
the Indenture Trustee with any necessary power of attorney permitting it to
retitle the Product. If the Servicer is still unable to retitle the Product,
the Originator will take all actions necessary to act with the Servicer to
foreclose upon the Product following a default on the related Contract,
including, as appropriate, the filing of any UCC-1 or UCC-2 financing statements
necessary to perfect the security interest in any Product.
SECTION 5.13. Servicer Advances.
-----------------
Not later than the Business Day immediately preceding each Distribution
Date, the Servicer shall advance to the Trust (each such advance, a "Servicer
Advance") all Delinquent Payments for the immediately preceding Monthly Period
by depositing the aggregate amount of such Delinquent Payments in the Collection
Account, provided, however, that the Servicer shall be obligated to advance
Delinquent Payments only to the extent that the Servicer, in its sole
discretion, expects to be able to recover such advances from subsequent
collections, including Net Liquidation Proceeds.
SECTION 5.14. Monthly Reports; Certificate of Servicing Officer.
-------------------------------------------------
(a) No later than 1:00 p.m. (Minnesota time) on each Determination Date,
the Servicer shall deliver to the Trust, the Indenture Trustee, the Paying
Agent, the Originator (if the Originator is not the Servicer), Standard & Poor's
and Moody's a "Monthly Report," substantially in the form of Exhibit C hereto.
--------------
(b) Each Monthly Report pursuant to Section 5.14(a) shall be accompanied by
a
5-6
certificate of a Servicing Officer substantially in the form of Exhibit D,
certifying the accuracy of the Monthly Report and that no Event of Termination
or event that with notice or lapse of time or both would become an Event of
Termination has occurred, or if such event has occurred and is continuing,
specifying the event and its status.
(c) The Originator and (if different from the Originator) the Servicer
shall, on request of the Trust, the Indenture Trustee, Standard & Poor's,
Moody's or a Securityholder, furnish the Trust, the Indenture Trustee, Standard
& Poor's, Moody's or a Securityholder such underlying data as may be reasonably
requested.
SECTION 5.15. Annual Report of Accountants.
----------------------------
On or before March 31 of each year, commencing March 31, 2001, the Servicer
at its expense shall cause a firm of independent public accountants which is a
member of the American Institute of Certified Public Accountants to make
available to the Trust, the Indenture Trustee, Standard & Poor's and Moody's a
report stating that such firm has examined selected documents and records
relating to the servicing of retail installment sales contracts, including the
contracts covered by this Agreement, in accordance with the Mortgage Bankers
Association of America's Uniform Single Attestation Program for Mortgage
Bankers, or any successor uniform program, and that, on the basis of such
examination, such servicing has been conducted in compliance with the minimum
servicing standards identified therein, except for such significant exceptions
or errors in records that, in the opinion of such firm, generally accepted
auditing standards requires it to report.
SECTION 5.16. Certain Duties of the Servicer Under the Trust Agreement.
--------------------------------------------------------
The Servicer shall, and hereby agrees that it will, monitor the Trust's
compliance with all applicable provisions of state and federal securities laws,
notify the Trust and the Administrator of any actions to be taken by the Trust
necessary for compliance with such laws and prepare on behalf of the Trust and
the Administrator all notices, filings or other documents or instruments
required to be filed under such laws.
SECTION 5.17. Annual Statement as to Compliance; Notice of Servicer
-----------------------------------------------------
Termination Event.
-----------------
(a) The Servicer shall deliver to the Trust, the Indenture Trustee, and
each of Standard & Poor's and Moody's, on or before March 31 (or 90 days after
the end of the Servicer's fiscal year, if other than December 31) of each year,
beginning on March 31, 2001, an officer's certificate signed by any Responsible
Officer of the Servicer, dated as of December 31 (or other applicable date) of
the immediately preceding year, stating that (i) a review of the activities of
the Servicer during the preceding 12-month period (or such other period as shall
have elapsed from the Closing Date to the date of the first such certificate)
and of its performance under this Agreement has been made under such officer's
supervision, and (ii) to such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement throughout such
period, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
5-7
(b) The Originator or the Servicer shall deliver to the Trust, the
Indenture Trustee, the Servicer or the Originator (as applicable) and each
Rating Agency promptly after having obtained knowledge thereof, but in no event
later than 2 Business Days thereafter, written notice in an officer's
certificate of any event which with the giving of notice or lapse of time, or
both, would become an Event of Termination under Section 7.01.
SECTION 5.18. Maintenance of Security Interests in Products.
---------------------------------------------
(a) Consistent with the policies and procedures required by this Agreement,
the Servicer shall take such steps as are necessary to maintain perfection of
the security interest created by each Contract in the related Product on behalf
of the Trust, including but not limited to obtaining the execution by the
Obligors and the recording, registering, filing, re-recording, re-filing, and
re-registering of all security agreements, financing statements and continuation
statements as are necessary to maintain the security interest granted by the
Obligors under the respective Contracts. The Trust hereby authorizes the
Servicer, and the Servicer agrees, to take any and all steps necessary to re-
perfect such security interest on behalf of the Trust as necessary because of
the relocation of a Product or for any other reason. In the event that the
assignment of a Contract to the Trust is insufficient, without a notation on the
related Product's certificate of title, or without fulfilling any additional
administrative requirements under the laws of the state in which the Product is
located, to perfect a security interest in the related Product in favor of the
Trust, the Servicer hereby agrees that the Servicer's designation as the secured
party on the certificate of title is in its capacity as agent of the Trust.
(b) Upon the occurrence of an Event of Termination, the Trust and the
Servicer shall take or cause to be taken such action as may, in the opinion of
counsel to the Trust, be necessary to perfect or re-perfect the security
interests in the Products securing the Contracts in the name of the Trust by
amending the title documents of such Products or by such other reasonable means
as may, in the opinion of counsel to the Trust, be necessary or prudent. The
Servicer hereby agrees to pay all expenses related to such perfection or re-
perfection and to take all action necessary therefor.
SECTION 5.19. Covenants, Representations, and Warranties of Servicer.
------------------------------------------------------
By its execution and delivery of this Agreement, the Servicer makes the
following representations, warranties and covenants on which the Trust relies in
accepting the Contracts and issuing the Notes and the Certificates and on which
the Indenture Trustee relies in authenticating the Notes and the Owner Trustee
relies in authenticating the Certificates.
(a) Organization and Good Standing. The Servicer is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its assets
and to transact the business in which it is currently engaged. The Servicer is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Servicer.
5-8
(b) Authorization; Binding Obligations. The Servicer has the power and
----------------------------------
authority to make, execute, deliver and perform this Agreement and its Related
Documents and all of the transactions contemplated under this Agreement and
thereunder and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement and its Related Documents.
When executed and delivered, this Agreement and its Related Documents will
constitute the legal, valid and binding obligations of the Servicer enforceable
in accordance with their terms, except as enforcement of such terms may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable remedies.
(c) No Consent Required. The Servicer is not required to obtain the
-------------------
consent of any other party or any consent, license, approval or authorization
from, or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except for such consents, licenses, approvals
and authorizations as have been obtained.
(d) No Violations. The execution, delivery and performance by the Servicer
-------------
of this Agreement and its Related Documents and the fulfillment of their terms
will not violate any provision of any existing law or regulation or any order or
decree of any court or the related Certificate of Incorporation or Bylaws of the
Servicer, or constitute a material breach of any mortgage, indenture, contract
or other agreement to which the Servicer is a party or by which the Servicer may
be bound.
(e) Litigation. No litigation or administrative proceeding of or before
----------
any court, tribunal or governmental body is currently pending, or to the
knowledge of the Servicer threatened, against the Servicer or any of its
properties or with respect to this Agreement, the Related Documents, or the
Securities which, if adversely determined, would in the opinion of the Servicer
have a material adverse effect on the transactions contemplated by this
Agreement and Related Documents.
(f) Chief Executive Office. The chief executive office of the Servicer is
----------------------
at 1100 Landmark Towers, 000 Xx. Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000-0000.
(g) No Default. The Servicer is not in default with respect to any order
----------
or decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default would materially and adversely
affect its condition (financial or other) or operations or its properties or the
consequences of which would materially and adversely affect its performance
hereunder and under its other Related Documents. The Servicer is not in default
under any agreement involving financial obligations or on any outstanding
obligation which would materially adversely impact its financial condition or
operations or legal documents associated with the transaction contemplated by
this Agreement or the other Related Documents.
