Exhibit 10.4
CONSECO FINANCE SERVICING CORP.,
formerly known as
GREEN TREE FINANCIAL SERVICING CORPORATION,
as Purchaser
and
CONSECO BANK, INC.
as Seller
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Dated as of August 1, 1999
and
Amended and Restated
as of May 1, 2001
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of August
1, 1999 and amended and restated as of May 1, 2001 (this "Agreement"), by and
between CONSECO BANK INC., a Utah industrial loan corporation (the "Seller") and
CONSECO FINANCE SERVICING CORP., formerly known as GREEN TREE FINANCIAL
SERVICING CORPORATION, a Delaware corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Purchaser desires to purchase certain Receivables
(hereinafter defined) arising in certain credit card and other open-end accounts
of the Seller;
WHEREAS, the Seller desires to sell and assign certain Receivables to
the Purchaser upon the terms and conditions hereinafter set forth;
WHEREAS, the Seller and the Purchaser have entered into the Receivables
Purchase Agreement, dated as of August 1, 1999 (the "Original Agreement"), and
the Purchaser has purchased and the Seller has sold certain Receivables
(hereinafter defined) arising in certain credit card accounts of the Seller;
WHEREAS, the Purchaser and the Seller wish to amend and restate the
Original Agreement and to continue to purchase and sell Receivables from time to
time as provided in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the Original Agreement is hereby amended and restated in its entirety
as follows, and it is hereby agreed by and between the Purchaser and the Seller
as follows:
ARTICLE I
DEFINITIONS
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Section 1.01 Definitions. The following words and phrases shall have
the following meanings:
"Account" shall mean a private label credit card account or open end
credit account which has been used by the Account Holder to make Purchases from
a merchant for whom any affiliate or parent of the Seller has provided
commercial inventory funding ("floorplan") loans.
"Account Holder" shall mean any person for whom an Account has been
established by Seller.
"Account Owner" shall mean the Seller.
"Account Schedule" shall mean a computer file or microfiche list
containing a true and complete list of Accounts, identified by bank
identification number, bank number and account number and setting forth the
aggregate amount of Receivables and of Principal Receivables outstanding in such
Account as of the Closing Date, as of the Amendment Cut-Off Date and as of each
Additional Cut-Off Date.
"Addition Date" shall mean each Closing Date.
"Additional Account" shall mean each Account which is designated as an
Account hereunder in addition to the Amendment Date Accounts.
"Additional Cut-Off Date" shall mean each Additional Cut-Off Date
selected by the Purchaser and acceptable to the Seller which relates to the
designation of Accounts (as defined in this Agreement) as Additional Accounts
under this Agreement or the Servicing Corp. Receivables Purchase Agreement.
"Agreement" shall mean this Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"Amendment Date" shall mean the date this Agreement becomes effective,
which shall be May __, 2001.
"Amendment Date Accounts" shall mean those Accounts in existence as of
the Amendment Date Cut-Off Date and in which Receivables exist and which have
been sold to the Purchaser or will be sold to the Purchaser on the Amendment
Date.
"Amendment Date Cut-Off Date" shall mean _________ , 2001.
"Closing Date" shall mean any date on which an Account or Accounts is
(are) established, and a Purchase or Purchases is (are) made on the Account or
Accounts.
"Conveyance" shall have the meaning specified in subsection 2.01(a).
"Conveyance Papers" shall have the meaning specified in subsection
5.01(c).
"Governmental Authority" shall mean the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Debtor Relief Laws" shall mean (i) the Bankruptcy Code of the United
States of America and (ii) all other applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization,
suspension of payments, readjustment of debt, marshalling of assets or similar
debtor relief laws of the United States, any state or any foreign country from
time to time in effect affecting the rights of creditors generally.
"Indenture Trustee" shall mean U.S. Bank Trust National Association and
its successors and assigns as trustee under the terms of the Master Indenture
dated as of May 1, 2001 among such trustee, Conseco Private Label Credit Card
Master Note Trust and the Seller, as servicer.
"Insolvency Event" shall have the meaning specified in Section 8.03.
"Merchant" shall mean a business entity organized under or qualified to
do business under the laws of one of the states of the United States or the
District of Columbia which sells, produces, distributes, installs, services,
provides or manufactures retail goods and/or services.
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"Merchant Agreement" shall mean one or more agreements between the
Seller and a Merchant pursuant to which the Seller agrees to extend credit
accounts to customers of the Merchant or customers of dealers of such Merchant's
goods and services and the Merchant agrees to allow purchases of its goods and
services under such accounts.
