EXHIBIT 4.2
TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
GREEN TREE FINANCIAL CORPORATION
Seller
dated as of
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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 OTHER CONVEYED PROPERTY .............................3
SECTION 2.1. Conveyance of the Initial Contracts and the Initial
Other Conveyed Property ...............................3
SECTION 2.2. Purchase Price of Initial Contracts ...................4
SECTION 2.3. Conveyance of Subsequent Contracts and Subsequent
Other Conveyed Property ...............................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES ......................................5
SECTION 3.1. Representations and Warranties of GTFC ................5
SECTION 3.2. Representations and Warranties of CFSC ................7
ARTICLE IV
COVENANTS OF GTFC ...................................................9
SECTION 4.1. Transfer of Contracts. ................................9
SECTION 4.2. Costs and Expenses ....................................9
SECTION 4.3. Indemnification .......................................9
ARTICLE V
REPURCHASES ........................................................10
SECTION 5.1. Repurchase of Contracts Upon Breach of Warranty ......10
SECTION 5.2. Reassignment of Purchased Contracts ..................11
SECTION 5.3. Waivers ..............................................11
ARTICLE VI
MISCELLANEOUS ......................................................11
SECTION 6.1. Liability of GTFC ....................................11
SECTION 6.2. Merger or Consolidation of GTFC or CFSC ..............11
SECTION 6.3. Limitation on Liability of GTFC 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
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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 Other Conveyed Property to the Trust .........14
SECTION 6.12. Nonpetition Covenant .................................14
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 __________, 1999, executed between
Conseco Finance Securitizations Corp., a Minnesota corporation, as purchaser
("CFSC"), and Green Tree Financial Corporation, a Delaware corporation, as
seller ("GFTC").
W I T N E S S E T H:
WHEREAS, CFSC has agreed to purchase from GTFC and GTFC, pursuant to
this Agreement, is transferring to CFSC certain manuactured housing contracts
specified in the Schedule of Initial Contracts attached hereto as Schedule A
(the "Initial Contracts"); and
WHEREAS, CFSC has agreed to purchase from GTFC and GTFC has agreed to
transfer to CFSC the Subsequent Contracts and Subsequent Other Conveyed Property
in an amount set forth herein.
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 GTFC, 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 Pooling and Servicing Agreement, dated as
of __________, ____, by and among Conseco Finance Securitizations Corp. (as
Seller), Green Tree Financial Corporation (in its individual capacity and as
Servicer), and [Trust] (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, ___________________, ________.
"Initial Other Conveyed Property" means all monies at any time paid or
payable on the Initial Contracts or in respect thereof after the Initial Cut-off
Date (including amounts due on or before the Initial Cut-off Date but received
by GTFC after the Initial Cut-off Date), the Certificate Account (including all
Eligible Investments therein and all proceeds therefrom), all items contained in
the Contract Files relating to the Initial Contracts, any and all other
documents or electronic records that GTFC keeps on file in accordance with its
customary procedures
relating to the Initial Contracts, the Obligors (including the right to receive
future Liquidation Proceeds) and that has been acquired by or on behalf of the
Trust pursuant to liquidation of such Initial Contract, and all proceeds of the
foregoing.
"Initial Contracts" means the Contracts listed on the Schedule of
Initial Contracts attached hereto as Schedule A.
"Other Conveyed Property" means the Initial Other Conveyed Property
conveyed by GTFC to CFSC pursuant to this Agreement together with any and all
Subsequent Other Conveyed Property conveyed by GTFC to CFSC pursuant to each
Subsequent Purchase Agreement.
"Related Documents" means the Certificates, the Pooling and Servicing
Agreement, each Subsequent Transfer Agreement and the Underwriting Agreement
among GTFC, CFSC and the underwriters of the Certificates. The Related Documents
to be executed by any party are referred to herein as "such party's Related
Documents," "its Related Documents" or by a similar expression.
"Repurchase Event" means the occurrence of a breach of any of GTFC's
representations and warranties hereunder or under any Subsequent Purchase
Agreement or any other event which requires the repurchase of a Contract by GTFC
under the Pooling and Servicing Agreement.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, dated as of ___________, _______, executed and delivered by Green
Tree Financial Corporation, as Originator, Servicer and Guarantor; Conseco
Finance Securitizations Corp. as Seller; and the Trustee.