(h) Liens in Force. The Product securing each Contract shall not be
--------------
released in whole or in part from the security interest granted by the Contract,
except upon payment in full of the Contract or as otherwise contemplated herein.
5-9
(i) No Impairment. The Servicer shall do nothing to impair the rights of
-------------
the Trust, the Indenture Trustee or the Securityholders in the Contracts, the
Insurance Policies or the other Trust Property.
(j) No Amendments. The Servicer shall not extend or otherwise amend the
-------------
terms of any Contract, except in accordance with Section 5.06.
SECTION 5.20. Purchase of Contracts Upon Breach of Covenant.
---------------------------------------------
Upon discovery by any of the Servicer, the Trust or the Indenture Trustee
of a breach of any of the covenants set forth in Section 5.06(d), 5.06(e), 5.18
or 5.19, the party discovering such breach shall give prompt written notice to
the others; provided, however, that the failure to give any such notice shall
-------- -------
not affect any obligation of the Servicer. Not later than the last day of the
Monthly Period that is 90 days after its discovery or receipt of notice of any
breach of any such covenant which materially and adversely affects the interests
of the Securityholders or the Trust in any Contract (including any Liquidated
Contract), the Servicer shall, unless it shall have cured such breach in all
material respects, purchase from the Trust the Contract affected by such breach
and pay the related Repurchase Price. It is understood and agreed that the
obligation of the Servicer to purchase any Contract (including any Liquidated
Contract) with respect to which such a breach has occurred and is continuing
shall, if such obligation is fulfilled, constitute the sole remedy against the
Servicer for such breach available to the Securityholders, the Trust, or the
Indenture Trustee on behalf of the Noteholders; provided, however, that the
-------- -------
Servicer shall indemnify the Owner Trustee, the Trust, the Indenture Trustee,
and the Securityholders 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 breach.
5-10
ARTICLE VI
DISTRIBUTIONS; TRUST ACCOUNTS;
STATEMENTS TO SECURITYHOLDERS
SECTION 6.01. Trust Accounts.
--------------
(a) The Servicer shall establish the Collection Account in the name of the
Indenture Trustee for the benefit of the Securityholders. The Collection
Account shall be an Eligible Account and initially shall be a segregated trust
account established with the Indenture Trustee and maintained with the Indenture
Trustee.
(b) The Servicer shall establish the Note Distribution Account in the name
of the Indenture Trustee for the benefit of the Noteholders. The Note
Distribution Account shall be an Eligible Account and initially shall be a
segregated trust account established with the Indenture Trustee and maintained
with the Indenture Trustee.
(c) The Servicer shall establish the Certificate Distribution Account in
the name of the Owner Trustee for the benefit of the Certificateholders. The
Certificate Distribution Account shall be an Eligible Account and initially
shall be a segregated trust account established with the Indenture Trustee and
maintained with the Indenture Trustee, so long as the Indenture Trustee is
acting as Paying Agent under Section 3.9 of the Trust Agreement.
(d) The Servicer shall establish the Pre-Funding Account on behalf of the
Trust, and shall deposit therein the Pre-Funded Amount pursuant to Section
2.02(j). The Pre-Funding Account shall be an Eligible Account and shall be a
segregated trust account established with the Indenture Trustee and maintained
with the Indenture Trustee.
(e) The Servicer shall establish the Reserve Account in the name of the
Indenture Trustee for the benefit of the Noteholders, and shall deposit therein
$7,000,000 pursuant to Section 6.08. The Reserve Account shall be an Eligible
Account and shall be a segregated trust account established with the Indenture
Trustee and maintained with the Indenture Trustee.
(f) The Servicer shall establish the Class B Reserve Account in the name
of the Indenture Trustee for the benefit of the Noteholders, and shall deposit
therein $1,400,00 pursuant to Section 6.09. The Class B Reserve Account shall be
an Eligible Account and shall be a segregated trust account established with the
Indenture Trustee and maintained with the Indenture Trustee.
(g) All amounts held in the Collection Account, the Pre-Funding Account,
the Reserve Account and the Class B Reserve Account (but not the Note
Distribution Account or the Certificate Distribution Account) shall, to the
extent permitted by applicable laws, rules and regulations, be invested, as
directed by the Servicer, in Eligible Investments that mature not later than one
Business Day prior to the Distribution Date for the Monthly Period to which such
amounts relate. Any such written direction shall certify that any such
investment is authorized by this Section 6.01(d). Such investments in Eligible
Investments shall be made in the name of the
6-1
Indenture Trustee on behalf of the Trust, and such investments shall not be sold
or disposed of prior to their maturity. Any investment of funds in the
Collection Account or the Pre-Funding Account shall be made in Eligible
Investments held by a financial institution with respect to which (a) such
institution has noted the Indenture Trustee's interest therein by book entry or
otherwise and (b) a confirmation of the Indenture Trustee's interest has been
sent to the Indenture Trustee by such institution, provided that such Eligible
Investments are (i) specific certificated securities (as such term is used in MN
UCC (S) 336.8-313(1)(d)(i)), and (ii) either (A) in the possession of such
institution or (B) in the possession of a clearing corporation (as such term is
used in MN UCC (S) 336.8-313(1)(g)) in New York or Minnesota, registered in the
name of such clearing corporation, not endorsed for collection or surrender or
any other purpose not involving transfer, not containing any evidence of a right
or interest inconsistent with the Indenture Trustee's security interest therein,
and held by such clearing corporation in an account of such institution.
Subject to the other provisions hereof, the Indenture Trustee shall have sole
control over each such investment and the income thereon, and any certificate or
other instrument evidencing any such investment, if any, shall be delivered
directly to the Indenture Trustee or its agent, together with each document of
transfer, if any, necessary to transfer title to such investment to the
Indenture Trustee in a manner which complies with this Section 6.01. All
interest, dividends, gains upon sale and other income from, or earnings on,
investments of funds in the Collection Account, the Pre-Funding Account, the
Reserve Account and the Class B Reserve Account shall be deposited in the
Collection Account and distributed on the next Distribution Date pursuant to
Section 6.06. The Servicer shall deposit in the applicable Trust Account an
amount equal to any net loss on such investments immediately as realized.
SECTION 6.02. Collection Account Deposits.
---------------------------
(a) Collections. The Servicer shall remit directly to the Collection
-----------
Account (no later than the next Business Day as specified in Section 5.05) all
payments by or on behalf of the Obligors on the Contracts and all Liquidation
Proceeds received by the Servicer.
(b) Servicer Advances. The Servicer shall deposit in the Collection
-----------------
Account immediately prior to each Distribution Date all Servicer Advances
required to be made pursuant to Section 5.13.
(c) Repurchased Contracts. The Originator shall deposit in the Collection
---------------------
Account the Repurchase Price for each Contract repurchased by it under Section
3.05. The Servicer shall deposit in the Collection Account the Repurchase Price
for each Contract repurchased by it under Section 5.20.
SECTION 6.03. Permitted Withdrawals.
---------------------
The Indenture Trustee may, from time to time as provided herein, make
withdrawals from the Collection Account of amounts deposited in said account
that are attributable to the Contracts only for the following purposes:
(a) to make payments in the amounts and in the manner provided for in
Section 6.04;
6-2
(b) to pay to the Originator with respect to each Contract or
property acquired in respect thereof that has been repurchased pursuant to
Section 3.05, all amounts received thereon and not required to be
distributed to Noteholders or Certificateholders as of the date on which
the related Scheduled Principal Balance or Repurchase Price is determined;
(c) to reimburse the Servicer out of Liquidation Proceeds for
Liquidation Expenses incurred by it, to the extent such reimbursement is
permitted pursuant to Section 5.08;
(d) to withdraw any amount deposited in the Collection Account that
was not required to be deposited therein; or
(e) to make any rebates or adjustments deemed necessary by the
Servicer pursuant to Section 5.06(d).
Since, in connection with withdrawals pursuant to clauses (b) and (c), the
Originator's or the Servicer's entitlement thereto is limited to collections or
other recoveries on the related Contract, the Servicer shall keep and maintain a
separate accounting, on a Contract by Contract basis, for the purpose of
justifying any withdrawal from the Collection Account pursuant to such clauses.
SECTION 6.04. Distributions.