"Merchant Termination Payments" shall mean any payments made by a
Merchant under the terms of a Merchant Agreement for the purpose of purchasing
any Receivables existing in the accounts created under that Merchant Agreement.
"Purchase" shall mean a purchase of a product by an Account Holder
through borrowing on a private label account issued by the Seller, which product
has been purchased by the merchant from the manufacturer or distributor using
the proceeds of a commercial inventory funding ("floorplan") loan made by an
affiliate or parent of the Seller.
"Purchase Price" shall have the meaning set forth in Section 3.01.
"Purchased Assets" shall have the meaning set forth in Section 2.01(a).
"Purchaser" shall mean Conseco Finance Servicing Corp., formerly known
as Green Tree Financial Servicing Corporation, a Delaware corporation, and its
permitted successors and assigns.
"Receivables" shall mean all amounts shown on the Seller's records as
amounts payable by an Account Holder on any Account from time to time.
"Requirements of Law" shall mean any law, treaty, rule or regulation,
or determination of an arbitrator or Governmental Authority, whether federal,
state or local (including usury laws, the Federal Truth in Lending Act and
Regulation B and Regulation Z of the Board of Governors of the Federal Reserve
System), and, when used with respect to any Person, the trust agreement,
articles of incorporation, certificate of incorporation and by-laws or other
organizational or governing documents of such Person.
"Servicing Corp. Receivables Purchase Agreement" shall mean that
Receivables Purchase Agreement, dated as of May 1, 2001, by and between the
Purchaser and Conseco Finance Credit Card Funding Corp., relating to the Conseco
Private Label Credit Card Master Note.
"Transaction Documents" shall mean (i) the Servicing Corp. Receivables
Purchase Agreement, (ii) a Transfer and Servicing Agreement dated as of May 1,
2001 among the Seller, Conseco Finance Credit Card Funding Corp. and Conseco
Private Label Credit Card Master Note Trust, (iii) a Master Indenture dated as
of May 1, 2001 among Conseco Private Label Credit Card Master Note Trust, the
Indenture Trustee and the Seller and (iv) each series supplement to the Master
Indenture and the notes issued thereunder.
Section 1.02 Other Definitional Provisions.(a) All terms defined in this
Agreement shall have the defined meanings when used in any certificate, other
document, or Conveyance Paper made or delivered pursuant hereto unless otherwise
defined therein.
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(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement or any Conveyance Paper
shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; and Section, Subsection, Schedule and
Exhibit references contained in this Agreement are references to
Sections, Subsections, Schedules and Exhibits in or to this Agreement
unless otherwise specified.
ARTICLE II
PURCHASE AND CONVEYANCE Off RECEIVABLES
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Section 2.01 Purchase.
(a) By execution of this Agreement, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser
(collectively, the "Conveyance"), without recourse, all its right,
title and interest in, to and under the Receivables existing in all
Accounts at the close of business on each Closing Date (which shall
occur from time to time as Accounts are created), and in each case
thereafter, Receivables created from time to time in such Accounts
("New Receivables") until the termination of this Agreement pursuant to
Article VIII hereof; all monies due and or to become due and all
amounts received with respect thereto and all proceeds (including,
without limitation, "proceeds" as defined in the UCC) thereto; the
right to receive Recoveries with respect to such Receivables and all of
the Seller's right, title and interest in and to any Merchant
Termination Payments which relate to any Receivables sold by the Seller
to the Purchaser under this Agreement, and the security interest
granted pursuant to Section 3.02 (the "Purchased Assets").
(b) In connection with such Conveyance, the Seller agrees (i)
to record and file, at its own expense, any financing statements (and
continuation statements with respect to such financing statements when
applicable) with respect to the Receivables and other Purchased Assets
now existing and hereafter created, meeting the requirements of
applicable state law in such manner and in such jurisdictions as are
necessary to perfect, and maintain perfection of, the Conveyance of
such Purchased Assets from the Seller to the Purchaser, (ii) that such
financing statements shall name the Seller, as seller, and the
Purchaser, as purchaser, of the Receivables and other Purchased Assets
and (iii) to deliver a file-stamped copy of such financing statements
or other evidence of such filings (excluding such continuation
statements, which shall be delivered as filed) to the Purchaser as soon
as is practicable after filing.