"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 Purchase Agreement as Schedule A.
"Schedule of Subsequent Contracts" means the schedule of all Contracts
sold and transferred pursuant to a Subsequent Purchase Agreement which is
attached to such Subsequent Purchase 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 Purchase
Agreement.
"Subsequent Other Conveyed Property" means the Subsequent Other
Conveyed Property conveyed by GTFC to CFSC pursuant to each Subsequent Purchase
Agreement.
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"Trust" means the trust created by the Trust Agreement, the estate of
which consists of the Trust Property.
"Trustee means U.S. Bank Trust National Association, a national banking
association organized and existing under the laws of the United States, not in
its individual capacity but solely as trustee of the Trust, and any successor
trustee appointed and acting pursuant to the Trust Agreement.
"Trust Property" means the property and proceeds of every description
conveyed by CFSC to the Trust pursuant to the Pooling and Servicing Agreement
and pursuant to any Subsequent Transfer Instrument, together with the
Certificate 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 Pooling and
Servicing Agreement; 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 GTFC
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 GTFC, or
of any predecessor or successor of GTFC.
ARTICLE II
CONVEYANCE OF THE INITIAL CONTRACTS
AND THE INITIAL OTHER CONVEYED PROPERTY
SECTION 2.1. Conveyance of the Initial Contracts and the Initial Other
Conveyed Property. Subject to the terms and conditions of this Agreement, GTFC
hereby sells, transfers, assigns, and otherwise conveys to CFSC without recourse
(but without limitation of its obligations in this Agreement or in the Pooling
and Servicing Agreement), and CFSC hereby purchases, all right, title and
interest of GTFC in and to the Initial Contracts and the Initial Other Conveyed
Property. It is the intention of GTFC and CFSC that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Initial Contracts
and the Initial Other Conveyed Property from GTFC to CFSC, conveying good title
thereto free and clear of any Liens, and the Initial Contracts and the Initial
Other Conveyed Property shall not be part of GTFC's estate in the event of the
filing of a bankruptcy petition by or against GTFC under any bankruptcy or
similar law.
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SECTION 2.2. Purchase Price of Initial Contracts. Simultaneously with
the conveyance of the Initial Contracts and the Initial Other Conveyed Property
to CFSC, CFSC has paid or caused to be paid to or upon the order of GTFC
approximately $__________ by wire transfer of immediately available funds
(representing the proceeds to CFSC from the sale of the Initial Contracts after
(i) deducting expenses of $____________ 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 Other
Conveyed Property.
(a) Subject to the conditions set forth in paragraph (b) below and the
terms and conditions in the related Subsequent Purchase Agreement, in
consideration of CFSC's delivery on the related Subsequent Transfer Date to or
upon the order of GTFC of an amount equal to the purchase price of the
Subsequent Contracts (as set forth in the related Subsequent Purchase
Agreement), GTFC hereby agrees to sell, transfer, assign, and otherwise convey
to CFSC without recourse (but without limitation of its obligations in this
Agreement and the related Subsequent Purchase Agreement), and CFSC hereby agrees
to purchase all right, title and interest of GTFC in and to the Subsequent
Contracts and the Subsequent Other Conveyed Property described in the related
Subsequent Purchase Agreement.