-------------
(a) On each Distribution Date, the Servicer shall instruct the Indenture
Trustee (based on the information contained in the Monthly Report delivered
pursuant to Section 5.14) to make the following deposits and distributions by
11:00 a.m. (Minnesota time), to the extent of the Amount Available for such
Distribution Date, plus amounts, if any, withdrawn from the Reserve Account and
the Class B Reserve Account, and in the following order of priority:
(i) Servicing Fee. If Conseco Finance Corp. or an Affiliate is not
-------------
the Servicer, then to the Servicer, the Servicing Fee for the related
Monthly Period.
(ii) Servicer Advances. After payment of the amount specified in
-----------------
clause (i) above, to reimburse the Servicer for Uncollectible Advances and
for Servicer Advances made with respect to Delinquent Payments that were
recovered during the related Monthly Period.
(iii) Trustee Fee. After payment of the amount specified in clauses
-----------
(i) and (ii) above, to the Owner Trustee any accrued and unpaid fees of the
Owner Trustee in accordance with the Trust Agreement; to the Indenture
Trustee, any accrued and unpaid fees (including any fees and expenses of
the Indenture Trustee acting as custodian, securities intermediary or in
another similar capacity) of the Indenture Trustee in accordance with the
Indenture to the extent not paid by the Administrator or the Servicer.
(iv) Class A Interest. After payment of the amounts specified in
----------------
clauses (i)
6-3
through (iii) above, to the Note Distribution Account, the sum of the Class
A Interest Amount and any Unpaid Class A Interest Shortfall.
(v) Class M-1 Interest. After payment of the amounts specified in
------------------
clauses (i) through (iv) above, to the Note Distribution Account, the Class
M-1 Interest Amount and any Unpaid Class M-1 Interest Shortfall.
(vi) Class M-2 Interest. After payment of the amounts specified in
------------------
clauses (i) through (v) above, to the Note Distribution Account, the Class
M-2 Interest Amount and any Unpaid Class M-2 Interest Shortfall.
(vii) Class B Interest. After payment of the amounts specified in
----------------
clauses (i) through (vi) above, to the Note Distribution Account, the Class
B Interest Amount and any Unpaid Class B Interest Shortfall.
(viii) Note Principal. After payment of the amounts specified in
--------------
clauses (i) through (vii) above, to the Note Distribution Account, the
lesser of (1) the Formula Principal Distribution Amount and any Unpaid
Formula Principal Shortfall, and (2) the Total Note Principal Distribution
Amount.
(ix) Reserve Account. After payment of the amounts specified in
---------------
clauses (i) through (viii) above, to the Reserve Account, the amount
required to reinstate the amount on deposit in the Reserve Account up to
the Specified Reserve Balance.
(x) Class B Reserve Account. After payment of the amounts specified
-----------------------
in clauses (i) through (ix) above, to the Class B Reserve Account, the
amount required to reinstate the amount on deposit in the Class B Reserve
Account up to the Class B Specified Reserve Balance.
(xi) Servicing Fee. After payment of the amounts specified in
-------------
clauses (i) through (x) above, if Conseco Finance Corp. or an Affiliate of
Conseco Finance Corp. is the Servicer, to pay the Servicer the Monthly
Servicing Fee.
(xii) Additional Principal Distribution Amount. After payment of the
----------------------------------------
amounts specified in clauses (i) through (xi) above, to the Note
Distribution Account, the Additional Principal Distribution Amount.
(xiii) Class C Certificate Distribution Amount. After payment of the
---------------------------------------
amounts specified in clauses (i) through (xii) above, to the Certificate
Distribution Account, the Class C Certificate Distribution Amount.
SECTION 6.05. Statements to Securityholders.
-----------------------------
(a) On each Distribution Date, the Indenture Trustee shall include with
each distribution to each Noteholder, and the Owner Trustee shall include with
each distribution to each Certificateholder, a statement (which statement shall
also be provided to each Rating
6-4
Agency) based on information in the Monthly Report delivered on the related
Determination Date pursuant to Section 5.14, setting forth the following
information:
(i) the amount of such distribution to Holders of each Class of
Notes and the Certificates allocable to interest, separately identifying
any Unpaid Class A-1 Interest Shortfall, Unpaid Class A-2 Interest
Shortfall, Unpaid Class A-3 Interest Shortfall, Unpaid Class M-1 Interest
Shortfall, Unpaid Class M-2 Interest Shortfall and Unpaid Class B Interest
Shortfall included in such distribution and any remaining Unpaid Class A-1
Interest Shortfall, Unpaid Class A-2 Interest Shortfall, Unpaid Class A-3
Interest Shortfall, Unpaid Class M-1 Interest Shortfall, Unpaid Class M-2
Interest Shortfall and Unpaid Class B Interest Shortfall after giving
effect to such distribution;
(ii) the Class A-1 Interest Shortfall, the Class A-2 Interest
Shortfall, the Class A-3 Interest Shortfall, the Class M-1 Interest
Shortfall, the Class M-2 Interest Shortfall and the Class B Interest
Shortfall, if any, for such Distribution Date;
(iii) the amount of such distribution to Holders of each Class of
Notes and the Certificates allocable to principal, separately identifying
the Formula Principal Distribution Amount and any Additional Principal
Distribution Amount;
(iv) the Class A-1 Principal Balance, the Class A-2 Principal
Balance, the Class A-3 Principal Balance, the Class M-1 Principal Balance,
the Class M-2 Principal Balance and the Class B Principal Balance after
giving effect to the distribution of principal on such Distribution Date;
(v) the amount of the Monthly Servicing Fee, if any, paid to the
Company with respect to the related Monthly Period;
(vi) the Pool Scheduled Principal Balance for such Distribution
Date;
(vii) the number and aggregate principal balances of Contracts
delinquent (a) 30-59 days, (b) 60-89 days and (c) 90 or more days;
(viii) the number and aggregate Scheduled Principal Balance of
Contracts that became Defaulted Contracts during the related Monthly
Period;
(ix) the number and aggregate Scheduled Principal Balance of
Defaulted Contracts as of the last day of the related Monthly Period;
(x) the number of Products repossessed and remaining in inventory;
(xi) the number and aggregate Scheduled Principal Balance of
Contracts that became Liquidated Contracts during the related Monthly
Period and the related Net Liquidation Losses;
(xii) the aggregate amount of Servicer Advances made by the Servicer
with
6-5
respect to such Distribution Date, and the aggregate amount paid to the
Servicer as reimbursement of Servicer Advances made on prior Distribution
Dates;
(xiii) the amount, if any, deposited in the Reserve Account pursuant
to Section 6.04(a)(ix); and
(xiv) the amount, if any, deposited in the Class B Reserve Account
pursuant to Section 6.04(a)(x).
In the case of information furnished pursuant to clauses (i) through (v)
above, the amounts shall be expressed as a dollar amount per $1,000 denomination
of Note.
(b) The Owner Trustee and the Indenture Trustee shall inform any of the
Noteholders, Certificateholders or the Underwriters inquiring by telephone of
the information contained in the most recent Monthly Report.
(c) Certificateholders may obtain copies of the statements delivered by
the Owner Trustee pursuant to subsection (a) above upon written request to the
Owner Trustee at the Corporate Trust Office (together with a certification that
such Person is a Certificateholder and payment of any expenses associated with
the distribution thereof). Noteholders may obtain copies of the statements
delivered by the Indenture Trustee pursuant to subsection (a) above upon written
request to the Indenture Trustee at its Corporate Trust Office (together with a
certification that such Person is a Noteholder and payment of any expenses
associated with the distribution thereof).
SECTION 6.06. Pre-Funding Account.
-------------------
(a) Amounts on deposit in the Pre-Funding Account shall be withdrawn by
the Indenture Trustee on any Subsequent Transfer Date an amount equal to 100% of
the Cut-off Date Principal Balance of each Subsequent Contract transferred and
assigned to the Indenture Trustee on such Subsequent Transfer Date and pay such
amount to or upon the order of the Originator upon satisfaction of the
conditions set forth in Section 2.03(b) with respect to such transfer and
assignment. On the Post-Funding Payment date, any funds remaining in the Pre-
Funding Account (other than funds consisting of investment earnings) shall be
deposited in the Collection Account and added to the Amount Available.
