EXHIBIT 4.4
TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
CONSECO FINANCE CORP.
Seller
dated as of
December 1, 1999
CONSECO FINANCE VEHICLE TRUST 1999-B
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS........................................................1
SECTION 1.1. General....................................................1
SECTION 1.2. Specific Terms.............................................1
SECTION 1.3. Usage of Terms.............................................3
SECTION 1.4. No Recourse................................................3
ARTICLE II CONVEYANCE OF THE INITIAL CONTRACTS AND THE INITIAL
COLLATERAL SECURITY...............................................3
SECTION 2.1. Conveyance of the Initial Contracts and the Initial
Collateral Security........................................3
SECTION 2.2. Purchase Price of Initial Contracts........................4
SECTION 2.3. Conveyance of Subsequent Contracts and Subsequent
Collateral Security........................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES...................................5
SECTION 3.1. Representations and Warranties of Seller...................5
SECTION 3.2. Representations and Warranties of CFSC.....................7
ARTICLE IV COVENANTS OF THE SELLER...........................................9
SECTION 4.1. Transfer of Contracts......................................9
SECTION 4.2. Costs and Expenses.........................................9
SECTION 4.3. Indemnification............................................9
SECTION 4.4. Financial Statement Disclosure............................10
ARTICLE V REPURCHASES.......................................................10
SECTION 5.1. Repurchase of Contracts Upon Breach of Warranty...........10
SECTION 5.2. Reassignment of Purchased Contracts.......................10
SECTION 5.3. Waivers...................................................11
ARTICLE VI MISCELLANEOUS....................................................11
SECTION 6.1. Liability of Seller.......................................11
SECTION 6.2. Merger or Consolidation of Seller or CFSC.................11
SECTION 6.3. Limitation on Liability of Seller and Others..............12
SECTION 6.4. Amendment.................................................12
SECTION 6.5. Notices...................................................13
SECTION 6.6. Merger and Integration....................................13
SECTION 6.7. Severability of Provisions................................13
SECTION 6.8. Intention of the Parties..................................13
SECTION 6.9. Governing Law.............................................14
SECTION 6.10. Counterparts..............................................14
SECTION 6.11. Conveyance of the Initial Contracts and the Initial
Collateral Security to the Trust..........................14
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SECTION 6.12. Nonpetition Covenant......................................14
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SCHEDULES
Schedule A -- Schedule of Initial Contracts
EXHIBITS
Exhibit A -- Form of Subsequent Transfer Agreement
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TRANSFER AGREEMENT
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THIS TRANSFER AGREEMENT, dated as of December 1, 1999, executed between
Conseco Finance Securitizations Corp., a Minnesota corporation, as purchaser
("CFSC"), and Conseco Finance Corp., a Delaware corporation, as seller
("Seller").
W I T N E S S E T H:
WHEREAS, CFSC has agreed to purchase from Seller and Seller, pursuant
to this Agreement, is transferring to CFSC the certain retail installment sales
contracts and promissory notes for the purchase of commercial trucks and
trailers (collectively, the "Products") specified in the Schedule of Initial
Contracts attached hereto as Schedule A (the "Initial Contracts") and the
Initial Collateral Security; and
WHEREAS, CFSC has agreed to purchase from Seller and Seller has agreed
to transfer to CFSC the Subsequent Contracts and Subsequent Collateral Security
in an amount set forth herein, prior to February 1, 2000.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, CFSC and Seller, intending to be legally
bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. General. The specific terms defined in this Article
include the plural as well as the singular. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Article,
Section, Schedule and Exhibit references, unless otherwise specified, refer to
Articles and Sections of and Schedules and Exhibits to this Agreement.
Capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the Sale and Servicing Agreement, dated as of
December 1, 1999, by and among Conseco Finance Securitizations Corp. (as
Seller), Conseco Finance Corp. (as Originator and Servicer), and Conseco Finance
Vehicle Trust 1999-B (as Issuer) (the "Trust").
SECTION 1.2. Specific Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Agreement" shall mean this Transfer Agreement and all amendments
hereof and supplements hereto.
"Closing Date" means December 16, 1999.
"Indenture Trustee" means U.S. Bank Trust National Association, a
national banking association organized under the laws of the United States, as
Indenture Trustee under the
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Indenture and not in its individual capacity, or any successor Indenture Trustee
under the Indenture.
"Initial Collateral Security" means, with respect to any
Initial 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.
"Initial Contracts" means the Contracts listed on the Schedule
of Initial Contracts attached hereto as Schedule A.
"Collateral Security" means the Initial Collateral Security
conveyed by Seller to CFSC pursuant to this Agreement together with any and all
Subsequent Collateral Security conveyed by Seller to CFSC pursuant to each
Subsequent Transfer Agreement.
"Owner Trustee" means Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as trustee of the
Trust, and any successor trustee appointed and acting pursuant to the Trust
Agreement.
"Related Documents" means the Notes, the Certificates, the
Sale and Servicing Agreement, the Trust Agreement, the Indenture, each
Subsequent Transfer Agreement, the Note Purchase Agreements and the Underwriting
Agreement among Seller, CFSC and the underwriter of the Notes. The Related
Documents to be executed by any party are referred to herein as "such party's
Related Documents," "its Related Documents" or by a similar expression.
"Repurchase Event" means the occurrence of a breach of any of
Seller's representations and warranties hereunder or under any Subsequent
Transfer Agreement or any other event which requires the repurchase of a
Contract by Seller under the Sale and Servicing Agreement.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement, dated as of December 1, 1999, executed and delivered by Conseco
Finance Corp., as Originator and Servicer, Conseco Finance Securitizations
Corp., as Seller, and the Trust.
"Schedule of Initial Contracts" means the schedule of all
Contracts sold and transferred pursuant to this Agreement which is attached
hereto as Schedule A.
"Schedule of Contracts" means the Schedule of Initial
Contracts attached hereto as Schedule A as supplemented by each Schedule of
Subsequent Contracts attached to each Subsequent Transfer Agreement as Schedule
A.