(c) In connection with such Conveyance, the Seller further
agrees that it will, at its own expense, on each Closing Date (i)
indicate in its computer files that Receivables created in connection
with such Accounts have been conveyed to the Purchaser in accordance
with this Agreement by including in such computer files a code
identifying each such Account and (ii) deliver an Account Schedule to
the Purchaser on the Amendment Date, on each Addition Date (as such
term is defined in the Servicing Corp. Receivables Purchase Agreement)
and on or before each Closing Date. Each such file or list, as
supplemented from time to time to reflect New Receivables, shall be
marked as Schedule I to this Agreement, shall be delivered to the
Purchaser, and is hereby incorporated into and made a part of this
Agreement. The Seller further agrees not to alter the code referenced
in this paragraph with respect to any Account during the term of this
Agreement.
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(d) The parties hereto intend that the conveyance of the
Seller's right, title and interest in and to the Receivables and the
other Purchased Assets shall constitute an absolute sale, conveying
good title free and clear of any liens, claims, encumbrances or rights
of others from the Seller to the Purchaser. It is the intention of the
parties hereto that the arrangements with respect to the Receivables
and the other Purchased Assets shall constitute a purchase and sale of
such Receivables and not a loan.
(e) In addition to the Conveyance of Purchased Assets, the
Seller does hereby assign to the Purchaser all of the Seller's rights
to enforce the terms of the Merchant Agreements, including the
collection of amounts due thereunder, in the event of the termination
of any such agreement and, in particular, to enforce any obligation of
the Merchant to make payment for Receivables purchased by or on behalf
of the Merchant to the extent such Receivables have been sold by the
Seller to the Purchaser under the terms of this Agreement and the
Seller recognizes and agrees that the Purchaser will assign such rights
to enforce the terms of the Merchant Agreements to the Purchaser under
the terms of the Servicing Corp. Receivables Purchase Agreement and
that such Purchaser will transfer such rights to a trust and finally to
the Indenture Trustee as further security for notes and other interests
issued under the Indenture (as defined in the Servicing Corp.
Receivables Purchase Agreement).
(f) The Seller and the Purchaser may at any time by mutual
agreement designate Accounts that will become Additional Accounts under
the terms of the Servicing Corp. Receivables Purchase Agreement, and
the Seller recognizes and agrees that with respect to the Receivables
in those Accounts, upon the Addition Date for those Accounts, the
Receivables will be sold by the Purchaser under the terms of the
Servicing Corp. Receivables Purchase Agreement. On or before each
Addition Date under the Servicing Corp. Receivables Purchase Agreement,
the Seller will deliver to the Purchaser, or to such other entity as
the Purchaser may direct, an Account Schedule with respect to the
Additional Accounts.
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01 Purchase Price.
(a) The "Purchase Price" for the Receivables in the Accounts,
as of each Closing Date, conveyed to the Purchaser under this Agreement
shall be payable on the Closing Date and shall be an amount equal to
100% of the aggregate balance of Receivables in those Accounts as of
such Closing Date plus a premium to be calculated in accordance with
Exhibit A attached hereto and made a part hereof. The Purchase Price
for any new Receivables shall be payable as they are created, in an
amount equal to 100% of the aggregate balance of the Receivables so
conveyed plus a premium to be calculated in accordance with Exhibit A.
Such new Receivables shall be conveyed by the Seller to the Purchaser
as of the date they are created (the "Distribution Date"). It is
intended by the parties that Exhibit A may be freely amended to respond
to changing market conditions without the requirement of re-executing
this Agreement.
(b) The Purchase Price to be paid by the Purchaser on each
Closing Date and as new Receivables are conveyed to the Purchaser shall
be paid in cash or by inter-company transfer.
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ARTICLE IV
SERVICING OF ACCOUNTS
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Section 4.01 Servicing. Following the sale of the Receivables
hereunder, Seller shall at all times remain the owner of the Accounts and the
servicer thereof. Seller shall service the Accounts at its own expense. Seller
may contract with third parties, including its parent and affiliated
corporations, to perform such servicing functions, and Purchaser acknowledges
and agrees to such contracts.
Section 4.02 Servicing Fee. Purchaser shall pay to Seller a Servicing
Fee for servicing the Accounts hereunder. The "Servicing Fee" shall be equal to
2% of the average of the total outstanding Receivables purchased hereunder on
the first day of the month and on the last day of the month, divided by 12. The
Servicing Fee shall be payable on a monthly basis within 15 days following the
last day of the month. Purchaser may offset against the Servicing Fee payable
hereunder any amounts for which Seller shall become indebted to Purchaser as a
result of Purchaser's providing services to Seller under a separate agreement.