(b) The Owner Trustee on behalf of the Trust shall be the legal owner of
the Pre-Funding Account. The Seller shall be the beneficial owner of the Pre-
Funding Account, subject to the foregoing power of the Indenture Trustee to
transfer amounts in the Pre-Funding Account to the Collection Account. All
amounts earned on deposits in the Pre-Funding Account shall be taxable to the
Seller. The Trustee shall release to the Seller all investment earnings in the
Pre-Funding Account on the Post-Funding Payment Date.
SECTION 6.07. [Reserved].
----------
6-6
SECTION 6.08. Reserve Account.
---------------
(a) In the event that the Amount Available with respect to any
Determination Date plus any amount withdrawn from the Class B Reserve Account is
less than the Total Required Payment for the related Distribution Date, then on
the date immediately preceding such Distribution Date, the Indenture Trustee, in
accordance with written instructions from the Servicer, shall (i) withdraw
amounts on deposit in the Reserve Account (up to the amount by which the Total
Required Payment for the related Distribution Date exceeds the Amount Available
with respect to such Determination Date plus any amount withdrawn from the Class
B Reserve Account) and (ii) deposit the amounts so withdrawn from the Reserve
Account into the Collection Account. On each Distribution Date, any Reserve
Account Excess Amount (after giving effect to any withdrawals on the immediately
preceding Distribution Date as described above) shall be distributed to the
Class C Certificateholders.
(b) If on any Distribution Date the amount on deposit in the Reserve
Account, together with the Amount Available for such Distribution Date, would be
sufficient to pay the sum of the amounts specified in Sections 6.04(a)(i) -
(vii) for such Distribution Date plus the Note Principal Balance, then on such
Distribution Date the Indenture Trustee, in accordance with written instructions
from the Servicer, shall withdraw such amount from the Reserve Account and shall
apply such amount to pay the amounts specified in Sections 6.04(a)(i) - (vii)
for such Distribution Date plus the Note Principal Balance, and shall distribute
any remaining funds on deposit in the Reserve Account to the Class C
Certificateholders.
SECTION 6.09 Class B Reserve Account.
-----------------------
On any Distribution Date on which there shall be a Class B Interest
Shortfall, the Servicer shall instruct the Indenture Trustee to withdraw from
the Class B Reserve Account the amount of such Class B Interest Shortfall and to
deposit such amount in the Note Distribution Account for distribution in
accordance with Section 8.02(c)(4) of the Indenture. Funds in the Class B
Reserve Account shall, at the direction of the Servicer, be invested in Eligible
Investments of the kind described in clauses (i) and (ii) of the definition of
"Eligible Investment". On each Distribution Date, any Class B Reserve Account
Excess Amount (after giving effect to any withdrawals on the immediately
preceding Distribution Date as described above) shall be distributed to the
Class C Certificateholder. On the Distribution Date on which the Class B
Principal Balance is reduced to zero, the Indenture Trustee shall release to the
Originator any amount remaining on deposit in the Class B Reserve Account after
payment of the Class B Notes.
6-7
ARTICLE VII
SERVICE TRANSFER
SECTION 7.01. Event of Termination.
--------------------
"Event of Termination" means the occurrence of any of the following (each a
--------------------
"Servicer Termination Event"):
(a) Any failure by the Servicer to make any deposit into an account
required to be made hereunder and the continuance of such failure for a period
of five Business Days after the Servicer has become aware, or should have become
aware, that such deposit was required;
(b) Failure on the Servicer's part to observe or perform in any material
respect any covenant or agreement in this Agreement (other than a covenant or
agreement which is elsewhere in this Section specifically dealt with), which
failure shall (i) materially and adversely affect the rights of the Trust, the
Indenture Trustee, or the Securityholders and (ii) continue unremedied for 30
days after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Servicer by the Indenture Trustee
or to the Servicer and the Indenture Trustee by Holders of Notes evidencing not
less than 25% of the Note Principal Balance or, if the Notes have been paid in
full, by Certificateholders evidencing not less than a Certificate Majority.
(c) Any assignment by the Servicer of its duties hereunder except as
specifically permitted hereunder, or any attempt to make such an assignment;
(d) A court or other governmental authority having jurisdiction in the
premises shall have entered a decree or order for relief in respect of the
Servicer in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Servicer, as the case may be, or for any substantial liquidation of its
affairs, and such order remains undischarged and unstayed for at least 60 days;
(e) The Servicer shall have commenced a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall have consented to the entry of an order for relief in an
involuntary case under any such law, or shall have consented to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian
or sequestrator (or other similar official) of the Servicer or for any
substantial part of its property, or shall have made any general assignment for
the benefit of its creditors, or shall have failed to, or admitted in writing
its inability to, pay its debts as they become due, or shall have taken any
corporate action in furtherance of the foregoing; or
(f) The failure of the Servicer to be an Eligible Servicer.
7-1
SECTION 7.02. Transfer.
--------
If an Event of Termination has occurred and is continuing, either the
Trust, the Indenture Trustee, a Note Majority, or, if the Notes have been paid
in full, a Certificate Majority, by notice in writing to the Servicer (and to
the Indenture Trustee and Trust if given by the Certificateholders or
Noteholders) may terminate all (but not less than all) of the Servicer's
management, administrative, servicing and collection functions (such termination
being herein called a "Service Transfer"). On receipt of such notice (or, if
later, on a date designated therein), or upon resignation of the Servicer in
accordance with Section 10.01, all authority and power of the Servicer under
this Agreement, whether with respect to the Contracts, the Contract Files or
otherwise (except with respect to the Collection Account, the transfer of which
shall be governed by Section 7.06), shall pass to and be vested in the Indenture
Trustee pursuant to and under this Section 7.02; and, without limitation, the
Indenture Trustee is authorized and empowered to execute and deliver on behalf
of the Servicer, as attorney-in-fact or otherwise, any and all documents and
other instruments (including, without limitation, documents required to make the
Indenture Trustee or a successor servicer the sole lienholder or legal title
holder of record of each Product) and to do any and all acts or things necessary
or appropriate to effect the purposes of such notice of termination. Each of
the Originator and the Servicer agrees to cooperate with the Indenture Trustee
in effecting the termination of the responsibilities and rights of the Servicer
hereunder, including, without limitation, the transfer to the Indenture Trustee
for administration by it of all cash amounts which shall at the time be held by
the Servicer for deposit, or have been deposited by the Servicer, in the
Collection Account, or for its own account in connection with its services
hereafter or thereafter received with respect to the Contracts and the execution
of any documents required to make the Indenture Trustee or a successor servicer
the sole lienholder or legal title holder of record in respect of each Product.
The Servicer shall be entitled to receive any other amounts which are payable to
the Servicer under this Agreement, at the time of the termination of its
activities as Servicer. The Servicer shall transfer to the new servicer (i) the
Servicer's records relating to the Contracts in such electronic form as the new
servicer may reasonably request and (ii) any Contracts and Contract Files in the
Servicer's possession.
SECTION 7.03. Indenture Trustee to Act; Appointment of Successor.
--------------------------------------------------
On and after the time the Servicer receives a notice of termination
pursuant to Section 7.02 or the resignation of the Servicer in accordance with
Section 10.01, the Indenture Trustee shall be the successor in all respects to
the Servicer in its capacity as servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions hereof and the Servicer shall be relieved of such
responsibilities, duties and liabilities arising after such Service Transfer;
provided, however, that (i) the Indenture Trustee will not assume any
-------- -------
obligations of the Originator pursuant to Section 3.05 and (ii) the Indenture
Trustee shall not be liable for any acts or omissions of the Servicer occurring
prior to such Service Transfer or for any breach by the Servicer of any of its
obligations contained herein or in any related document or agreement. As
compensation therefor, the Indenture Trustee shall be entitled to receive
reasonable compensation not in excess of the Monthly Servicing Fee.
Notwithstanding the above, the Indenture Trustee may, if it shall be unwilling
so to act, or shall, if it is legally unable so to act, appoint, or petition a
court of competent jurisdiction to appoint, an
7-2
Eligible Servicer as the successor to the Servicer hereunder in the assumption
of all or any part of the responsibilities, duties or liabilities of the
Servicer hereunder. Pending appointment of a successor to the Servicer
hereunder, unless the Indenture Trustee is prohibited by law from so acting, the
Indenture Trustee shall act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the Indenture Trustee may make
such arrangements for the compensation of such successor out of payments on
Contracts as it and such successor shall agree; provided, however, that no such
-------- -------
monthly compensation shall, without the written consent of 100% of the
Noteholders, exceed the Monthly Servicing Fee. The Indenture Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
SECTION 7.04. Notification to Securityholders.
