TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
GREEN TREE FINANCIAL CORPORATION
Seller
dated as of
September 1, 1999
TABLE OF CONTENTS
Page
----
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 LOANS AND THE INITIAL
OTHER CONVEYED PROPERTY.........................................3
SECTION 2.1. Conveyance of the Initial Loans and the Initial
Other Conveyed Property..................................3
SECTION 2.2. Purchase Price of Initial Loans..........................3
SECTION 2.3. Conveyance of Subsequent Loans and Subsequent
Other Conveyed Property..................................3
ARTICLE III. REPRESENTATIONS AND WARRANTIES.................................6
SECTION 3.1. Representations and Warranties of GTFC...................6
SECTION 3.2. Representations and Warranties of CFSC...................7
ARTICLE IV. COVENANTS OF GTFC..............................................10
SECTION 4.1. Protection of Title of CFSC and the Trust...............10
SECTION 4.2. Other Liens or Interests................................10
SECTION 4.3. Indemnification.........................................10
ARTICLE V. REPURCHASES.....................................................11
SECTION 5.1. Repurchase of Loans Upon Breach of Warranty.............11
SECTION 5.2. Reassignment of Purchased Loans.........................12
SECTION 5.3. Waivers.................................................12
ARTICLE VI. MISCELLANEOUS..................................................12
SECTION 6.1. Liability of GTFC.......................................12
SECTION 6.2. Merger or Consolidation of GTFC or CFSC.................13
SECTION 6.3. Limitation on Liability of GTFC and Others..............13
SECTION 6.4. Amendment...............................................14
SECTION 6.5. Notices.................................................15
SECTION 6.6. Merger and Integration..................................15
SECTION 6.7. Severability of Provisions..............................15
SECTION 6.8. Intention of the Parties................................15
SECTION 6.9. Governing Law...........................................16
SECTION 6.10. Counterparts............................................16
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SECTION 6.11. Conveyance of the Initial Loans and the Initial
Other Conveyed Property to the Trust................16
SECTION 6.12. Nonpetition Covenant....................................16
SCHEDULES
Schedule A -- Schedule of Initial Loans
EXHIBITS
Exhibit A -- Form of Subsequent Transfer Agreement
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TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT, dated as of September 1, 1999, executed between
Conseco Finance Securitizations Corp., a Minnesota corporation, as purchaser
("CFSC"), and Green Tree Financial Corp., 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 the certain home equity loans specified in
the Schedule of Initial Loans attached hereto as Schedule A (the "Initial
Loans") and the Initial Other Conveyed Property; and
WHEREAS, CFSC has agreed to purchase from GTFC and GTFC has agreed to
transfer to CFSC the Subsequent Loans and Subsequent Other Conveyed Property in
an amount set forth herein, prior to December 14, 1999.
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 September 1,
1999, by and among Conseco Finance Securitizations Corp. (as Seller), Green Tree
Financial Corp. (in its individual capacity and as Servicer), and Home Equity
Loan Trust 1999-F (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 October 4, 1999.
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"Initial Other Conveyed Property" means all monies at any time paid or
payable on the Initial Loans or in respect thereof after the Initial Cutoff Date
(including amounts due on or before the Initial Cutoff Date but received by GTFC
after the Initial Cutoff Date), an assignment of security interests in the
related real estate, the Certificate Account (including all Eligible Investments
therein and all proceeds therefrom), all items contained in the Loan Files
relating to the Initial Loans, any and all other documents or electronic records
that GTFC keeps on file in accordance with its customary procedures relating to
the Initial Loans, the Obligors or the related real estate, property (including
the right to receive future Liquidation Proceeds) that secures an Initial Loan
and that has been acquired by or on behalf of the Trust pursuant to liquidation
of such Initial Loan, and all proceeds of the foregoing.
"Initial Loans" means the Loans listed on the Schedule of Initial Loans
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 Agreements
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 Loan by GTFC
under the Pooling and Servicing Agreement.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, dated as of September 1, 1999, executed and delivered by Green Tree
Financial Corp., as Originator, Servicer and Guarantor, Conseco Finance
Securitizations Corp., as Seller, and the Trustee.
"Schedule of Initial Loans" means the schedule of all Loans sold and
transferred pursuant to this Agreement which is attached hereto as Schedule A.
"Schedule of Loans" means the Schedule of Initial Loans attached hereto as
Schedule A as supplemented by each Schedule of Subsequent Loans attached to each
Subsequent Purchase Agreement as Schedule A.
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"Schedule of Subsequent Loans" means the schedule of all Loans sold and
transferred pursuant to a Subsequent Purchase Agreement which is attached to
such Subsequent Purchase Agreement as Schedule A, which Schedule of Subsequent
Loans shall supplement the Schedule of Initial Loans.