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"Schedule of Subsequent Contracts" means the schedule of all
Contracts sold and transferred pursuant to a Subsequent Transfer Agreement which
is attached to such Subsequent Transfer Agreement as Schedule A, which Schedule
of Subsequent Contracts shall supplement the Schedule of Initial Contracts.
"Subsequent Contracts" means the Contracts specified in the
Schedule of Subsequent Contracts attached as Schedule A to each Subsequent
Transfer Agreement.
"Subsequent Collateral Security" means the Subsequent
Collateral Security conveyed by Seller to CFSC pursuant to each Subsequent
Transfer Agreement.
"Subsequent Transfer Agreement" has the meaning assigned in
Section 2.3(b)(iii).
"Trust" means the trust created by the Trust Agreement, the
estate of which consists of the Trust Property.
"Trust Property" means the property and proceeds of every
description conveyed by CFSC to the Trust pursuant to the Sale and Servicing
Agreement and pursuant to any Subsequent Transfer Agreement, together with the
Trust Accounts (including all Eligible Investments therein and all proceeds
therefrom).
SECTION 1.3. Usage of Terms. With respect to all terms used in
this Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other gender; references to "writing"
include printing, typing, lithography, and other means of reproducing words in a
visible form; references to agreements and other contractual instruments include
all subsequent amendments thereto or changes therein entered into in accordance
with their respective terms and not prohibited by this Agreement, or the Sale
and Servicing Agreement, the Trust Agreement or the Indenture; references to
Persons include their permitted successors and assigns; and the terms "include"
or "including" mean "include without limitation" or "including without
limitation."
SECTION 1.4. No Recourse. Without limiting the obligations of
Seller hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of Seller,
or of any predecessor or successor of Seller.
ARTICLE II
CONVEYANCE OF THE INITIAL CONTRACTS
AND THE INITIAL COLLATERAL SECURITY
SECTION 2.1. Conveyance of the Initial Contracts and the
Initial Collateral Security. Subject to the terms and conditions of this
Agreement, Seller hereby sells, transfers, assigns, and otherwise conveys to
CFSC without recourse (but without limitation of its obligations in this
Agreement or in the Sale and Servicing Agreement), and CFSC hereby purchases,
all right, title and interest of Seller in and to the Initial Contracts and the
Initial Collateral Security. It is the intention of Seller and CFSC that the
transfer and assignment
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contemplated by this Agreement shall constitute a sale of the Initial Contracts
and the Initial Collateral Security from Seller to CFSC, conveying good title
thereto free and clear of any Liens, and the Initial Contracts and the Initial
Collateral Security shall not be part of Seller's estate in the event of the
filing of a bankruptcy petition by or against Seller under any bankruptcy or
similar law.
SECTION 2.2. Purchase Price of Initial Contracts.
Simultaneously with the conveyance of the Initial Contracts and the Initial
Collateral Security to CFSC, CFSC has paid or caused to be paid to or upon the
order of Seller approximately $573,792,500.00 by wire transfer of immediately
available funds (representing the proceeds to CFSC from the sale of the Initial
Contracts after (i) deducting expenses of $725,000 incurred by CFSC in
connection with such sale and (ii) depositing the Pre-Funded Amount in the
Pre-Funding Account).
SECTION 2.3. Conveyance of Subsequent Contracts and
Subsequent Collateral Security.
(a) Subject to the conditions set forth in paragraph (b) below
and the terms and conditions in the related Subsequent Transfer Agreement, in
consideration of CFSC's delivery on the related Subsequent Transfer Date to or
upon the order of Seller of an amount equal to the purchase price of the
Subsequent Contracts (as set forth in the related Subsequent Transfer
Agreement), Seller hereby agrees to sell, transfer, assign, and otherwise convey
to CFSC without recourse (but without limitation of its obligations in this
Agreement and the related Subsequent Transfer Agreement), and CFSC hereby agrees
to purchase all right, title and interest of Seller in and to the Subsequent
Contracts and the Subsequent Collateral Security described in the related
Subsequent Transfer Agreement.
(b) the Seller shall transfer to CFSC, and CFSC shall acquire,
the Subsequent Contracts and the Subsequent Collateral Security to be
transferred on any Subsequent Transfer Date only upon the satisfaction of each
of the following conditions on or prior to such Subsequent Transfer Date:
(i) the Seller shall have provided the Owner Trustee and the
Indenture Trustee with an Addition Notice at least five Business Days
prior to the Subsequent Transfer Date and shall have provided any
information reasonably requested by the Indenture Trustee or the Owner
Trustee with respect to the Subsequent Contracts;
(ii) the Seller shall have delivered to CFSC a duly executed
Subsequent Transfer Agreement substantially in the form of Exhibit A
hereto (the "Subsequent Transfer Agreement"), 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 Agreement, neither the Seller nor
CFSC shall be insolvent nor shall they have been made insolvent by such
transfer nor shall they be aware of any pending insolvency;
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(iv) such transfer shall not result in a material adverse tax
consequence to the Trust, the Noteholders or the Certificateholders;
(v) the Pre-Funding Period shall not have ended;
(vi) the Seller shall have delivered to CFSC an Officer's
Certificate, substantially in the form attached to the Sale and
Servicing Agreement as Exhibit F, confirming the satisfaction of each
condition precedent and the representations specified in this Section
2.3 and in Sections 3.01, 3.02, 3.03 and 3.06 of the Sale and Servicing
Agreement;
(vii) the Seller and CFSC shall have delivered to the Trustee
Opinions of Counsel addressed to S&P, Fitch, 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;
(viii) each of the representations and warranties contained in
Section 3.03 of the Sale and Servicing Agreement shall be true and
correct.