-------------------------------
(a) Promptly following the occurrence of any Event of Termination, the
Servicer shall give written notice thereof to the Indenture Trustee, the Trust,
Standard & Poor's, and Xxxxx'x.
(b) Within ten days following any termination or appointment of a successor
to the Servicer pursuant to this Article VII, the Owner Trustee on behalf of the
Trust shall give written notice thereof to Standard & Poor's, Xxxxx'x and the
Certificateholders at their respective addresses appearing on the Certificate
Register and the Indenture Trustee shall give written notice thereof to
Noteholders at their respective addresses appearing in the Note Register.
(c) The Owner Trustee on behalf of the Trust shall give written notice to
Standard & Poor's and Xxxxx'x at least 30 days prior to the date upon which any
Eligible Servicer (other than the Trustee) is to assume the responsibilities of
Servicer pursuant to Section 7.03, naming such successor Servicer.
SECTION 7.05. Effect of Transfer.
------------------
(a) After the Service Transfer, the Indenture Trustee or new Servicer may
notify Obligors to make payments directly to the new Servicer that are due under
the Contracts after the effective date of the Service Transfer.
(b) After the Service Transfer, the replaced Servicer shall have no further
obligations with respect to the management, administration, servicing or
collection of the Contracts and the new Servicer shall have all of such
obligations, except that the replaced Servicer will transmit or cause to be
------
transmitted directly to the new Servicer for its own account, promptly on
receipt and in the same form in which received, any amounts (properly endorsed
where required for the new Servicer to collect them) received as payments upon
or otherwise in connection with the Contracts.
(c) A Service Transfer shall not affect the rights and duties of the
parties hereunder (including but not limited to the indemnities of the Servicer
and the Originator pursuant to Article IX and Sections 3.05 and 5.19) other than
those relating to the management, administration, servicing or collection of the
Contracts.
7-3
SECTION 7.06. Transfer of Collection Account.
------------------------------
Notwithstanding the provisions of Section 7.02, if the Collection Account
shall be maintained with the Servicer and an Event of Termination shall occur
and be continuing, the Servicer shall, after five days' written notice from the
Indenture Trustee, or in any event within ten days after the occurrence of the
Event of Termination, establish an Eligible Account with an institution other
than the Servicer and promptly transfer all funds in the Collection Account to
such new account, which shall thereafter be deemed the Collection Account for
the purposes hereof.
SECTION 7.07. Limits on Liability.
-------------------
The Servicer will be liable to the Trust, the Owner Trustee, the Indenture
Trustee and the Securityholders only to the extent of the obligations
specifically undertaken by the Servicer under this Agreement and will have no
other obligations or liabilities hereunder. Neither the Servicer nor any of its
directors, officers, employees or agents will have any liability to the Trust,
the Owner Trustee, the Indenture Trustee or the Securityholders (except as
explicitly provided in this Agreement) for any action taken, or for refraining
from taking any action, pursuant to this Agreement, other than any liability
that would otherwise be imposed by reason of the Servicer's breach of this
Agreement or willful misfeasance, bad faith or negligence (including errors in
judgment) in the performance of its duties, or by reason of reckless disregard
of obligations and duties under this Agreement or any violation of law.
SECTION 7.08. Waiver of Past Defaults.
-----------------------
A Note Majority or, if the Notes have been paid in full, Certificate
Majority may, on behalf of all Holders of Notes and Certificates, waive any
default by the Servicer in the performance of its obligations hereunder and its
consequences. Upon any such waiver of a past default, such default shall cease
to exist, and any Event of Termination arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
7-4
ARTICLE VIII
TERMINATION
SECTION 8.01. Class C Certificateholder's Purchase Option; Auction Sale;
----------------------------------------------------------
Accelerated Principal Distribution Amount.
-----------------------------------------
(a) The Class C Certificateholder shall, subject to subsection (b) hereof,
have the option to purchase all of the Contracts and all property acquired in
respect of any Contract remaining in the Trust at a price (such price being
referred to as the "Minimum Purchase Price") equal to the greatest of:
(i) the sum of (x) 100% of the principal balance of each Contract
(other than any Contract as to which title to the underlying property has
been acquired and whose fair market value is included pursuant to clause
(y) below), together with accrued and unpaid interest on each such Contract
at a rate per annum equal to the actual Contract Rate, plus (y) the fair
market value of such acquired property (as reasonably determined by the
Servicer as of the close of business on the third Business Day preceding
the date of such purchase),
(ii) the aggregate Note Principal Balance as of the date of such
purchase (less any amounts on deposit in the Collection Account or the Note
Distribution Account on such purchase date and representing payments of
principal in respect of the Contracts) plus an amount necessary to pay the
Class A Interest Amount, the Class M Interest Amount and the Class B
Interest Amount, any Unpaid Class A Interest Shortfall, any Unpaid Class M
Interest Shortfall and any Class B Interest Shortfall due on the
Distribution Date occurring in the calendar month following such purchase
date (less any amounts on deposit in the Collection Account or the Note
Distribution Account on such purchase date and representing payments of
interest in respect of the Contracts, net of any amounts required to be
paid therefrom to the Servicer or any Person other than the Noteholders),
and
(iii) the aggregate fair market value, as determined by the Servicer,
of all of the assets of the Trust, plus, in each case, any unpaid interest
at the applicable interest rate on each Class of Notes, as well as one
month's interest at the applicable Contract Rate on the Scheduled Principal
Balance of each Contract.
(b) The purchase by the Class C Certificateholder of all of the Contracts
pursuant to this Section 8.01 shall be conditioned upon:
(i) the Pool Scheduled Principal Balance, at the time of any such
purchase, must be less than 20% of the Cut-off Date Pool Principal Balance,
(ii) the Class C Certificateholder having provided the Indenture
Trustee, the Owner Trustee and the Depository (if any) with at least 30
days' written notice, and
8-1
(iii) the Indenture Trustee not having accepted a qualifying bid for
the Contracts pursuant to subsection (e) below.
(c) The Class C Certificateholder may assign its rights under this Section
8.01, separately from its other rights as Holder of the Class C Certificate, by
giving written notice of such assignment to the Indenture Trustee, S&P and
Moody's. Following the Indenture Trustee's receipt of such notice of
assignment, the Indenture Trustee shall recognize only such assignee (or its
assignee in turn) as the Person entitled to exercise the purchase option set
forth in Section 8.01(a).
(d) The Servicer shall notify the Indenture Trustee and the Class C
Certificateholder (whether or not the Class C Certificateholder has then
assigned its rights under this Section 8.01 pursuant to subsection (c)) no later
than two Business Days after the Determination Date relating to the first
Monthly Period which includes the date on which the Pool Scheduled Principal
Balance first becomes less than 20% of the Cut-off Date Pool Principal Balance,
to the effect that the Pool Scheduled Principal Balance is then less than 20% of
the Cut-off Date Pool Principal Balance.
SECTION 8.02. Liquidation or Sale of Trust Estate.
-----------------------------------
Upon any sale of the assets of the Trust pursuant to Sections 10.04 of the
Indenture, the Trust shall instruct the Indenture Trustee or the Owner Trustee,
as the case may be, to deposit the proceeds from such sale after all payments
and reserves therefrom have been made in the Collection Account. On the
Distribution Date on which such proceeds are deposited in the Collection Account
(or, if such proceeds are not so deposited on a Distribution Date, on the
Distribution Date immediately following such deposit), the Trust shall instruct
the Indenture Trustee to distribute such funds, together with all other amounts
available, in accordance with the terms of Section 6.04(a).
8-2
ARTICLE IX
INDEMNITIES
SECTION 9.01. Originator's Indemnities.
------------------------
The Originator will defend and indemnify the Trust, the Owner Trustee, the
Indenture Trustee (including the paying agent and any other agents of the Owner
Trustee and the Indenture Trustee), and the Securityholders against any and all
costs, expenses, losses, damages, taxes, claims and liabilities, including
reasonable fees and expenses of counsel and expenses of litigation of any third-
party claims arising out of or resulting from (i) the origination of any
Contract (including but not limited to truth in lending requirements) or the
servicing of such Contract prior to its transfer to the Trust (but only to the
extent such cost, expense, loss, damage, tax, claim or liability is not provided
for by the Originator's repurchase of such Contract pursuant to Section 3.05),
(ii) the use or ownership of any Products by the Originator or the Servicer or
any Affiliate of either, or (iii) the Originator's or the Trust's violation of
federal or state securities laws in connection with the offering and sale of the
Securities. Notwithstanding any other provision of this Agreement, the
obligation of the Originator under this Section shall not terminate upon a
Service Transfer pursuant to Article VII, except that the obligation of the
Originator under this Section shall not relate to the actions of any subsequent
Servicer after a Service Transfer.