(b) GTFC shall transfer to CFSC, and CFSC shall acquire, the Subsequent
Contracts and the Subsequent Other Conveyed Property to be transferred on any
Subsequent Transfer Date only upon the satisfaction of each of the following
conditions on or prior to such Subsequent Transfer Date:
(i) GTFC shall have provided the Trustee and the relevant
rating agencies 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 Trustee with respect to the
Subsequent Contracts;
(ii) GTFC shall have delivered the related Contract File for
each Subsequent Contract to the Trustee at least two Business Days
prior to the Subsequent Transfer Date;
(iii) CFSC shall have delivered to GTFC a duly executed
Subsequent Transfer Instrument substantially in the form of Exhibit A
hereto (the "Subsequent Transfer Agreement"), which shall include a
List of Contracts identifying the related Subsequent Contracts;
(iv) as of each Subsequent Transfer Date, as evidenced by
delivery of the Subsequent Transfer Instrument, that neither GTFC 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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(v) such transfer shall not result in a material adverse tax
consequence to the Trust (including the Master REMIC and the Subsidiary
REMIC) or the Certificateholders or Class C Certificateholders;
(vi) the Pre-Funding Period shall not have ended;
(vii) GTFC shall have delivered to CFSC an Officer's
Certificate substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit __, confirming the satisfaction of each
condition precedent and the representations specified in this Section
and in Sections _______ of the Pooling and Servicing Agreement;
(viii) RESERVED
(c) GTFC covenants to transfer to CFSC pursuant to paragraph (a) above
Subsequent Contracts with an aggregate Cut-off Date Principal Balance
approximately equal to $__________; provided, however, that the sole remedy of
CFSC with respect to a failure of such covenant shall be to enforce the
provisions of Section ___ of the Pooling and Servicing Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of GTFC. GTFC makes the
following representations and warranties, on which CFSC relies in purchasing the
Initial Contracts and the Initial Other Conveyed Property and in transferring
the Initial Contracts and the Initial Other Conveyed Property to the Trust under
the Pooling 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 Other Conveyed Property
hereunder and the sale, transfer and assignment thereof by CFSC to the Trust
under the Pooling and Servicing Agreement. GTFC 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 GTFC in the
Trust's own name.
(a) Representations Regarding Contracts. The representations
and warranties set forth in Sections 3.02 and 3.03 of the Pooling and
Servicing Agreement are true and correct.
(b) Organization and Good Standing. GTFC 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 Other
Conveyed Property transferred to CFSC.
(c) Due Qualification. GTFC is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all
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jurisdictions in which the ownership or lease of its property or the
conduct of its business requires such qualification.
(d) Power and Authority. GTFC 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; GTFC has full power
and authority to sell and assign the Initial Contracts and the Initial
Other Conveyed Property to be sold and assigned to and deposited with
CFSC hereunder and has duly authorized such sale and assignment to CFSC
by all necessary corporate action; and the execution, delivery and
performance of this Agreement and GTFC's Related Documents have been
duly authorized by GTFC by all necessary corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and GTFC's
Related Documents have been duly executed and delivered, shall effect a
valid sale, transfer and assignment of the Initial Contracts and the
Initial Other Conveyed Property, enforceable against GTFC and creditors
of and purchasers from GTFC; and this Agreement and GTFC's Related
Documents constitute legal, valid and binding obligations of GTFC
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
GTFC, or any indenture, agreement, mortgage, deed of trust or other
instrument to which GTFC 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 Pooling
and Servicing Agreement, or violate any law, order, rule or regulation
applicable to GTFC of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over GTFC or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending or, to GTFC's knowledge, threatened against GTFC, before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over GTFC or its
properties (i) asserting the invalidity of this Agreement or any of the
Related Documents, (ii) seeking to prevent the issuance of 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 GTFC 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
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seeking to impose any excise, franchise, transfer or similar tax upon,
the transfer and acquisition of the Initial Contracts and the Initial
Other Conveyed Property hereunder or under the Pooling and Servicing
Agreement.
(h) Chief Executive Office. The chief executive office of GTFC
is located at 1100 Landmark Towers, 000 Xx. Xxxxx Xxxxxx, Xxxxx Xxxx,
XX 00000-0000.
SECTION 3.2. Representations and Warranties of CFSC. CFSC makes the
following representations and warranties, on which GTFC relies in selling,
assigning, transferring and conveying the Initial Contracts and the Initial
Other Conveyed Property to CFSC hereunder. Such representations are made as of
the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Initial Contracts and the Initial Other Conveyed
Property hereunder and the sale, transfer and assignment thereof by CFSC to the
Trust under the Pooling and Servicing Agreement.
(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 Other Conveyed
Property and to transfer the Initial Contracts and the Initial Other
Conveyed Property to the Trust pursuant to the Pooling 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 Other Conveyed Property,
(ii) the validity or enforceability of the Initial Contracts and the
Initial Other Conveyed Property or (iii) CFSC's ability to perform its
obligations hereunder and under the Related Documents.