(c) Seller covenants to transfer to CFSC pursuant to paragraph
(a) above Subsequent Contracts with an aggregate Principal Balance approximately
equal to $573,792,500.00; provided, however, that the sole remedy of CFSC with
respect to a failure of such covenant shall be to enforce the provisions of
Section 6.06 of the Sale and Servicing Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of Seller. Seller
makes the following representations and warranties, on which CFSC relies in
purchasing the Initial Contracts and the Initial Collateral Security and in
transferring the Initial Contracts and the Initial Collateral Security to the
Trust under the Sale and Servicing Agreement. Such representations are made as
of the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Initial Contracts and the Initial Collateral
Security hereunder and the sale, transfer and assignment thereof by CFSC to the
Trust under the Sale and Servicing Agreement and the pledge thereof by the Trust
to the Indenture Trustee under the Indenture. Seller and CFSC agree that CFSC
will assign to the Trust all of CFSC's rights under this Agreement and that the
Trust will thereafter be entitled to enforce this Agreement against Seller in
the Trust's own name.
(a) Representations Regarding Contracts. The representations
and warranties set forth in Sections 3.02, 3.03 and 3.04 of the Sale
and Servicing Agreement are true and correct.
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(b) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Initial Contracts and the Initial Collateral
Security transferred to CFSC.
(c) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of its property or the conduct of its business
requires such qualification.
(d) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and its Related
Documents and to carry out its terms and their terms, respectively;
Seller has full power and authority to sell and assign the Initial
Contracts and the Initial Collateral Security to be sold and assigned
to and deposited with CFSC hereunder and has duly authorized such sale
and assignment to CFSC by all necessary corporate action; and the
execution, delivery and performance of this Agreement and Seller's
Related Documents have been duly authorized by Seller by all necessary
corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and
Seller's Related Documents have been duly executed and delivered, shall
effect a valid sale, transfer and assignment of the Initial Contracts
and the Initial Collateral Security, enforceable against Seller and
creditors of and purchasers from Seller; and this Agreement and
Seller's Related Documents constitute legal, valid and binding
obligations of Seller enforceable in accordance with their respective
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations
on the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(f) No Violation. The consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents
shall not conflict with, result in any breach of any of the terms and
provisions of or constitute (with or without notice, lapse of time or
both) a default under, the certificate of incorporation or bylaws of
Seller, or any indenture, agreement, mortgage, deed of trust or other
instrument to which Seller is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, other than this Agreement
and the Sale and Servicing Agreement and the Indenture, or violate any
law, order, rule or regulation applicable to Seller of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over Seller or any of
its properties.
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(g) No Proceedings. There are no proceedings or investigations
pending or, to Seller's knowledge, threatened against Seller, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over Seller or its
properties (i) asserting the invalidity of this Agreement or any of the
Related Documents, (ii) seeking to prevent the issuance of the Notes or
the Certificates or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (iii)
seeking any determination or ruling that might materially and adversely
affect the performance by Seller of its obligations under, or the
validity or enforceability of, this Agreement or any of the Related
Documents or (iv) seeking to affect adversely the federal income tax or
other federal, state or local tax attributes of, or seeking to impose
any excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Initial Contracts and the Initial Collateral
Security hereunder or under the Sale and Servicing Agreement or pledged
under the Indenture.
(h) Chief Executive Office. The chief executive office of
Seller is located at 1100 Landmark Towers, 000 Xx. Xxxxx Xxxxxx, Xxxxx
Xxxx, Xxxxxxxxx 00000-0000.
SECTION 3.2. Representations and Warranties of CFSC. CFSC
makes the following representations and warranties, on which Seller relies in
selling, assigning, transferring and conveying the Initial Contracts and the
Initial Collateral Security to CFSC hereunder. Such representations are made as
of the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Initial Contracts and the Initial Collateral
Security hereunder and the sale, transfer and assignment thereof by CFSC to the
Trust under the Sale and Servicing Agreement and the pledge thereof under the
Indenture.
(a) Organization and Good Standing. CFSC has been duly
organized and is validly existing and in good standing as a corporation
under the laws of the State of Minnesota, with the power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is currently conducted, and had
at all relevant times, and has, full power, authority and legal right
to acquire and own the Initial Contracts and the Initial Collateral
Security and to transfer the Initial Contracts and the Initial
Collateral Security to the Trust pursuant to the Sale and Servicing
Agreement.
(b) Due Qualification. CFSC is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions where the failure
to do so would materially and adversely affect (i) CFSC's ability to
acquire the Initial Contracts or the Initial Collateral Security, (ii)
the validity or enforceability of the Initial Contracts and the Initial
Collateral Security or (iii) CFSC's ability to perform its obligations
hereunder and under the Related Documents.
(c) Power and Authority. CFSC has the power, authority and
legal right to execute and deliver this Agreement and its Related
Documents and to carry out the terms hereof and thereof and to acquire
the Initial Contracts and the Initial Collateral Security hereunder;
and the execution, delivery and performance of this Agreement and its
Related
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Documents and all of the documents required pursuant hereto or thereto
have been duly authorized by CFSC by all necessary action.
(d) No Consent Required. CFSC is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery
or performance of this Agreement and the Related Documents, except for
such as have been obtained, effected or made.
(e) Binding Obligation. This Agreement and each of its Related
Documents constitutes a legal, valid and binding obligation of CFSC,
enforceable against CFSC in accordance with its terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation and other similar laws and
to general equitable principles.
(f) No Violation. The execution, delivery and performance by
CFSC of this Agreement, the consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents do
not and will not conflict with, result in any breach of any of the
terms and provisions of or constitute (with or without notice or lapse
of time) a default under the articles of incorporation or bylaws of
CFSC, or conflict with or breach any of the terms or provisions of, or
constitute (with or without notice or lapse of time) a default under,
any indenture, agreement, mortgage, deed of trust or other instrument
to which CFSC is a party or by which CFSC is bound or to which any of
its properties are subject, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument
(other than the Sale and Servicing Agreement and the Indenture), or
violate any law, order, rule or regulation, applicable to CFSC or its
properties, of any federal or state regulatory body or any court,
administrative agency, or other governmental instrumentality having
jurisdiction over CFSC or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of CFSC, threatened against CFSC, before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over CFSC or its
properties: (i) asserting the invalidity of this Agreement or any of
the Related Documents, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or any of the
Related Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by CFSC of its
obligations under, or the validity or enforceability of, this Agreement
or any of the Related Documents or (iv) that may adversely affect the
federal or state income tax attributes of, or seeking to impose any
excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Initial Contracts and the Initial Collateral
Security hereunder or the transfer of the Initial Contracts and the
Initial Collateral Security to the Trust pursuant to the Sale and
Servicing Agreement or pledged under the Indenture.