SECTION 9.02. Liabilities to Obligors.
-----------------------
No obligation or liability to any Obligor under any of the Contracts is
intended to be assumed by the Trust, the Owner Trustee, Indenture Trustee, or
the Securityholders 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, the Trust, the Owner Trustee, Indenture Trustee,
and the Securityholders expressly disclaim such assumption.
SECTION 9.03. Servicer's Indemnities.
----------------------
(a) The Servicer shall indemnify, defend and hold harmless the Trust,
the Owner Trustee, the Indenture Trustee (including the Paying Agent and any
other agents of the Owner Trustee and the Indenture Trustee), their respective
officers, directors, agents and employees and the Noteholders from and against
any and all costs, expenses, losses, claims, damages and liabilities to the
extent that such cost, expense, loss, claim, damage or liability arose out of,
or was imposed upon any of them through the Servicer's breach of this Agreement,
the negligence, willful misfeasance or bad faith of the Servicer in the
performance of its duties under this Agreement or by reason of reckless
disregard of its obligations and duties under this Agreement.
(b) Indemnification under this Section 9.03 shall include, without
limitation, reasonable fees and expenses of counsel and expenses of litigation.
If the Servicer has made any indemnity payments pursuant to this Section and the
recipient thereafter collects any of such
9-1
amounts from others, the recipient shall promptly repay such amounts collected
to the Servicer, together with any interest earned thereon.
(c) Conseco Finance Corp., in its individual capacity, hereby
acknowledges that the indemnification provisions in the Transfer Agreement
benefitting the Trust, the Owner Trustee and the Indenture Trustee are
enforceable by each hereunder.
(d) The provisions of this Section shall survive the termination of
the Related Documents.
SECTION 9.04. Operation of Indemnities.
------------------------
Indemnification under this Article shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation. If the
Originator or the Servicer has made any indemnity payments pursuant to this
Article and the recipient thereafter collects any of such amounts from others,
the recipient will repay such amounts collected to the Originator or the
Servicer, as the case may be, without interest.
9-2
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Servicer Not to Assign Duties or Resign; Delegation of
------------------------------------------------------
Servicing Duties.
----------------
The Servicer may not sell or assign its rights and duties as Servicer
hereunder, except as expressly provided for herein, provided that the Servicer
may pledge or assign the right to receive all or any portion of the Monthly
Servicing Fee payable to it. The Servicer shall not resign from the obligations
and duties hereby imposed on it except upon determination that the performance
of its duties hereunder is no longer permissible under applicable law or is in
material conflict by reason of applicable law with any other activities carried
on by it. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel for the Servicer to such effect
addressed and delivered to the Trust and the Indenture Trustee. No such
resignation shall become effective until the Indenture Trustee or a successor
servicer shall have assumed the responsibilities and obligations of the Servicer
in accordance with Sections 7.02 and 7.03.
Notwithstanding the foregoing:
(a) Any person into which the Servicer may be merged or consolidated,
or any corporation resulting from any merger, conversion or consolidation
to which the Servicer shall be a party, or any Person succeeding to the
business of the Servicer, shall be the successor of the Servicer hereunder,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person
-------- -------
to the Servicer shall satisfy the criteria set forth in the definition of
an Eligible Servicer. The Servicer shall promptly notify Standard & Poor's
and Moody's of any such merger to which it is a party.
(b) The Servicer may delegate duties under this Agreement to any of
the Servicer's Affiliates. In addition, the Servicer may at any time
perform the specific duty of repossessing Products through subcontractors
who are in the business of servicing consumer receivables, and may also
perform other specific duties through subcontractors; provided that the
Servicer gives notice to the Trust and the Indenture Trustee and each of
Standard & Poor's and Moody's, and provided further that no such delegation
of duties by the Servicer shall relieve the Servicer of its responsibility
with respect thereto.
SECTION 10.02. Assignment or Delegation by Originator.
--------------------------------------
Except as specifically authorized hereunder, and except for its obligations
as Servicer which are dealt with under Article V and Article VII, the Originator
may not convey and assign or delegate any of its rights or obligations hereunder
absent the prior written consent of a Note Majority and a Certificate Majority,
and any attempt to do so without such consent shall be void.
10-1
It is understood that the foregoing does not prohibit the pledge or assignment
by the Originator of any right to payment pursuant to Article VI.
Notwithstanding the foregoing, any Person into which the Originator may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Originator shall be a party, or any Person
succeeding to the business of the Originator, shall be the successor of the
Originator hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Originator shall promptly notify Standard & Poor's
and Moody's of any such merger to which it is a party.
SECTION 10.03. Amendment.
---------
(a) This Agreement may be amended from time to time by the Originator, the
Servicer, the Seller and the Trust, with the prior written consent of the
Indenture Trustee but without the consent of any of the Securityholders, to
correct manifest error, to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other provisions herein, as
the case may be, including, without limitation, to add or amend any provision as
required by Standard & Poor's, Moody's, or any other nationally recognized
statistical rating organization in order to improve or maintain the rating of
any Class of Notes or the Certificates, provided, however, that such action
-------- -------
shall not, as evidenced by an Opinion of Counsel for the Originator, adversely
affect in any material respect the interests of any Securityholder.
(b) This Agreement may also be amended from time to time by the Originator,
the Servicer, the Seller and the Trust with the prior written consent of the
Indenture Trustee and with the consent of a Certificate Majority and a Note
Majority with respect to each Class (which consent of any Holder of a
Certificate or Note given pursuant to this Section or pursuant to any other
provision of this Agreement shall be conclusive and binding on such Holder and
on all future Holders of such Certificate or Note and of any Certificate or Note
issued upon the transfer thereof or in exchange thereof or in lieu thereof
whether or not notation of such consent is made upon the Certificate or Note)
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement, or of modifying in any
manner the rights of the Holders of Certificates or Notes; provided, however, no
-------- -------
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Contracts or
distributions required to be made on any Certificate or Note or the Class A-1
Interest Rate, the Class A-2 Interest Rate, the Class A-3 Interest Rate, Class
M-1 Interest Rate, the Class M-2 Interest Rate or Class B Interest Rate, (b)
amend any provisions of Section 6.04 in such a manner as to affect the priority
of payment of interest, principal or premium to Noteholders or
Certificateholders, or (c) reduce the aforesaid percentage required to consent
to any such amendment or any waiver hereunder, without the consent of the
Holders of all Securities then outstanding, and provided further, that the
-------- -------
Rating Agency Condition has been satisfied.
(c) Concurrently with the solicitation of any consent pursuant to this
Section 10.03, the Indenture Trustee shall furnish written notification to
Standard & Poor's and Moody's of
10-2
such solicitation. Promptly after the execution of any amendment pursuant to
this Section 10.03, the Indenture Trustee shall furnish written notification of
the substance of such amendment to Standard & Poor's, Moody's and each
Securityholder.
(d) It shall not be necessary for the consent of Securityholders under this
Section 10.03 to approve the particular form of any proposed amendment, 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 Securityholders shall be subject to such reasonable
requirements as the Indenture Trustee may prescribe.
(e) Each of the Owner Trustee and Indenture Trustee may, but shall not be
obligated to, enter into any such amendment which affects its own rights, duties
or immunities under this Agreement or otherwise.
(f) In connection with any amendment pursuant to this Section, the Owner
Trustee and Indenture Trustee shall be entitled to receive an unqualified
Opinion of Counsel to the Servicer to the effect that such amendment is
authorized or permitted by the Agreement.
(g) Upon the execution of any amendment or consent pursuant to this Section
10.03, this Agreement shall be modified in accordance therewith, and such
amendment or consent shall form a part of this Agreement for all purposes, and
every Securityholder hereunder shall be bound thereby.
SECTION 10.04. Notices.