(c) Power and Authority. CFSC has the power, authority and
legal right to execute and deliver this Agreement and its Related
Documents and to carry out the terms hereof and thereof and to acquire
the Initial Contracts and the Initial Other Conveyed Property
hereunder; and the execution, delivery and performance of this
Agreement and its Related Documents and all of the documents required
pursuant hereto or thereto have been duly authorized by CFSC by all
necessary action.
(d) No Consent Required. CFSC is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery
or performance of this Agreement and the Related Documents, except for
such as have been obtained, effected or made.
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(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 Pooling and Servicing Agreement), 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 Other Conveyed
Property hereunder or the transfer of the Initial Contracts and the
Initial Other Conveyed Property to the Trust pursuant to the Pooling
and Servicing Agreement.
In the event of any breach of a representation and warranty made by CFSC
hereunder, GTFC 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 later of (i) 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, or (ii) all
Certificates or other similar securities issued by the Trust, or a trust or
similar vehicle formed by CFSC, have been paid in full. GTFC 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 Trustee on behalf of the Trust.
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ARTICLE IV
COVENANTS OF GTFC
SECTION 4.1. Transfer of Contracts.
(a) On or prior to the Closing Date, or the Subsequent Transfer Date in
the case of Subsequent Contracts, GTFC shall deliver the Contract Files to CFSC.
GTFC 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. GTFC shall take any other actions necessary to maintain the
perfection of the sale of the Contracts to CFSC
(b) If at any time during the term of this Agreement GTFC does not have
a long-term senior debt rating of ___ or higher from both S&P and Fitch (if
rated by Fitch), (i) GTFC shall within 30 days execute and deliver to CFSC (if
it has not previously done so) endorsements of each Contract and assignments in
recordable form of each mortgage, deed of trust or security deed securing a
Contract, and (ii) CFSC, at GTFC's expense, shall within 60 days file in the
appropriate recording offices the assignments to CFSC of each mortgage, deed of
trust or security deed securing a Contract; provided, however, that such
execution and filing of the assignments with respect to the Contracts shall not
be required if CFSC receives written confirmation from both S&P and Fitch that
the ratings of the Certificates would not be reduced or withdrawn by the failure
to execute and file such assignments; provided, however, that such execution and
filing shall not be required if GTFC delivers an Opinion of Counsel to the
effect that such assignment and recordation is not necessary to effect the
assignment to CFSC of GTFC's lien on the real property securing each Contract.
SECTION 4.2. Costs and Expenses. GTFC shall pay all reasonable costs
and disbursements in connection with the performance of its obligations
hereunder and under each Subsequent Purchase Agreement and its Related
Documents.
SECTION 4.3. Indemnification.
(a) GTFC 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 any breach of any of GTFC's representations and warranties contained herein
or in any Subsequent Purchase Agreement. Notwithstanding any other provision of
this Agreement, the obligation of GTFC under this Section shall not terminate
upon a Service Transfer pursuant to Article 7.02 of the Pooling and Servicing
Agreement, except that the obligation of GTFC under this Section shall not
relate to the actions of any subsequent Servicer after a Service Transfer.
(b) No obligations 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.
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(c) GTFC agrees to pay, and shall defend, indemnify 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, tangible or
intangible personal property and costs, expenses and reasonable counsel fees in
defending against the same, whether arising by reason of the acts to be
performed by GTFC under this Agreement or imposed against CFSC.
(d) Indemnification under this Section 4.3 shall include, without
limitation, reasonable fees and expenses of counsel and expenses of litigation.
If the Originator has made any indemnity payments to CFSC pursuant to this
Section and CFSC thereafter collects any of such amounts from others, CFSC will
repay such amounts collected to GTFC, as the case may be, without interest.
ARTICLE V
REPURCHASES
SECTION 5.1. Repurchase of Contracts Upon Breach of Warranty.