ARTICLE V
REPRESENTATIONS-AND WARRANTIES
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Section 5.01 Representations and Warranties of the Seller Relating to
the Seller. The Seller hereby represents and warrants to, and agrees with, the
Purchaser as of the date of this Agreement, the Closing Date and on each
Distribution Date, that:
(a) Organization and Good Standing. The Seller is an
industrial loan corporation duly organized and validly existing in good
standing under the laws of the State of Utah and has, in all material
respects, full power and authority to own its properties and conduct
its business as such properties are presently owned and such business
is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) Due Qualification. The Seller is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt
from such requirements) and has obtained all necessary licenses and
approvals, in each jurisdiction in which failure to so qualify or to
obtain such licenses and approvals would render any Credit Agreement
relating to an Account or any Receivable unenforceable by the Seller or
the Purchaser.
(c) Due Authorization. The execution, delivery and performance
of this Agreement and any other document or instrument delivered
pursuant hereto (such documents or instruments, collectively, the
"Conveyance Papers"), and the consummation of the transactions provided
for in this Agreement have been (i) duly authorized by the Seller by
all necessary corporate action on the part of the Seller and (ii)
approved by the board of directors of the Seller and such approval is
reflected in the minutes of such board.
(d) No Conflict. The execution and delivery of this Agreement
by the Seller, the performance of the transactions contemplated by this
Agreement, and the fulfillment of the terms
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of this Agreement applicable to the Seller will not conflict with,
violate or result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of time
or both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Seller is a
party or by which it or any of its properties are bound.
(e) No Violation. The execution, delivery and performance of
this Agreement by the Seller and the fulfillment of the terms
contemplated herein and therein applicable to the Seller will not
conflict with or violate any Requirements of Law applicable to the
Seller.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Seller, threatened against the
Seller, before any Governmental Authority (i) asserting the invalidity
of this Agreement or the Conveyance Papers, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement
or the Conveyance Papers, (iii) seeking any determination or ruling
that, in the reasonable judgment of the Seller, would materially and
adversely affect the performance by the Seller of its obligations under
this Agreement, or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Agreement or the Conveyance.
(g) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Seller in
connection with the execution and delivery by the Seller of this
Agreement and the performance of the transactions contemplated by this
Agreement by the Seller have been duly obtained, effected or given and
are in full force and effect.
(h) Solvency. The Seller is not insolvent, no Insolvency Event
with respect to the Seller has occurred and the transfer of the
Receivables and other Purchased Assets by the Seller to the Purchaser
as contemplated by this Agreement has not been made in contemplation of
such insolvency or Insolvency Event or with the intent to hinder, delay
or defraud the Seller or the creditors of the Seller. This Agreement
represents a bona fide and arm's length transaction undertaken in the
ordinary course of business.
(i) Compliance. At all times Seller has established and
maintained the Accounts in compliance with all applicable state and
federal laws, regulations, common law, judicial or regulatory
pronouncements and the rules and bylaws of any voluntary organization
of which Seller is a member, which in any way relate to the origination
and servicing of credit card accounts.
The representations and warranties set forth in this Section 5.01 shall
survive the conveyance of the Receivables to the Purchaser. Upon discovery by
the Seller or the Purchaser of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give written notice to
the other party within three Business Days following such discovery.
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Section 5.02 Representations and Warranties of the Seller Relating to
the Agreement and the Receivables. Representations and Warranties. The Seller
hereby represents and warrants to the Purchaser as of the date of this
Agreement, as of the Closing Date and on each Distribution Date that:
(1) this Agreement constitutes a legal, valid and
binding obligation of the Seller enforceable against the
Seller in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally from time to time in
effect or general principles of equity;
(2) as of the Amendment Date Cut-off Date, as of each
Additional Cut-Off Date and each Closing Date, and as of the
related Payment Dates with respect to new Receivables,
Schedule I to this Agreement (composed of the Account
Schedules), as supplemented to such date, is an accurate and
complete listing in all material respects of all of the
Accounts sold as of such Amendment Date Cut-Off Date,
Additional Cut-Off Date or as of such Closing Date or such
Payment Date, as the case may be, and the information
contained therein with respect to the identity of such
Accounts and the Receivables existing thereunder is true and
correct in all material respects as of such Closing Date or
such applicable Payment Date, as the case may be;
(3) each Receivable has been conveyed to the
Purchaser free and clear of any Lien;
(4) all authorizations, consents, orders or approvals
of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the
Seller in connection with the conveyance of Receivables to the
Purchaser have been duly obtained, effected or given and are
in full force and effect:
(5) this Agreement constitutes a valid sale, transfer
and assignment to the Purchaser of all right, title and
interest of the Seller in the Receivables and the proceeds
thereof and the Recoveries payable pursuant to this Agreement;
upon the filing of the financing statements and, in the case
of Receivables hereafter created and the proceeds thereof,
upon the creation thereof, the Purchaser shall have a first
priority perfected ownership interest in such property and
proceeds.