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In the event of any breach of a representation and warranty made by CFSC
hereunder, Seller covenants and agrees that it will not take any action to
pursue any remedy that it may have hereunder, in law, in equity or otherwise,
until a year and a day have passed since the date on which all Notes,
Certificates or other similar securities issued by the Trust, or a trust or
similar vehicle formed by CFSC, have been paid in full. Seller and CFSC agree
that damages will not be an adequate remedy for such breach and that this
covenant may be specifically enforced by CFSC or by the Owner Trustee on behalf
of the Trust.
ARTICLE IV
COVENANTS OF THE SELLER
SECTION 4.1. Transfer of Contracts.
Seller has filed a form UCC-1 financing statement regarding
the sale of the Contracts to CFSC, and shall file continuation statements in
respect of such UCC-1 financing statement as if such financing statement were
necessary to perfect such sale. Seller shall take any other actions necessary to
maintain the perfection of the sale of the Contracts to CFSC.
SECTION 4.2. Costs and Expenses. The Seller shall pay all
reasonable costs and disbursements in connection with the performance of its
obligations hereunder and under each Subsequent Transfer Agreement and its
Related Documents.
SECTION 4.3. Indemnification.
(a) Seller will defend and indemnify CFSC against any and all
costs, expenses, losses, damages, claims and liabilities, including reasonable
fees and expenses of counsel and expenses of litigation arising out of or
resulting from the use or ownership of any Product related to a Contract by
Seller or the Servicer or any Affiliate of either. Notwithstanding any other
provision of this Agreement, the obligation of Seller under this Section shall
not terminate upon a Service Transfer pursuant to Article VII of the Sale and
Servicing Agreement, except that the obligation of Seller under this Section 4.3
shall not relate to the actions of any subsequent Servicer after a Service
Transfer.
(b) No obligation or liability to any Obligor under any of the
Contracts is intended to be assumed by CFSC under or as a result of this
Agreement and the transactions contemplated hereby and, to the maximum extent
permitted and valid under mandatory provisions of law, CFSC expressly disclaims
such assumption.
(c) Seller agrees to pay, and to indemnify, defend and hold
harmless CFSC from, any taxes which may at any time be asserted with respect to,
and as of the date of, the transfer of the Contracts to CFSC, including, without
limitation, any sales, gross receipts, general corporation, personal property,
privilege or license taxes and costs, expenses and reasonable counsel fees in
defending against the same, whether arising by reason of the acts to be
performed by Seller under this Agreement or imposed against CFSC.
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(d) Indemnification under this Section 4.3 shall include,
without limitation, reasonable fees and expenses of counsel and expenses of
litigation. If the Originator has made any indemnity payments to CFSC pursuant
to this Section 4.3 and CFSC thereafter collects any of such amounts from
others, CFSC will repay such amounts collected to Seller, as the case may be,
without interest.
SECTION 4.4. Financial Statement Disclosure. Conseco Finance's
financial statements will disclose that the Subsequent Contracts have been
transferred by Conseco Finance to Conseco Securitizations, and by Conseco
Securitizations to the Trust, and are not available to satisfy claims of Conseco
Finance's creditors.
ARTICLE V
REPURCHASES
SECTION 5.1. Repurchase of Contracts Upon Breach of Warranty.
(a) Upon the occurrence of a Repurchase Event, Seller shall,
unless such breach shall have been cured in all material respects, repurchase
such Contract from the Trust pursuant to Section 3.05 of the Sale and Servicing
Agreement. It is understood and agreed that the obligation of Seller to
repurchase any Contract as to which a breach has occurred and is continuing and
the indemnity obligations relating thereto shall, if such obligation is
fulfilled, constitute the only remedies against Seller for such breach available
to CFSC, the Noteholders, the Indenture Trustee on behalf of the Noteholders,
the Certificateholders or the Owner Trustee on behalf of the Certificateholders.
The provisions of this Section 5.1 are intended to grant the Owner Trustee and
the Indenture Trustee a direct right against Seller to demand performance
hereunder, and in connection therewith, Seller waives any requirement of prior
demand against CFSC with respect to such repurchase obligation. Any such
purchase shall take place in the manner specified in Section 3.06 of the Sale
and Servicing Agreement. Notwithstanding any other provision of this Agreement,
any Subsequent Transfer Agreement or the Sale and Servicing Agreement or any
Subsequent Transfer Agreement to the contrary, the obligation of Seller under
this Section shall not terminate upon a termination of Seller as Servicer under
the Sale and Servicing Agreement and shall be performed in accordance with the
terms hereof notwithstanding the failure of the Servicer or CFSC to perform any
of their respective obligations with respect to such Loan under the Sale and
Servicing Agreement.
(b) In addition to the foregoing and notwithstanding whether
the related Contract shall have been purchased by Seller, Seller shall indemnify
the Owner Trustee, the Trust, the Indenture Trustee, the Noteholders and the
Certificateholders against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or incurred by any of them as a result of third party claims
arising out of the events or facts giving rise to such Repurchase Events.
SECTION 5.2. Reassignment of Purchased Contracts. Upon deposit
of the Repurchase Price of any Contract repurchased or replaced by Seller under
Section 5.1, CFSC shall cause the Owner Trustee and the Indenture Trustee to
take such steps as may be reasonably requested by Seller in order to assign to
Seller all of CFSC's and the Trust's right, title and
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interest in and to such Contract and all security and documents and all
Collateral Security conveyed to CFSC and the Trust directly relating thereto,
without recourse, representation or warranty, except as to the absence of liens,
charges or encumbrances created by or arising as a result of actions of CFSC,
the Owner Trustee or the Indenture Trustee. Such assignment shall be a sale and
assignment outright, and not for security. If, following the reassignment of a
Contract, in any enforcement suit or legal proceeding, it is held that Seller
may not enforce any such Contract on the ground that it shall not be a real
party in interest or a holder entitled to enforce the Contract, CFSC and the
Owner Trustee shall, at the expense of Seller, take such steps as Seller deems
reasonably necessary to enforce the Contract, including bringing suit in CFSC's
or the Owner Trustee's name.