(a) Upon the occurrence of a Repurchase Event, GTFC 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 Pooling and Servicing Agreement,
subject to the limitation of Section 3.06 of the Pooling and Servicing
Agreement. It is understood and agreed that the obligation of GTFC to repurchase
any Contract as to which a breach has occurred and is continuing shall, if such
obligation is fulfilled, constitute the sole remedy against GTFC for such breach
available to CFSC, the Certificateholders or the Trustee on behalf of
Certificateholders. The provisions of this Section 5.1 are intended to grant the
Trustee a direct right against GTFC to demand performance hereunder, and in
connection therewith, GTFC 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 305 of the Pooling and Servicing Agreement.
Notwithstanding any other provision of this Agreement, any Subsequent Purchase
Agreement or the Pooling and Servicing Agreement or any Subsequent Transfer
Agreement to the contrary, the obligation of GTFC under this Section shall not
terminate upon a termination of GTFC as Servicer under the Pooling 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 Contract under the Pooling and
Servicing Agreement.
(b) In lieu of repurchasing a Contract when required by Section 5.1(a)
of this Agreement and Section 3.05 of the Pooling and Servicing Agreement, GTFC
may deliver an Eligible Substitute Contract pursuant to the provisions of
Section 3.05 of the Pooling and Servicing Agreement.
(c) In addition to the foregoing and notwithstanding whether the
related Contract shall have been purchased by GTFC, GTFC shall indemnify the
Trustee, the Trust 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
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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
purchase amount of any Contract repurchased or replaced by GTFC under Section
5.1, CFSC shall cause the Trustee to take such steps as may be reasonably
requested by GTFC in order to assign to GTFC all of CFSC's and the Trust's
right, title and interest in and to such Contract and all security and documents
and all Other Conveyed Property conveyed to CFSC and the Trust directly relating
thereto, without recourse, representation or warranty, except as to the absence
of liens, charges or encumbrances created by or arising as a result of actions
of CFSC or the 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 GTFC 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 Trustee shall, at the
expense of GTFC, take such steps as GTFC deems reasonably necessary to enforce
the Contract, including bringing suit in CFSC's or the Trustee's name.
SECTION 5.3. Waivers. No failure or delay on the part of CFSC, or the
Trustee as assignee of CFSC, in exercising any power, right or remedy under this
Agreement or under any Subsequent Purchase Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
remedy preclude any other or future exercise thereof or the exercise of any
other power, right or remedy.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Liability of GTFC. GTFC shall be liable in accordance
herewith only to the extent of the obligations in this Agreement or in any
Subsequent Purchase Agreement specifically undertaken by GTFC and the
representations and warranties of GTFC.
SECTION 6.2. Merger or Consolidation of GTFC or CFSC. Any corporation
or other entity (i) into which GTFC or CFSC may be merged or consolidated, (ii)
resulting from any merger or consolidation to which GTFC or CFSC is a party or
(iii) succeeding to the business of GTFC 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 GTFC or CFSC, as the case may be, under this
Agreement and each Subsequent Purchase Agreement and, whether or not such
assumption agreement is executed, shall be the successor to GTFC or CFSC, as the
case may be, hereunder and under each such Subsequent Purchase Agreement
(without relieving GTFC or CFSC of its responsibilities hereunder, if it
survives such merger or consolidation) without the execution or filing of any
document or any further act by any of the parties to this Agreement or each
Subsequent Purchase Agreement. GTFC or CFSC shall promptly inform the other
party, the 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
-11-
such transaction, no representation or warranty made pursuant to Sections 3.1
and 3.2 and this Agreement, or similar representation or warranty made in any
Subsequent Purchase Agreement, shall have been breached (for purposes hereof,
such representations and warranties shall speak as of the date of the
consummation of such transaction), (y) GTFC or CFSC, as applicable, shall have
delivered written notice of such consolidation, merger or purchase and
assumption to the relevant rating agencies prior to the consummation of such
transaction and shall have delivered to the 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 6.2 and that all
conditions precedent, if any, provided for in this Agreement, or in each
Subsequent Purchase Agreement, relating to such transaction have been complied
with, and (z) GTFC or CFSC, as applicable, shall have delivered to the 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 Trustee in the Trust 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 GTFC and Others. GTFC 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
Purchase Agreement or its Related Documents and that in its opinion may involve
it in any expense or liability.
SECTION 6.4. Amendment.