-------
All communications and notices pursuant hereto to the Servicer, the
Originator, the Trust, the Owner Trustee, the Indenture Trustee, Standard &
Poor's and Moody's shall be in writing and delivered (by facsimile or other
means) or mailed to it at the appropriate following address:
If to the Originator or the Servicer:
Conseco Finance Corp.
1100 Landmark Towers
000 Xx. Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Chief Financial Officer
Telecopier Number: (000) 000-0000
If to the Seller:
1100 Landmark Towers
000 Xx. Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Chief Financial Officer
Telecopier Number: (000) 000-0000
10-3
If to the Trust or Owner Trustee:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Telecopier Number: 000-000-0000
If to the Indenture Trustee:
U.S. Bank Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Administration, Structured Finance
Telecopier Number: (000) 000-0000
If to Standard & Poor's:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset-Backed Surveillance
Telecopier Number: (000) 000-0000
If to Moody's:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Structured Finance Surveillance Group
Telecopier Number: (000) 000-0000
With a copy to: (000) 000-0000
or at such other address as the party may designate by notice to the other
parties hereto, which notice shall be effective when received.
All communications and notices pursuant hereto to a Securityholder shall be
in writing and delivered or mailed at the address shown in the Note Register or
the Certificate Register, as applicable.
SECTION 10.05. Merger and Integration.
----------------------
Except as specifically stated otherwise herein, this Agreement sets forth
the entire understanding of the parties relating to the subject matter hereof,
and all prior understandings,
10-4
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
SECTION 10.06. Headings.
--------
The headings herein are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
SECTION 10.07. Governing Law.
-------------
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Minnesota.
SECTION 10.08. Limitation of Liability.
-----------------------
It is expressly understood and agreed by the parties hereto that (a) this
Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as owner trustee of Conseco Finance
Recreational Enthusiast Consumer Trust 2000-A under the Trust Agreement, 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
Trust 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 Trust, (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 Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement or the other Related Documents.
SECTION 10.09. Seller's Charter; Residual Interests. In the event that
------------------------------------
the Seller shall amend, restate or otherwise change its Articles of
Incorporation, Seller shall promptly notify Standard & Poor's and Moody's of
such amendment, restatement or change. In the event that the Seller shall
become the holder of the Class C Certificate or the residual interest in any
other special-purpose entity, the Seller shall promptly notify Standard & Poor's
and Moody's that it has become the holder of the Class C Certificate.
10-5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized this 1st
day of June, 2000.
ISSUER:
CONSECO FINANCE RECREATIONAL
ENTHUSIAST CONSUMER TRUST 2000-A
By WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
on behalf of the Issuer as Owner
Trustee under the Trust Agreement
By /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxx
-------------------------------------
Title: Senior Financial Services Officer
------------------------------------
SELLER:
CONSECO FINANCE SECURITIZATIONS CORP.
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Senior Vice President and Treasurer
-----------------------------------
ORIGINATOR AND SERVICER:
CONSECO FINANCE CORP.
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Senior Vice President and Treasurer
-----------------------------------
10-6
Acknowledged and Accepted:
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Indenture Trustee
By __________________________________
Name: ___________________________
Title: ___________________________
By __________________________________
Name: ___________________________
Title: ___________________________
10-7
EXHIBIT A
FORM OF ASSIGNMENT
In accordance with the Sale and Servicing Agreement (the "Agreement") dated
as of June 1, 2000 among Conseco Finance Corp. (the "Originator"), Conseco
Finance Securitizations Corp., as Seller, (the "Seller"), and Conseco Finance
Recreational Enthusiast Consumer Trust 2000-A, the Seller does hereby transfer,
assign, set over and otherwise convey to the Trust all right, title and interest
of the Originator in (i) the retail installment sales contracts and promissory
notes for the purchase of a variety of Products (collectively, the "Initial
Contracts") identified in the List of Contracts delivered pursuant to Section
2.02(a) of the Agreement, a copy of which List is attached hereto, including,
without limitation, all related Collateral Security, all security interests
created thereby and any and all rights to receive payments which are due
pursuant thereto from and after June 1, 2000, but excluding any rights to
receive payments which were due pursuant thereto prior to June 1, 2000, (ii) the
Insurance Policies on any Products securing an Initial Contract for the benefit
of the creditor of such Contract and all rights under all blanket insurance
policies to the extent they relate to the Contracts, (iii) all rights of the
Seller under the Transfer Agreement and each Subsequent Transfer Agreement; (iv)
the Errors and Omissions Protection Policy as such policy relates to the
Contracts, (v) all items contained in the Contract Files, (vi) the Trust
Accounts and all funds on deposit therein from time to time and all investments
and proceeds thereof (including all income thereon), and (vii) all proceeds in
any way derived from any of the foregoing. Capitalized terms used herein but
not defined herein have the meanings assigned to them in the Agreement.
This Assignment is made pursuant to and upon the representation and
warranties on the part of the undersigned contained in Article III of the
Agreement and no others.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this ___ day of _______________, 2000.
CONSECO FINANCE SECURITIZATIONS CORP.
By: ___________________________________
Name: ____________________________
Title: ____________________________
A-1
EXHIBIT B
FORM OF CERTIFICATE REGARDING
REPURCHASED CONTRACTS
CONSECO FINANCE CORP.
CERTIFICATE REGARDING REPURCHASED CONTRACTS
The undersigned certifies that [s]he is a [title] of Conseco Finance Corp.,
-----
a Delaware corporation (the "Originator"); [s]he is duly authorized to execute
and deliver this certificate on behalf of the Servicer pursuant to Section 3.05
of the Sale and Servicing Agreement (the "Agreement"), dated as of June 1, 2000
among the Originator, the Servicer, Conseco Finance Securitizations Corp., as
Seller, and Conseco Finance Recreational Enthusiast Consumer Trust 2000-A (the
"Trust") (all capitalized terms used herein without definition having the
respective meanings specified in the Agreement):
1. The Contracts on the attached schedule are to be repurchased by
the [Originator] [Servicer] on the date hereof pursuant to Section [3.05]
[5.20] of the Agreement.
2. Upon deposit of the Repurchase Price for such Contracts, such
Contracts may, pursuant to Section [3.05] [5.20] of the Agreement, be
assigned by the Trust to the [Originator] [Servicer].
IN WITNESS WHEREOF, I have affixed hereunto my signature this ____ day of
________, 200_.
CONSECO FINANCE CORP.