(b) Notice of Breach. The representations and warranties set
forth in this Section 5.02 shall survive the transfer and assignment of
the Receivables to the Purchaser. Upon discovery by either the Seller
or the Purchaser of a breach of any of the representations and
warranties set forth in this Section 5.02, the party discovering such
breach shall give written notice to the other party within three
Business Days following such discovery; provided that the failure to
give notice within three Business Days does not preclude subsequent
notice.
Section 5.03 Representations and Warranties of the Purchaser. As of the
date of this Agreement and the Closing Date, the Purchaser hereby represents and
warrants to, and agrees with, the Seller that:
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(a) Organization and Good Standing. The Purchaser is a
corporation duly organized and validly existing under the laws of the
State of Delaware and has, in all material respects, full power and
authority to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted
and to execute, deliver and perform its obligations under this
Agreement.
(b) Due Authorization. The execution and delivery of this
Agreement and the consummation of the transactions provided for in this
Agreement have been duly authorized by the Purchaser by all necessary
corporate action on the part of the Purchaser.
(c) No Conflict. The execution and delivery of this Agreement
by the Purchaser, the performance of the transactions contemplated by
this Agreement, and the fulfillment of the terms of this Agreement
applicable to the Purchaser, will not conflict with, result in any
breach of any of the material terms and provisions of, or constitute
(with or without notice or lapse of time or both) a material default
under, any indenture, contract, agreement, mortgage, deed of trust or
other instrument to which the Purchaser is a party or by which it or
any of its properties are bound.
(d) No Violation. The execution, delivery and performance of
this Agreement by the Purchaser and the fulfillment of the terms
contemplated herein and therein applicable to the Purchaser will not
conflict with or violate any Requirements of Law applicable to the
Purchaser.
(e) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Purchaser, threatened against
the Purchaser, before any Governmental Authority (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement, (iii)
seeking any determination or ruling that, in the reasonable judgment of
the Purchaser, would materially and adversely affect the performance by
the Purchaser of its obligations under this Agreement or (iv) seeking
any determination or ruling that would materially and adversely affect
the validity or enforceability of this Agreement.
(f) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Purchaser
in connection with the execution and delivery by the Purchaser of this
Agreement and the performance of the transactions contemplated by this
Agreement have been duly obtained, effected or given and are in full
force and effect.
The representations and warranties set forth in this Section 5.03 shall
survive the Conveyance of the Receivables to the Purchaser. Upon discovery by
the Purchaser or the Seller of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the other party within three Business Days following such discovery.
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ARTICLE VI
COVENANTS
Section 6.01 Covenants of the Seller. The Seller hereby covenants and
agrees with and for the benefit of the Purchaser as follows:
(a) Security Interests. Except for the Conveyances hereunder,
the Seller will not sell, pledge, assign or transfer to any other
Person, or take any other action inconsistent with the Purchaser's
ownership of the Receivables and other Purchased Assets or grant,
create, incur, assume or suffer to exist any Lien on, any Receivable or
other Purchased Assets, whether now existing or hereafter created, or
any interest therein, and the Seller shall not claim any ownership
interest in the Receivables and other Purchased Assets and shall defend
the right, title and interest of the Purchaser in, to and under the
Receivables and other Purchased Assets, whether now existing or
hereafter created, against all claims of third parties claiming through
or under the Seller.
(b) Delivery of Collections. In the event that the Seller
receives monies due on any Account, or any Merchant Termination
Payment, the Seller agrees to pay to the Purchaser all such monies as
soon as practicable after receipt thereof.
(c) Notice of Liens. The Seller shall notify the Purchaser
promptly after becoming aware of any Lien on any Receivable other than
the Conveyances hereunder and under the Transaction Documents.