(a) This Agreement and any Subsequent Purchase Agreement may be amended
by GTFC and CFSC and without the consent of the Trustee or any of the
Certificateholders (A) to cure any ambiguity or (B) to correct any provisions in
this Agreement or any such Subsequent Purchase Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel delivered to
the Trustee, adversely affect in any material respect the interests of any
Noteholder.
(b) This Agreement may also be amended from time to time by GTFC and
CFSC, with the prior written consent of the Trustee and the Holders of
Certificates representing, in the aggregate, 66 2/3% or more of the Aggregate
Cut-off Date 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 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 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 Certificates
then outstanding.
(c) This Agreement shall not be amended under this Section without the
consent of 100% of the Certificateholders and the Class C Certificateholders if
such amendment would result in the disqualification of the Trust as a REMIC
under the Code.
-12-
(d) 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 Certificateholder and the Class C Certificateholders.
(e) It shall not be necessary for the consent of Certificateholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Trustee, as applicable, may
prescribe, including the establishment of record dates. The consent of any
Holder of 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 and of any Note issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon the Note.
SECTION 6.5. Notices. All demands, notices and communications to GTFC
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 GTFC, to Green Tree Financial
Corporation, 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 GTFC in a written notice delivered to the other party or to the
Trustee, as applicable, or (b) in case of CFSC, to Conseco Finance
Securitizations Corp., 1100 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 Purchase Agreement shall constitute an
acknowledgment by GTFC 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 Other
Conveyed Property and the Subsequent Contracts and Subsequent Other Conveyed
Property, as the case may be, conveying good title thereto free and clear of any
-13-
Liens, from GTFC to CFSC, and that the Initial Contracts and the Initial Other
Conveyed Property and the Subsequent Contracts and Subsequent Other Conveyed
Property shall not be a part of GTFC'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, GTFC. In the event
that such conveyance is determined to be made as security for a Contract made by
CFSC, the Trust or the Certificateholders to GTFC, the parties intend that GTFC
shall have granted to CFSC a security interest in all of GTFC's right, title and
interest in and to the Initial Contracts and the Initial Other Conveyed Property
and the Subsequent Contracts and Subsequent Other Conveyed Property, as the case
may be, conveyed pursuant to Section 2.1 hereof or pursuant to any Subsequent
Purchase Agreement, and that this Agreement and each Subsequent Purchase
Agreement shall constitute a security agreement under applicable law.
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 Other
Conveyed Property to the Trust. GTFC acknowledges that CFSC intends, pursuant
to the Pooling and Servicing Agreement, to convey the Initial Contracts and the
Initial Other Conveyed Property, together with its rights under this Agreement,
to the Trust on the date hereof. GTFC acknowledges and consents to such
conveyance and waives any further notice thereof and covenants and agrees that
the representations and warranties of GTFC contained in this Agreement and the
rights of CFSC hereunder are intended to benefit the Trustee, the Trust, and the
Certificateholders. In furtherance of the foregoing, GTFC covenants and agrees
to perform its duties and obligations hereunder, in accordance with the terms
hereof for the benefit of the Trustee, the Trust, and the Certificateholders and
that, notwithstanding anything to the contrary in this Agreement, GTFC shall be
directly liable to the Trustee and the Trust (notwithstanding any failure by the
Servicer or CFSC to perform its duties and obligations hereunder or under the
Pooling and Servicing Agreement) and that the Trustee may enforce the duties and
obligations of GTFC under this Agreement against GTFC for the benefit of the
Trust and the Certificateholders.
SECTION 6.12. Nonpetition Covenant. Neither CFSC nor GTFC 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 GTFC, 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