By: ___________________________________
Name: ____________________________
Title: ____________________________
B-1
EXHIBIT C
FORM OF MONTHLY REPORT
[To Be Updated]
CONSECO FINANCE RECREATIONAL ENTHUSIAST CONSUMER TRUST 2000-A
Distribution Date: _______
1. Amount Available _______
(a) Collection Account balance as of last day
of related Monthly Period _______
(b) Payments on account
of principal deposited during _______
first 10 days of current month
(c) Less payments on account of principal deposited
during first 10 days of preceding month _______
(d) Repurchase Proceeds _______
(e) Servicer Advances _______
(f) Self-Insurance Payments _______
(g) Termination Payments _______
(h) Payments on Liquidation or Auction of Trust Estate _______
2. Monthly Servicing Fee (if Conseco Finance is not the Servicer) _______
3. Servicer Advances reimbursed _______
Note Interest
-------------
4. Amount actually distributed on account of Note
interest (current plus carryover) _______
5. Class A-1 Principal Balance _______
6. Class A-1 Interest Amount _______
7. Class A-2 Principal Balance _______
8. Class A-2 Interest Amount _______
9. Class A-3 Principal Balance _______
10. Class A-3 Interest Amount _______
C-1
11. Class M-1 Principal Balance _______
12. Class M-1 Interest Amount _______
13. Class M-2 Principal Balance _______
14. Class M-2 Interest Amount _______
15. Amount applied to Class A-1 Interest Amount _______
16. Amount applied to Class A-2 Interest Amount _______
17. Amount applied to Class A-3 Interest Amount _______
18. Amount applied to Class M-1 Interest Amount _______
19. Amount applied to Class M-2 Interest Amount _______
20. Class A-1 Interest Shortfall _______
21. Amount applied to Unpaid Class A-1 Interest Shortfall _______
22. Remaining Unpaid Class A-1 Interest Shortfall _______
23. Class A-2 Interest Shortfall _______
24. Amount applied to Unpaid Class A-2 Interest Shortfall _______
25. Remaining Unpaid Class A-2 Interest Shortfall _______
26. Class A-3 Interest Shortfall _______
27. Amount applied to Unpaid Class A-3 Interest Shortfall _______
28. Remaining Unpaid Class A-3 Interest Shortfall _______
29. Class M-1 Interest Shortfall _______
30. Amount applied to Unpaid Class M-1 Interest Shortfall _______
31. Remaining Unpaid Class M-1 Interest Shortfall _______
32. Class M-2 Interest Carryover Shortfall _______
33. Amount applied to Unpaid Class M-2 Interest Shortfall _______
C-2
34. Remaining Unpaid Class M-2 Interest Shortfall ________
Total Principal Distribution Amount
-----------------------------------
35. Formula Principal Distribution Amount:
(a) Scheduled principal ________
(b) Principal Prepayments ________
(c) Liquidated Contracts ________
(d) Repurchases ________
36. Aggregate of Formula Principal Shortfalls from prior
Distribution Dates ________
37. Additional Principal Distribution Amount (if applicable) ________
38. Overcollateralizaiton limit (if applicable) ________
39. Total Note Principal Distribution Amount
(line 35, plus line 36, plus line 37, minus line 38) ________
40. Amount actually distributed on account of principal (lesser of
line 19 or remaining Amount Available):
(a) Class A-1 ________
(b) Class A-2 ________
(c) Class A-3 ________
(d) Class M-1 ________
(e) Class M-2 ________
41. Formula Principal Shortfall for this Distribution Date
(line 17 minus line 40, but not less than zero) ________
Portfolio Information
---------------------
42. Pool Scheduled Principal Balance ________
43. Pool Factor
(a) Class A-1 ________
(b) Class A-2 ________
(c) Class A-3 ________
(d) Class M-1 ________
(e) Class M-2 ________
Aggregate Scheduled Balances of delinquent Contracts as of Determination Date
C-3
44. 30 - 59 days
(a) Number ________
(b) Aggregate Principal Amount ________
45. 60 - 89 days
(a) Number ________
(b) Aggregate Principal Amount ________
46. 90 days or more
(a) Number ________
(b) Aggregate Principal Amount ________
47. Aggregate Scheduled Balances and number of Contracts that
became Defaulted Contracts this month ________
48. Aggregate Scheduled Balances and number of all Defaulted
Contracts as of end of month ________
49. Number of Products in Repossession of as of end of month ________
50. Number of Contracts that became Liquidated Contracts ________
51. Aggregate Amount of Servicer Advances with
respect to current Distribution Date ________
52. Amount paid to Servicer as reimbursement for
prior Servicer Advances ________
53. Average Sixty-Day Delinquency Ratio ________
54. Cumulative Realized Losses ________
The amounts of principal and interest distributions set out above are
expressed as a dollar amount per $1,000 denomination of Note.
Please contact ____________________ of U.S. Bank Trust National
Association, ____________________ with any questions regarding this Statement or
your Distribution.
C-4
EXHIBIT D
FORM OF CERTIFICATE OF SERVICING OFFICER
CONSECO FINANCE CORP.
The undersigned certifies that [s]he is a [title] of Conseco Finance Corp.,
-----
a Delaware corporation (the "Originator"), and that as such [s]he is duly
authorized to execute and deliver this certificate on behalf of the Servicer
pursuant to Section 5.14 of the Sale and Servicing Agreement (the "Agreement")
dated as of June 1, 2000 among the Servicer, Conseco Finance Securitizations
Corp., as Seller, and Conseco Finance Recreational Enthusiast Consumer Trust
2000-A (all capitalized terms used herein without definition having the
respective meanings specified in the Agreement), and further certifies that:
1. The Monthly Report for the period from __________ to __________
attached to this certificate is complete and accurate in accordance with
the requirements of Section 5.14 of the Agreement; and
2. As of the date hereof, no Event of Termination or event that with
notice or lapse of time or both would become an Event of Termination has
occurred.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ______ day of
_____________, 20___.
CONSECO FINANCE CORP.
By: ______________________________
Name:_________________________
Title:________________________
D-1
EXHIBIT E
FORM OF ADDITION NOTICE
________, 2000
U.S. Bank Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Re: Sale and Servicing Agreement (the "Agreement"), dated as of June 1,
2000, among Conseco Finance Corp. (the "Originator") , Conseco Finance
Securitizations Corp. (the "Seller") and Conseco Finance Recreational
Enthusiast Consumer Trust 2000-A (the "Trust")
Ladies and Gentlemen:
Capitalized terms not otherwise defined in this Notice have the meanings
given them in the Agreement. The Seller hereby notifies the Indenture Trustee
of an assignment to the Trust of Subsequent Contracts on the date and in the
amounts set forth below:
Subsequent Transfer Date: ______________
Cut-off Date Principal Balance of Subsequent Contracts to be assigned to
Trust on Subsequent Transfer Date: $_______
Please acknowledge your receipt of this notice by countersigning the
enclosed copy in the space indicated below and returning it to the attention of
the undersigned.
Very truly yours,
CONSECO FINANCE SECURITIZATIONS CORP.
By: ________________________________
Name:
Title:
ACKNOWLEDGED AND AGREED:
U.S. BANK TRUST NATIONAL ASSOCIATION
By: ___________________
Name:
Title:
E-1
EXHIBIT F
FORM OF SUBSEQUENT TRANSFER INSTRUMENT
--------------------------------------
In accordance with the Sale and Servicing Agreement (the "Agreement") dated
as of June 1, 2000, among the undersigned, Conseco Finance Corp. and Conseco
Finance Recreational Enthusiast Consumer Trust 2000-A (the "Trust"), the
undersigned does hereby transfer, assign, set over and otherwise convey, without
recourse, to the Trust all right, title and interest of the Seller in and to (1)
the retail installment sales contracts and promissory notes identified in the
List of Contracts attached hereto (each a "Subsequent Contract"), and all moneys
payable thereon or in respect to the Subsequent Contracts, including any
liquidation proceeds therefrom but excluding payments due on the Subsequent
Contracts prior to _____, 2000 (the "Subsequent Cut-off Date"), (2) all rights
of the Seller under the Subsequent Transfer Agreement with Conseco Finance
Corp., (3) the Errors and Omissions Protection Policy as such policy relates to
the Subsequent Contracts, (4) all items contained in the related Contract Files,
and (5) all proceeds and products of the foregoing.
This Subsequent Transfer Instrument is made pursuant to and upon the
representation and warranties on the part of the undersigned contained in
Section 2.03 and Article III of the Agreement and no others. All undefined
capitalized terms used in this Subsequent Transfer Instrument have the meanings
given them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Subsequent Transfer
Instrument to be duly executed this _____ day of ____________, 1999.
CONSECO FINANCE SECURITIZATIONS CORP.
[Seal] By: ________________________________
Name:___________________________
Title:__________________________
F-1
EXHIBIT G
FORM OF OFFICER'S CERTIFICATE (SUBSEQUENT TRANSFER)
---------------------------------------------------
The undersigned certifies that [s]he is a [title] of Conseco Finance
Securitizations Corp., a Minnesota corporation (the "Seller"), and that as such
he is duly authorized to execute and deliver this certificate on behalf of the
Seller in connection with the Sale and Servicing Agreement dated as of June 1,
2000 (the "Agreement") among the Seller, Originator, Conseco Finance Corp. and
Conseco Finance Recreational Enthusiast Consumer Trust 2000-A. All capitalized
terms used herein without definition have the respective meanings specified in
the Agreement. The undersigned further certifies that:
1. This Certificate is delivered in connection with the sale to the Trust
on ______________ (the "Subsequent Transfer Date") of Contracts (the "Subsequent
Contracts") identified in the List of Contracts attached to the Subsequent
Transfer Instrument of even date herewith.
2. As of the Subsequent Transfer Date, all representations and warranties
in Section 3.01, 3.02, 3.03 and 3.04 of the Agreement are true and correct; all
representations and warranties in Sections 3.02 and 3.03 of the Agreement with
respect to the Subsequent Contracts are true to the best of [his] [her]
knowledge; and all representations in Section 3.04 of the Agreement with respect
to the Subsequent Contracts are true and correct.
3. All conditions precedent to the sale of the Subsequent Contracts to
the Trust under Section 2.03 of the Agreement have been satisfied.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ____ day of
__________, 2000.
By: __________________________
Name:_____________________
Title:____________________
G-1
EXHIBIT H
[LIST OF INITIAL CONTRACTS]
H-1