(d) Documentation of Transfer. The Seller shall undertake to
file any documents that would be necessary to perfect and maintain the
transfer of the Purchased Assets to the Purchaser. This Agreement and
any amendments hereto will be maintained, continuously, as an official
record of the Seller.
(e) Servicing of Accounts. At all times during the term of
this Agreement, Seller covenants that it will service the Accounts in
compliance with all applicable state and federal laws, regulations,
common law, judicial or regulatory pronouncements and the rules and
bylaws of any voluntary organization of which Seller is a member, which
in any way relate to the origination and servicing of credit card
accounts. This covenant is not made as to any services provided by
Purchaser to Seller in relation to the Accounts under any separate
agreement.
Section 6.02 Covenants of the Seller with Respect to Portfolio Yield,
Credit Agreements and Merchant Agreements. The Seller hereby agrees, for the
benefit of the Purchaser, that:
(a) Periodic Rate Finance Charges. Except as otherwise
required by any Requirements of Law or as is deemed by the Seller to be
necessary in order for it to maintain its credit card business or a
program operated by such credit card business on a competitive basis
based on a good faith assessment by it of the nature of the competition
with respect to the credit business or such program, it shall not at
any time take any action which would have the effect of reducing the
Series Portfolio Yield (as defined in the Transaction Documents) to a
level that
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could be reasonably expected to result in an Adverse Effect (as defined
in the Transaction Documents) with respect to any series of notes
issued under the Transaction Documents based on the insufficiency of
the Series Portfolio Yield or any similar test.
(b) Credit Agreements and Guidelines. Subject to compliance
with all Requirements of Law and paragraph (a) above, the Seller may
change the terms and provisions of the applicable Credit Card
Agreements or the applicable Credit Card Guidelines (as such terms are
defined in the Transaction Documents) in any respect (including the
calculation of the amount or the timing of charge-offs and the finance
charges to be assessed thereon). Notwithstanding the above, unless
required by any Requirements of Law or as permitted by paragraph (a)
above, the Seller will take no action unless (i) at the time of such
action the Seller reasonably believes that such action will not cause
an Amortization Event, Reinvestment Event or Event of Default (as such
terms are defined in the Transaction Documents) to occur, and (ii) such
change is made applicable to the comparable segment of the credit card
accounts owned by the Seller which have characteristics the same as, or
substantially similar to, the Accounts that are the subject of such
change, except as otherwise restricted by an endorsement, sponsorship,
or other agreement between the Seller and an unrelated third party or
by the terms of the Credit Card Agreements.
Section 6.03 Covenants of the Purchaser. The Purchaser hereby covenants
and agrees with and for the benefit of the Seller as follows:
(a) Transactions with Affiliates Policy of Seller. Purchaser
hereby acknowledges and agrees to comply with the Affiliates
Transactions Policy of the Seller. With respect to all aspects of the
transactions contemplated by this Agreement, Purchaser agrees to make
available to the Seller sufficient access to the records of its
business to enable the Seller to maintain its own internal records, to
respond promptly to regulatory or consumer inquiries, to audit the
quality or level of services provided, and to review such records for
any reasonable purpose as if the records were its own.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01 Conditions to the Purchaser's Obligations Regarding
Receivables. The obligations of the Purchaser to purchase the Receivables in the
Accounts on the Closing Date shall be subject to the satisfaction of the
following conditions:
(a) All representations and warranties of the Seller contained
in this Agreement shall be true and correct on the Closing Date with
the same effect as though such representations and warranties had been
made on such date;
(b) All information concerning the Accounts provided to the
Purchaser shall be true and correct in all material respects as of each
Closing Date;
(c) The Seller shall have (i) delivered to the Purchaser an
Account Schedule as of each Closing Date and (ii) substantially
performed all other obligations required to be performed by the
provisions of this Agreement;
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(d) The Seller shall have recorded and filed, at its expense,
any financing statement with respect to the Receivables now existing
and hereafter created for the transfer of accounts and general
intangibles (each as defined in Section 9-106 of the UCC) meeting the
requirements of applicable state law in such manner and in such
jurisdiction as would be necessary to perfect the sale of and security
interest in the Receivables and other Purchased Assets from the Seller
to the Purchaser, and shall deliver a file-stamped copy of such
financing statements or other evidence of such filings to the
Purchaser;
(e) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall
be satisfactory in form and substance to the Purchaser, and the
Purchaser shall have received from the Seller copies of all documents
(including, without limitation, records of corporate proceedings)
relevant to the transactions herein contemplated as the Purchaser may
reasonably have requested.