SECTION 5.3. Waivers. No failure or delay on the part of CFSC,
or the Owner Trustee as assignee of CFSC, in exercising any power, right or
remedy under this Agreement or under any Subsequent Transfer Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other or future exercise thereof or the
exercise of any other power, right or remedy.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Liability of Seller. Seller shall be liable in
accordance herewith only to the extent of the obligations in this Agreement or
in any Subsequent Transfer Agreement specifically undertaken by Seller and the
representations and warranties of Seller.
SECTION 6.2. Merger or Consolidation of Seller or CFSC. Any
corporation or other entity (i) into which Seller or CFSC may be merged or
consolidated, (ii) resulting from any merger or consolidation to which Seller or
CFSC is a party or (iii) succeeding to the business of Seller or CFSC, in the
case of CFSC, which corporation has articles of incorporation containing
provisions relating to limitations on business and other matters substantively
identical to those contained in CFSC's articles of incorporation, provided that
in any of the foregoing cases such corporation shall execute an agreement of
assumption to perform every obligation of Seller or CFSC, as the case may be,
under this Agreement and each Subsequent Transfer Agreement and, whether or not
such assumption agreement is executed, shall be the successor to Seller or CFSC,
as the case may be, hereunder and under each such Subsequent Transfer Agreement
(without relieving Seller or CFSC of its responsibilities hereunder, if it
survives such merger or consolidation) without the execution or filing of any
document or any further act by any of the parties to this Agreement or each
Subsequent Transfer Agreement. Seller or CFSC shall promptly inform the other
party and the Owner Trustee and the Indenture Trustee of such merger,
consolidation or purchase and assumption. Notwithstanding the foregoing, as a
condition to the consummation of the transactions referred to in clauses (i),
(ii) and (iii) above, (x) immediately after giving effect to such transaction,
no representation or warranty made pursuant to Sections 3.1 and 3.2 and this
Agreement, or similar representation or warranty made in any Subsequent Transfer
Agreement, shall have been breached (for purposes hereof, such representations
and warranties shall speak as of the date of the consummation of such
transaction), (y) Seller or CFSC, as applicable, shall have delivered written
notice of such consolidation, merger or purchase and assumption to the Rating
Agencies prior to the consummation of such transaction
-11-
and shall have delivered to the Owner Trustee and the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply with
this Section 6.3 and that all conditions precedent, if any, provided for in this
Agreement, or in each Subsequent Transfer Agreement, relating to such
transaction have been complied with, and (z) Seller or CFSC, as applicable,
shall have delivered to the Owner Trustee and the Indenture Trustee an Opinion
of Counsel, stating that, in the opinion of such counsel, either (A) all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary to preserve and protect the interest
of the Owner Trustee and the Indenture Trustee in the Trust Property and
reciting the details of the filings or (B) no such action shall be necessary to
preserve and protect such interest.
SECTION 6.3. Limitation on Liability of Seller and Others.
Seller shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations under this Agreement, any
Subsequent Transfer Agreement or its Related Documents and that in its opinion
may involve it in any expense or liability.
SECTION 6.4. Amendment.
(a) This Agreement and any Subsequent Transfer Agreement may
be amended by Seller and CFSC and without the consent of the Owner Trustee, the
Indenture Trustee, or any of the Noteholders or Certificateholders (A) to cure
any ambiguity or (B) to correct any provisions in this Agreement or any such
Subsequent Transfer Agreement; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel delivered to the Owner Trustee and the
Indenture Trustee, adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time by
Seller and CFSC, with the prior written consent of the Owner Trustee, the
Indenture Trustee, a Certificate Majority and the Holders of Notes representing,
in the aggregate, 66 2/3% or more of the Aggregate Securities Principal Balance,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement, or of modifying in any
manner the rights of the Noteholders or Certificateholders; provided, however,
that no such amendment shall (i) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on the Contracts
or, distributions that are required to be made on any Note or Certificate or
(ii) reduce the aforesaid percentage required to consent to any such amendment
or any waiver hereunder, without the consent of the Holders of all Notes and
Certificates then outstanding.
(c) Concurrently with the solicitation of any consent pursuant
to this Section 6.4, CFSC shall furnish written notification to S&P and Fitch.
Promptly after the execution of any amendment or consent pursuant to this
Section 6.4, CFSC shall furnish written notification of the substance of such
amendment to S&P, Fitch, each Noteholder and Certificateholder.
(d) It shall not be necessary for the consent of Noteholders
and Certificateholders pursuant to this Section to approve the particular form
of any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance
-12-
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Noteholders and Certificateholders
shall be subject to such reasonable requirements as the Owner Trustee or
Indenture Trustee, as applicable, may prescribe, including the establishment of
record dates. The consent of any Holder of a Note or a Certificate given
pursuant to this Section or pursuant to any other provision of this Agreement
shall be conclusive and binding on such Holder and on all future Holders of such
Note or Certificate and of any Note or Certificate issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon the Note or Certificate.
SECTION 6.5. Notices. All demands, notices and communications
to the Seller or CFSC hereunder shall be in writing, personally delivered, or
sent by telecopier (subsequently confirmed in writing), reputable overnight
courier or mailed by certified mail, return receipt requested, and shall be
deemed to have been given upon receipt (a) in the case of Seller, to Conseco
Finance Corp., 1100 Landmark Towers, 000 Xx. Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxx
00000-0000, Attention: Chief Financial Officer, or such other address as shall
be designated by Seller in a written notice delivered to the other party or to
the Owner Trustee or Indenture Trustee, as applicable, or (b) in case of CFSC,
to Conseco Finance Securitizations Corp., 300 Landmark Towers, 000 Xx. Xxxxx
Xxxxxx, Xxxxx Xxxx, Xxxxxxxxx 00000-0000, Attention: Chief Financial Officer.