GREEN TREE FINANCIAL CORPORATION,
as Seller
By _______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Treasurer
-15-
SCHEDULE A
SCHEDULE OF INITIAL CONTRACTS
A-1
EXHIBIT A
FORM OF
SUBSEQUENT TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
GREEN TREE FINANCIAL CORPORATION
Seller
dated as of
--------, -----
SUBSEQUENT TRANSFER AGREEMENT, dated as of ____________ ____, between
Conseco Finance Securitizations Corp., a Minnesota corporation, as purchaser
("CFSC"), and Green Tree Financial Corporation, a Delaware corporation, as
seller ("GTFC"), pursuant to the Transfer Agreement, dated as of __________,
____, between CFSC and GTFC.
W I T N E S S E T H:
WHEREAS, GTFC and CFSC are parties to a Transfer Agreement, dated as of
__________, _____ (as amended or supplemented, the "Transfer Agreement");
WHEREAS, pursuant to the Transfer Agreement and this Agreement, CFSC
has agreed to purchase from GTFC and GTFC is transferring to CFSC the Subsequent
Contracts and the Subsequent Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, CFSC and GTFC, 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
manufactured housing 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 Cut-off Date" shall mean, with respect to the Subsequent
Contracts conveyed hereby, _________, ____.
"Subsequent Other Conveyed Property" means, for the purposes of this
Agreement, all monies at any time paid or payable on the Subsequent Contracts
conveyed hereby or in respect thereof after the Subsequent Cut-off Date
(including amounts due on or before the Subsequent Cut-off Date but received by
GTFC after the Subsequent Cut-off Date), an assignment of security interests in
the related real estate and any and all other documents or electronic records
that GTFC keeps on file in accordance with its customary procedures relating to
the Subsequent Contracts, the Obligors or the related real estate, property
(including the right to receive future Liquidation Proceeds) that secures a
Subsequent Contract and that has been acquired by or on behalf of the Trust
pursuant to liquidation of such Subsequent Contract, and all proceeds of the
foregoing.
"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 Other
Conveyed Property. Subject to the terms and conditions of this Agreement and
the Transfer Agreement, GTFC hereby sells, transfers, assigns, and otherwise
conveys to CFSC without
Ex.A-1
recourse (but without limitation of its obligations in this Agreement and the
Transfer Agreement), and CFSC hereby purchases, all right, title and interest of
GTFC in and to the Subsequent Contracts and the Subsequent Other Conveyed
Property. It is the intention of GTFC and CFSC that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Subsequent
Contracts and the Subsequent Other Conveyed Property from GTFC to CFSC,
conveying good title thereto free and clear of any Liens, and the Subsequent
Contracts and the Subsequent Other Conveyed Property shall not be part of GTFC's
estate in the event of the filing of a bankruptcy petition by or against GTFC
under any bankruptcy or similar law.
3. Purchase Price. Simultaneously with the conveyance of the
Subsequent Contracts and the Subsequent Other Conveyed Property to CFSC, CFSC
has paid or caused to be paid to or upon the order of GTFC, by wire transfer of
immediately available funds (representing certain proceeds to CFSC from the sale
of the Certificates on deposit in the Pre-Funding Account), the amount of funds
as specified below:
(i) Principal Balance of Subsequent Contracts: $_______
(ii) Proceeds to GTFC: $_______
4. Representations and Warranties of GTFC. GTFC makes the following
representations and warranties, on which CFSC relies in purchasing the
Subsequent Contracts and the Subsequent Other Conveyed Property and in
transferring the Subsequent Contracts and the Subsequent Other Conveyed Property
to the Trust under this 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 Other Conveyed
Property hereunder, and the sale, transfer and assignment thereof by CFSC to the
Trust hereunder. GTFC 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 GTFC in the Trust's own name.
(a) Schedule of Representations. The representations and
warranties set forth in Section 3.02 of the Pooling and Servicing
Agreement are true and correct.
(b) Organization and Good Standing. GTFC 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 Other
Conveyed Property transferred to CFSC.
(c) Due Qualification. GTFC 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.
Ex.A-2
(d) Power and Authority. GTFC has the power and authority to
execute and deliver this Agreement Agreement and to carry out its terms
and their terms, respectively; GTFC has full power and authority to
sell and assign the Subsequent Contracts and the Subsequent Other
Conveyed Property to be sold and assigned to and deposited with CFSC
hereunder and has duly authorized such sale and assignment to CFSC by
all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by GTFC by all
necessary corporate action.