Section 7.02 Conditions Precedent to the Seller's Obligations. The
obligations of the Seller to sell Receivables in the Accounts on the Closing
Date shall be subject to the satisfaction of the following conditions:
(a) All representations and warranties of the Purchaser
contained in this Agreement shall be true and correct with the same
effect as though such representations and warranties had been made on
such date;
(b) Payment or provision for payment of the Purchase Price in
accordance with the provisions of Section 3.01 hereof shall have been
made; and
(c) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall
be satisfactory in form and substance to the Seller, and the Seller
shall have received from the Purchaser copies of all documents
(including, without limitation, records of corporate proceedings)
relevant to the transactions herein contemplated as the Seller may
reasonably have requested.
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.01 Term. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue until terminated by either of
the parties as provided herein.
Section 8.02 Voluntary Termination. Either party may terminate this
Agreement upon 30 days written notice to the other party as to all or any
portion of the Receivables sold hereunder. If the termination is effective as to
only a portion of the Receivables conveyed, the terminating party shall send to
the receiving party, together with its notice, an Account Schedule containing
the Accounts as to which the termination is effective. Upon termination,
Purchaser shall pay to Seller 100% of the Receivables for all Accounts as to
which this Agreement is terminated, and execute any documents necessary to
effect a reconveyance of said Receivables to Seller (including the execution and
filing of any necessary forms and documents required by the UCC).
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Section 8.03 Purchase Termination. If the Seller shall fail generally
to, or admit in writing its inability to, pay its debts as they become due; or
if a proceeding shall have been instituted in a court having jurisdiction in the
premises seeking a decree or order for relief in respect of the Seller in an
involuntary case under any Debtor Relief Law, or for the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or
other, similar official of the Seller or for any substantial part of the
Seller's property, or for the winding-up or liquidation of the Seller's affairs
and, if instituted against the Seller, any such proceeding shall continue
undismissed or unstayed and in effect, for a period of 60 consecutive days, or
any of the actions sought in such proceeding shall occur; or if the Seller shall
commence a voluntary case under any Debtor Relief Law, or if the Seller shall
consent to the entry of an order for relief in an involuntary case under any
Debtor Relief Law, or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or
other similar official of, or for, any substantial part of its property, or any
general assignment for the benefit of its creditors; or the Seller or any
subsidiary of the Seller shall have taken any corporate action in furtherance of
any of the foregoing actions (each, an "Insolvency Event"); then the Seller
shall immediately cease to transfer new Receivables to the Purchaser and shall
promptly give notice to the Purchaser and the Trustee of such Insolvency Event.
Notwithstanding any cessation of the transfer to the Purchaser of additional new
Receivables, any new Receivables transferred to the Purchaser prior to the
occurrence of such Insolvency Event and collections in respect of such new
Receivables whenever created, accrued in respect of such new Receivables, shall
continue to be property of the Purchaser.
ARTICLE IX
INDEMNIFICATION
Section 9.01 By Seller. Seller shall be liable to and shall indemnify
and hold harmless Purchaser and its respective affiliates, officers, directors,
agents, attorneys and employees from and against any Losses arising out of the
intentional or negligent act or omission of Seller in the performance of its
duties and obligations under this Agreement or its failure to comply with the
terms of this Agreement (including any representation, warranty or covenant
hereunder) or any applicable Laws or regulations applicable to Seller.
Section 9.02 By Purchaser. Purchaser shall be liable to and shall
indemnify and hold harmless Seller and its affiliates, officers, directors,
agents, attorneys and employees from and against any Losses arising out of the
intentional or negligent act or omission of Purchaser in the performance of its
duties or obligations under this Agreement or its failure to comply with the
terms of this Agreement (including any representation, warranty or covenant
hereunder) or any applicable Laws or regulations applicable to Purchaser,
Section 9.03 General. Both Purchaser and Seller shall promptly notify
the other Party in writing of any claim, demand, action, proceeding, suit or
threat of suit brought against such Party or of which it becomes aware (except
with respect to a threat of suit any Party might institute against another
Party) which may give rise to a right of indemnification pursuant to this
Agreement. Upon receipt of such notice, the indemnifying Party shall be entitled
to participate in the defense of any such claim, demand, action, proceeding or
suit and shall have the right, at its election and upon written notice to the
indemnified party, to take over and control the defense
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thereof, at its own cost and expense, and to employ counsel reasonably
satisfactory to the indemnified Party. The indemnifying Party agrees that it
shall not settle any such claim, demand, action, proceeding or suit without the
prior written consent of the indemnified Party (which consent shall not be
unreasonably withheld) unless such settlement contains an express unconditional
release of the indemnified Party from all liabilities and obligations arising
out of such claim, demand, action, proceeding or suit.