SECTION 6.6. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement and the Related Documents set forth the
entire understanding of the parties relating to the subject matter hereof, and
all prior understandings, written or oral, are superseded by this Agreement and
the Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 6.7. Severability of Provisions. If any one or more of
the covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.8. Intention of the Parties. The execution and
delivery of this Agreement and of each Subsequent Transfer Agreement shall
constitute an acknowledgment by Seller and CFSC that they intend that each
assignment and transfer herein and therein contemplated constitute a sale and
assignment outright, and not for security, of the Initial Contracts and the
Initial Collateral Security and the Subsequent Contracts and Subsequent
Collateral Security, as the case may be, conveying good title thereto free and
clear of any Liens, from Seller to CFSC, and that the Initial Contracts and the
Initial Collateral Security and the Subsequent Contracts and Subsequent
Collateral Security shall not be a part of Seller's estate in the event of the
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding,
or other proceeding under any federal or state bankruptcy or similar law, or the
occurrence of another similar event, of, or with respect to, Seller. In the
event that such conveyance is determined to be made as security for a loan made
by CFSC, the Trust or the Certificateholders to Seller, the parties intend that
Seller shall have granted to CFSC a security interest in all of Seller's right,
title and interest in and to the Initial Contracts and the Initial Collateral
Security
-13-
and the Subsequent Contracts and Subsequent Collateral Security, as the case may
be, conveyed pursuant to Section 2.1 hereof or pursuant to any Subsequent
Transfer Agreement, and that this Agreement and each Subsequent Transfer
Agreement shall constitute a security agreement under applicable law.
SECTION 6.9. Governing Law. This Agreement shall be construed
in accordance with, the laws of the State of Minnesota without regard to the
principles of conflicts of laws thereof, and the obligations, rights and
remedies of the parties under this Agreement shall be determined in accordance
with such laws.
SECTION 6.10. Counterparts. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 6.11. Conveyance of the Initial Contracts and the
Initial Collateral Security to the Trust. Seller acknowledges that CFSC intends,
pursuant to the Sale and Servicing Agreement, to convey the Initial Contracts
and the Initial Collateral Security, together with its rights under this
Agreement, to the Trust on the date hereof. Seller acknowledges and consents to
such conveyance and waives any further notice thereof and covenants and agrees
that the representations and warranties of Seller contained in this Agreement
and the rights of CFSC hereunder are intended to benefit the Owner Trustee, the
Trust, the Indenture Trustee and the Noteholders and Certificateholders. In
furtherance of the foregoing, Seller covenants and agrees to perform its duties
and obligations hereunder, in accordance with the terms hereof for the benefit
of the Owner Trustee, the Trust, the Indenture Trustee and the Noteholders and
Certificateholders and that, notwithstanding anything to the contrary in this
Agreement, Seller shall be directly liable to the Indenture Trustee, Owner
Trustee and the Trust (notwithstanding any failure by the Servicer or CFSC to
perform its duties and obligations hereunder or under the Sale and Servicing
Agreement) and that the Owner Trustee or the Indenture Trustee may enforce the
duties and obligations of Seller under this Agreement against Seller for the
benefit of the Trust, the Noteholders and the Certificateholders.
SECTION 6.12. Nonpetition Covenant. Neither CFSC nor Seller
shall petition or otherwise invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Trust
(or, in the case of Seller, against CFSC) under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Trust (or
CFSC) or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Trust (or CFSC).
-14-
IN WITNESS WHEREOF, the parties have caused this Transfer Agreement to
be duly executed by their respective officers as of the day and year first above
written.
CONSECO FINANCE SECURITIZATIONS CORP.,
as Purchaser
By _______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Treasurer
CONSECO FINANCE CORP., as Seller
By _______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Treasurer
SCHEDULE A
SCHEDULE OF INITIAL CONTRACTS
[Delivered pursuant to Section 2.02(c) of the Sale and Servicing Agreement]
A-1
EXHIBIT A
FORM OF
SUBSEQUENT TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
CONSECO FINANCE CORP.
Seller
dated as of
--------, -----
SUBSEQUENT TRANSFER AGREEMENT, dated as of ________, _______, between
Conseco Finance Securitizations Corp., a Minnesota corporation, as purchaser
("CFSC"), and Conseco Finance Corp., a Delaware corporation, as seller
("Seller").
W I T N E S S E T H:
WHEREAS, Seller and CFSC are parties to a Transfer Agreement, dated as
of December 1, 1999 (as amended or supplemented, the "Transfer Agreement");
WHEREAS, pursuant to the Transfer Agreement and this Agreement, CFSC
has agreed to purchase from Seller and Seller is transferring to CFSC the
Subsequent Contracts and the Subsequent Collateral Security.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, CFSC and Seller, intending to be legally
bound, hereby agree as follows:
1. Defined Terms. Capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned to such terms in the Transfer
Agreement.
"Schedule of Subsequent Contracts" means the schedule of all home
improvement and home equity contracts sold and transferred pursuant to this
Agreement attached hereto as Schedule A, which Schedule of Subsequent Contracts
shall supplement the Schedule of Initial Contracts attached to the Transfer
Agreement.
"Subsequent Cutoff Date" shall mean, with respect to the Subsequent
Contracts conveyed hereby, ________________, _____.
"Subsequent Collateral Security" means, with respect to any Subsequent
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.
"Subsequent Contracts" means, for purposes of this Agreement, the
Contracts listed in the Schedule of Subsequent Contracts.
2. Conveyance of the Subsequent Contracts and the Subsequent Collateral
Security. Subject to the terms and conditions of this Agreement and the Transfer
Agreement, Seller hereby sells, transfer, assigns, and otherwise conveys to CFSC
without recourse (but
Ex. A-1
without limitation of its repurchase, indemnity and other obligations in this
Agreement and the Transfer Agreement), and CFSC hereby purchases, all right,
title and interest of Seller in and to the Subsequent Contracts and the
Subsequent Collateral Security. It is the intention of Seller and CFSC that the
transfer and assignment contemplated by this Agreement shall constitute a sale
of the Subsequent Contracts and the Subsequent Collateral Security from Seller
to CFSC, conveying good title thereto free and clear of any Liens, and the
Subsequent Contracts and the Subsequent Collateral Security shall not be part of
Seller's estate in the event of the filing of a bankruptcy petition by or
against Seller under any bankruptcy or similar law. Conseco Finance's financial
statements will disclose that the Subsequent Contracts have been transferred by
Conseco Finance to Conseco Securitizations, and by Conseco Securitizations to
the Trust, and are not available to satisfy claims of Conseco Finance's
creditors.