(e) Valid Sale; Binding Obligations. This Agreement has been
duly executed and delivered, shall effect a valid sale, transfer and
assignment of the Subsequent Contracts and the Subsequent Other
Conveyed Property, enforceable against GTFC and creditors of and
purchasers from GTFC; and this Agreement constitutes the legal, valid
and binding obligations of GTFC enforceable in accordance with its
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 fulfillment of the terms of this
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 GTFC, or any indenture, agreement, mortgage, deed of trust or
other instrument to which GTFC 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 GTFC of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over GTFC or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending or, to GTFC's knowledge, threatened against GTFC, before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over GTFC or its
properties (i) asserting the invalidity of this Agreement, (ii) seeking
to prevent or the consummation of any of the transactions contemplated
by this Agreement, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by GTFC of its
obligations under, or the validity or enforceability of, this
Agreement, or (iv) seeking to affect adversely the federal income tax
or other federal, state or local tax attributes of, or seeking to
impose any excise, franchise, transfer or similar tax upon, the
transfer and acquisition of the Subsequent Contracts and the Subsequent
Other Conveyed Property hereunder.
(h) Insolvency. As of the Subsequent Cut-off Date and the
Subsequent Transfer Date, neither GTFC 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.
Ex.A-3
(i) Chief Executive Office. The chief executive office of GTFC
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 GTFC relies in selling, assigning,
transferring and conveying the Subsequent Contracts and the Subsequent Other
Conveyed Property to CFSC hereunder. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Subsequent Contracts and the Subsequent Other Conveyed
Property hereunder.
(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 Other
Conveyed Property, and to transfer the Subsequent Contracts and the
Subsequent Other Conveyed Property to the Trust pursuant to this
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 CFSC's ability to
acquire the Subsequent Contracts or the Subsequent Other Conveyed
Property or the validity or enforceability of the Subsequent Contracts
and the Subsequent Other Conveyed Property or to perform CFSC's
obligations hereunder.
(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
Other Conveyed Property hereunder; and the execution, delivery and
performance of this Agreement and all of the documents required
pursuant hereto have been duly authorized by CFSC by all necessary
action.
(d) No Consent Required. CFSC is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery
or performance of this Agreement, except for such as have been
obtained, effected or made.
(e) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of CFSC, enforceable against CFSC in
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws and to general equitable principles.
(f) No Violation. The execution, delivery and performance by
CFSC of this Agreement, the consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of this
Agreement do not and will not conflict with, result in
Ex.A-4
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 Pooling and Servicing Agreement and
the Transfer Agreement), 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, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this 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 (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 Other Conveyed Property to the
Trust.
In the event of any breach of a representation and warranty made by CFSC
hereunder, GTFC 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. GTFC 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 Trustee on behalf of the Trust.
6. Conditions Precedent. The obligation of CFSC to acquire the
Subsequent Contracts and the Subsequent Other Conveyed Property hereunder is
subject to the satisfaction, on or prior to the Subsequent Transfer Date, of the
following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the GTFC 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 Other Conveyed
Property shall have been satisfied.
Ex.A-5
(c) Additional Information. GTFC 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 Other
Conveyed Property to the Trust. GTFC acknowledges that CFSC intends to convey
the Subsequent Contracts and the Subsequent Other Conveyed Property, together
with its rights under this Agreement and under the Transfer Agreement, to the
Trust on the date hereof. GTFC acknowledges and consents to such conveyance and
waives any further notice thereof and covenants and agrees that the
representations and warranties of GTFC contained in this Agreement and the
rights of CFSC hereunder and thereunder are intended to benefit Trustee, the
Trust and the Certificateholders. In furtherance of the foregoing, GTFC
covenants and agrees to perform its duties and obligations hereunder and under
this Agreement and the Transfer Agreement, in accordance with the terms hereof
and thereof for the benefit of the Trustee, the Trust and the Certificateholders
and that, notwithstanding anything to the contrary in this Agreement or in the
Transfer Agreement, GTFC shall be directly liable to the Trustee and the Trust
(notwithstanding any failure by CFSC to perform its duties and obligations
hereunder or under the Pooling and Servicing Agreement or the Transfer
Agreement) and that the Trustee may enforce the duties and obligations of GTFC
under this Agreement and the Transfer Agreement against GTFC for the benefit of
the Trust and the Certificateholders.
Ex.A-6
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 _______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Treasurer
GREEN TREE FINANCIAL CORPORATION,
as Seller
By _______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Treasurer
Ex.A-7