ARTICLE X
MISCELLANEOUS PROVISIONS
------------------------
Section 10.01 Amendment. This Agreement and the rights and obligations
of the parties hereunder may not be changed orally, but only by an instrument in
writing signed by the Purchaser and the Seller in accordance with this Section
10.01. This Agreement may be amended from time to time by the Purchaser and the
Seller (i) to cure any ambiguity, (ii) to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein or in any such
other Conveyance Papers, (iii) to add any other provisions with respect to
matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement, (iv) to change or modify the
Purchase Price and (v) to change, modify, delete or add any other obligation of
the Seller or the Purchaser. Any reconveyance executed in accordance with the
provisions hereof shall not be considered to be an amendment to this Agreement.
Section 10.02 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF UTAH, WITHOUT REFERENCE TO ITS CONFLICT
OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.03 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
to (a) in the case of the Seller, Conseco Bank Inc., 0000 X. Xxxxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxx Xxxx Xxxx, XX 00000, Attention: President (facsimile no. (801)
733-2259), (b) in the case of the Purchaser, Conseco Finance Servicing Corp.,
1100 Landmark Towers, 000 Xx. Xxxxx Xx., Xx. Xxxx, XX 00000, Attention:
President (facsimile no. (000) 000-0000).
Section 10.04 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, and terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
Section 10.05 Assignment. Notwithstanding anything to the contrary
contained herein, this Agreement may not be assigned by the parties hereto;
provided, however, that the Seller shall have the right to assign its rights,
title and interests, in to and under this Agreement to (i) any successor by
merger assuming this Agreement, or (ii) to any affiliate owned directly or
indirectly by Conseco Finance Corp. which assumes the obligations of this
Agreement.
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Section 10.06 Further Assurances. The Purchaser and the Seller agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party more
fully to effect the purposes of this Agreement, including, without limitation,
the execution of any financing statements or continuation statements or
equivalent documents relating to the Receivables and other Purchased Assets for
filing under the provisions of the UCC or other law of any applicable
jurisdiction.
Section 10.07 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Purchaser or the Seller, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
Section 10.08 Counterparts. This Agreement and all Conveyance Papers
may be executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
Section 10.09 Binding Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns.
Section 10.10 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,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 10.11 Headings. The headings are for purposes of reference only
and shall not otherwise affect the meaning or interpretation of any provision
hereof.
Section 10.12 Schedules and Exhibits. The schedules and exhibits
attached hereto and referred to herein shall constitute a part of this Agreement
and are incorporated into this Agreement for all purposes.
Section 10.13 Survival of Representations and Warranties. All
representations, warranties and agreements contained in this Agreement or
contained in any supplemental Conveyance, shall remain operative and in full
force and effect.
Section 10.14 Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, the Seller shall not, prior to the date which is
one year and one day after the termination of this Agreement, acquiesce,
petition or otherwise invoke or cause the Purchaser to invoke the process of any
Governmental Authority for the purpose of commencing or sustaining a case
against the Purchaser under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Purchaser or any substantial part
of its property or ordering the winding-up or liquidation of the affairs of the
Purchaser.
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IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Receivables Purchase Agreement to be duly executed by their respective officers
as of the day and year first above written.
CONSECO BANK, INC. as Seller
By:
--------------------------------
Name:
Title:
CONSECO FINANCE SERVICING CORP.,
as Purchaser
By:
--------------------------------
Name:
Title:
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EXHIBIT A
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MTD (Private Label) Credit Cards
Weekly, the MTD receivables consisting of principal and accrued interest will be
sold by Conseco Bank, Inc. ("CBI") to Conseco Finance Servicing Corp. ("CFSC").
At the end of each month, the cumulative total of principal from that months
weekly sales will be multiplied by 3.03% to determine the premium owed to CBI by
CFSC. The 3.03% premium was selected by CBI and CFSC because it was the fair
market value provided by KMPG LLP in a similar portfolio that CBI sold in April
1998.