3. Purchase Price. Simultaneously with the conveyance of the Subsequent
Contracts and the Subsequent Collateral Security to CFSC, CFSC has paid or
caused to be paid to or upon the order of Seller, by wire transfer of
immediately available funds (representing certain proceeds to CFSC from the sale
of the Notes on deposit in the Pre-Funding Account), the amount of funds as
specified below:
(i) Principal Balance of Subsequent Contracts: $__________
(ii) Proceeds to Seller: $_____________
4. Representations of Warranties of Seller. Seller makes the following
representations and warranties, on which CFSC relies in purchasing the
Subsequent Contracts and the Subsequent Collateral Security and in transferring
the Subsequent Contracts and the Subsequent Collateral Security to the Trust
under the Subsequent Transfer Agreement. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Subsequent Contracts and the Subsequent Collateral
Security hereunder, and the sale, transfer and assignment thereof by CFSC to the
Trust under the Subsequent Transfer Agreement and the pledge thereof pursuant to
the Indenture. Seller and CFSC agree that CFSC will assign to the Trust all of
CFSC's rights under this Agreement and the Transfer Agreements, and that the
Trust will thereafter be entitled to enforce this Agreement and the Transfer
Agreements against Seller in the Trust's own name.
(a) Schedule of Representations. The representations and
warranties set forth in Sections 3.02, 3.03 and 3.04 of the Sale and
Servicing Agreement are true and correct.
(b) Organization and Good Standing. Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Subsequent Contracts and the Subsequent
Collateral Security transferred to CFSC.
(c) Due Qualification. Seller is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all
Ex. A-2
jurisdictions in which the ownership or lease of its property or the
conduct of its business requires such qualification.
(d) Power and Authority. Seller has the power and authority to
execute and deliver this Agreement and the Transfer Agreement and to
carry out its terms and their terms, respectively; Seller has full
power and authority to sell and assign the Subsequent Contracts and the
Subsequent Collateral Security to be sold and assigned to and deposited
with CFSC hereunder and has duly authorized such sale and assignment to
CFSC by all necessary corporate action; and the execution, delivery and
performance of this Agreement and the Transfer Agreement have been duly
authorized by Seller by all necessary corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and the
Transfer Agreement have been duly executed and delivered, shall effect
a valid sale, transfer and assignment of the Subsequent Contracts and
the Subsequent Collateral Security, enforceable against Seller and
creditors of and purchasers from Seller; and this Agreement and the
Transfer Agreement constitute legal, valid and binding obligations of
Seller enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(f) No Violation. The consummation of the transactions
contemplated by this Agreement and the Transfer Agreement and the
fulfillment of the terms of this Agreement and the Transfer Agreement
shall not conflict with, result in any breach of any of the terms and
provisions of or constitute (with or without notice, lapse of time or
both) a default under, the certificate of incorporation or bylaws of
Seller, or any indenture, agreement, mortgage, deed of trust or other
instrument to which Seller is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, other than this Agreement
and the Transfer Agreement, or violate any law, order, rule or
regulation applicable to Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over Seller or any of its
properties.
(g) No Proceedings. There are no proceedings or investigations
pending or, to Seller's knowledge, threatened against Seller, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over Seller or its
properties (i) asserting the invalidity of this Agreement or the
Transfer Agreement, (ii) seeking to prevent or the consummation of any
of the transactions contemplated by this Agreement or the Transfer
Agreement, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by Seller of its
obligations under, or the validity or enforceability of, this Agreement
or the Subsequent Transfer Agreement, or (iv) seeking to affect
adversely the federal income tax or other federal, state or local tax
attributes of, or seeking to impose any excise, franchise,
Ex. A-3
transfer or similar tax upon, the transfer and acquisition of the
Subsequent Contracts and the Subsequent Collateral Security hereunder
or under the Transfer Agreement.
(h) Insolvency. As of the Subsequent Cutoff Date and the
Subsequent Transfer Date, neither Seller nor CFSC is insolvent nor will
either of them have been made insolvent after giving effect to the
conveyance set forth in Section 2 of this Agreement, nor are any of
them aware of any pending insolvency.
(i) Chief Executive Office. The chief executive office of
Seller is located at 1100 Landmark Towers, 000 Xx. Xxxxx Xxxxxx, Xxxxx
Xxxx, Xxxxxxxxx 00000-0000.
5. Representations and Warranties of CFSC. CFSC makes the
following representations and warranties, on which Seller relies in selling,
assigning, transferring and conveying the Subsequent Contracts and the
Subsequent Collateral Security to CFSC hereunder. Such representations are made
as of the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Subsequent Contracts and the Subsequent
Collateral Security hereunder and the sale, transfer and assignment thereof by
CFSC to the Trust under the Subsequent Transfer Agreement and the pledge thereof
under the Indenture.
(a) Organization and Good Standing. CFSC has been duly
organized and is validly existing and in good standing as a corporation
under the laws of the State of Minnesota, with the power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is currently conducted, and had
at all relevant times, and has, full power, authority and legal right
to acquire and own the Subsequent Contracts and the Subsequent
Collateral Security, and to transfer the Subsequent Contracts and the
Subsequent Collateral Security to the Trust pursuant to this Transfer
Agreement and the pledge thereof under the Indenture.
(b) Due Qualification. CFSC is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions where the failure
to do so would materially and adversely affect CFSC's ability to
acquire the Subsequent Contracts or the Subsequent Collateral Security
or the validity or enforceability of the Subsequent Contracts and the
Subsequent Collateral Security or to perform CFSC's obligations
hereunder and under the Transfer Agreement.
(c) Power and Authority. CFSC has the power, authority and
legal right to execute and deliver this Agreement and to carry out the
terms hereof and to acquire the Subsequent Contracts and the Subsequent
Collateral Security hereunder; and the execution, delivery and
performance of this Agreement and all of the documents required
pursuant hereto have been duly authorized by CFSC by all necessary
action.
(d) No Consent Required. CFSC is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery
or performance of this Agreement and the Transfer Agreement, except for
such as have been obtained, effected or made.
Ex. A-4
(e) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of CFSC, enforceable against CFSC in
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws and to general equitable principles.
(f) No Violation. The execution, delivery and performance by
CFSC of this Agreement, the consummation of the transactions
contemplated by this Agreement and the Transfer Agreement and the
fulfillment of the terms of this Agreement and the Transfer Agreement
do not and will not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or lapse
of time) a default under, the articles of incorporation or bylaws of
CFSC, or conflict with or breach any of the terms or provisions of, or
constitute (with or without notice or lapse of time) a default under,
any indenture, agreement, mortgage, deed of trust or other instrument
to which CFSC is a party or by which CFSC is bound or to which any of
its properties are subject, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument
(other than the Sale and Servicing Agreement, this Agreement, the
Transfer Agreement and the Indenture), or violate any law, order, rule
or regulation, applicable to CFSC or its properties, of any federal or
state regulatory body, any court, administrative agency, or other
governmental instrumentality having jurisdiction over CFSC or any of
its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of CFSC, threatened against CFSC, before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over CFSC or its
properties: (i) asserting the invalidity of this Agreement or the
Transfer Agreement, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or the Transfer
Agreement, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by CFSC of its
obligations under, or the validity or enforceability of, this Agreement
or the Transfer Agreement, or (iv) that may adversely affect the
federal or state income tax attributes of, or seeking to impose any
excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Subsequent Contracts and the Subsequent Collateral
Security hereunder or the transfer of the Contracts and the Subsequent
Collateral Security to the Trust pursuant to the Transfer Agreement.
In the event of any breach of a representation and warranty made by CFSC
hereunder, Seller covenants and agrees that it will not take any action to
pursue any remedy that it may have hereunder, in law, in equity or otherwise,
until a year and a day have passed since the date on which all pass-through
certificates or other similar securities issued by the Trust, or a trust or
similar vehicle formed by CFSC, have been paid in full. Seller and CFSC agree
that damages will not be an adequate remedy for such breach and that this
covenant may be specifically enforced by CFSC or by the Owner Trustee on behalf
of the Trust.
Ex. A-5
6. Conditions Precedent. The obligation of CFSC to acquire the
Subsequent Contracts and the Subsequent Collateral Security hereunder is subject
to the satisfaction, on or prior to the Subsequent Transfer Date, of the
following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Seller in Section 4 of this
Agreement and in Section 3.1 of the Transfer Agreement shall be true
and correct as of the date of this Agreement and as of the Subsequent
Transfer Date.
(b) Transfer Agreement Conditions. Each of the conditions set
forth in Section 2.3(b) of the Transfer Agreement applicable to the
conveyance of Subsequent Contracts and the Subsequent Collateral
Security shall have been satisfied.
(c) Sale and Servicing Agreement Representations and
Warranties. Each of the representations and warranties contained in
Section 3.03 of the Sale and Servicing Agreement shall be true and
correct.
(d) Additional Information. Seller shall have delivered to
CFSC such information as was reasonably requested by CFSC to satisfy
itself as to (i) the accuracy of the representations and warranties set
forth in Section 4 of this Agreement and in Section 3.1 of the Transfer
Agreement and (ii) the satisfaction of the conditions set forth in this
Section 6.
7. Ratification of Transfer Agreement. As supplemented by this
Agreement, the Transfer Agreement is in all respects ratified and confirmed and
the Transfer Agreement as so supplemented by this Agreement shall be read, taken
and construed as one and the same instrument.
8. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Minnesota without regard to the
principles of conflicts of laws thereof, and the obligations, rights and
remedies of the parties under this Agreement shall be determined in accordance
with such laws.
9. Counterparts. For the purposes of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
10. Conveyance of the Subsequent Contracts and the Subsequent
Collateral Security to the Trust. Seller acknowledges that CFSC intends,
pursuant to a Subsequent Transfer Instrument, to convey the Subsequent Contracts
and the Subsequent Collateral Security, together with its rights under this
Agreement and under the Transfer Agreement, to the Trust on the date hereof, and
the Owner Trust intends to pledge the same to the Indenture Trustee for the
benefit of the Noteholders pursuant to the Indenture. Seller acknowledges and
consents to such conveyance and waives any further notice thereof and covenants
and agrees that the representations and warranties of Seller contained in this
Agreement and the rights of CFSC hereunder and
Ex. A-6
thereunder are intended to benefit the Owner Trustee, the Trust, the Indenture
Trustee and the Noteholders and Certificateholders. In furtherance of the
foregoing, Seller covenants and agrees to perform its duties and obligations
hereunder and under the Transfer Agreement, in accordance with the terms hereof
and thereof for the benefit of the Owner Trustee, the Trust, the Indenture
Trustee and the Noteholders and Certificateholders and that, notwithstanding
anything to the contrary in this Agreement or in the Transfer Agreement, Seller
shall be directly liable to the Indenture Trustee, the Owner Trustee and the
Trust (notwithstanding any failure by CFSC to perform its duties and obligations
hereunder or under the Sale and Servicing Agreement or the Subsequent Transfer
Agreement) and that the Indenture Trustee, or the Owner Trustee may enforce the
duties and obligations of Seller under this Agreement and the Transfer Agreement
against Seller for the benefit of the Trust, the Noteholders and the
Certificateholders.
Ex. A-7
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
CONSECO FINANCE SECURITIZATIONS CORP.,
as Purchaser
By _______________________________
Xxxxxxx X. Xxxxxx
Senior Vice President and Treasurer
CONSECO FINANCE CORP., as Seller
By _______________________________
Xxxxxxx X. Xxxxxx
Senior Vice President and Treasurer
Ex. A-8