"Subsequent Loans" means the Loans specified in the Schedule of Subsequent
Loans 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.
"Trust" means the trust created by the Pooling and Servicing 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 the Seller to the Trust pursuant to the Pooling 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 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.
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ARTICLE II
CONVEYANCE OF THE INITIAL LOANS
AND THE INITIAL OTHER CONVEYED PROPERTY
SECTION 2.1. Conveyance of the Initial Loans 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 Loans 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 Loans and the Initial
Other Conveyed Property from GTFC to CFSC, conveying good title thereto free and
clear of any Liens, and the Initial Loans 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.
SECTION 2.2. Purchase Price of Initial Loans. Simultaneously with the
conveyance of the Initial Loans and the Initial Other Conveyed Property to CFSC,
CFSC has paid or caused to be paid to or upon the order of GTFC approximately
$645,219,075 by wire transfer of immediately available funds (representing the
proceeds to CFSC from the sale of the Initial Loans 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 Loans 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 Loans (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 Loans
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
Loans 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 Rating Agencies with
an Addition Notice at least five Business Days prior to the Subsequent
Transfer Date and
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shall have provided any information reasonably requested by the Trustee
with respect to the Subsequent Loans;
(ii) GTFC shall have delivered the related Loan File for each
Subsequent Loan to the Trustee at least two Business Days prior to the
Subsequent Transfer Date;
(iii) GTFC shall have delivered to CFSC a duly executed Subsequent
Transfer Instrument substantially in the form of Exhibit A hereto (the
"Subsequent Transfer Agreement"), which shall include a List of Loans
identifying the related Subsequent Loans;
(iv) as of each Subsequent Transfer Date, as evidenced by delivery of
the Subsequent Transfer Instrument, the 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;
(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 P, 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 3.05 of the PSA;
(viii) [RESERVED];
(ix) No Subsequent Loan will have a Combined LTV greater than 100%,
and;
(x) GTFC shall have delivered assignments in recordable form to CFSC
of the mortgages, deeds of trust and security deeds relating to the
Subsequent Loans.
(c) GTFC covenants to transfer to CFSC pursuant to paragraph (a) above
Subsequent Loans with an aggregate Principal Balance approximately equal to
$-0-; provided, however, that the sole remedy of CFSC with respect to a failure
of such covenant shall be to enforce the provisions of Section 8.08 of the
Pooling and Servicing Agreement.
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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 Loans and the Initial Other Conveyed Property and in transferring the
Initial Loans 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 Loans 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 Loans. The representations and
warranties set forth in Sections 3.02, 3.03, 3.04 and 3.05 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
Loans 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 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 Loans 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 Loans and the Initial Other Conveyed
Property, enforceable against GTFC and creditors of and purchasers from
GTFC; and this Agreement and
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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 articles 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
seeking to impose any excise, franchise, transfer or similar tax upon, the
transfer and acquisition of the Initial Loans 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 Loans 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 Loans and the Initial Other Conveyed
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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 Loans
and the Initial Other Conveyed Property and to transfer the Initial Loans
and the Initial Other Conveyed Property 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 Loans or the Initial Other Conveyed Property, (ii) the validity or
enforceability of the Initial Loans 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 Loans 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.
(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
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provisions of or constitute (with or without notice or lapse of time) a
default under the certificate 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 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 Loans and the
Initial Other Conveyed Property hereunder or the transfer of the Initial
Loans and the Initial Other Conveyed Property to the Trust pursuant to the
Sale 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 Loans.
(a) On or prior to the Closing Date, or the Subsequent Transfer Date in the
case of Subsequent Loans, GTFC shall deliver the Loan Files to CFSC. GTFC has
filed a form UCC-1 financing statement regarding the sale of the Loans 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 Loans to CFSC.
(b) If at any time during the term of this Agreement GTFC does not have a
long-term senior debt rating of A- 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 Loan and assignments in recordable
form of each mortgage, deed of trust or security deed securing a Loan, 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 Loan; provided, however, that such execution and filing of the
assignments with respect to the Loans 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 Loan.
(c) If, as of the Post-Funding Payment Date, the aggregate Scheduled
Principal Balance of Loans secured by real property located in Maryland
("Maryland Loans") exceeds 10% of the Pool Scheduled Principal Balance, GTFC
shall, within sixty (60) days, submit to the appropriate recording offices the
assignments to CFSC on behalf of the Trust of the number of mortgages, deeds of
trust or security deeds required to reduce to less than 10% of the Pool
Scheduled Principal Balance the aggregate Scheduled Principal Balance of
Maryland Loans as to which such assignments are not recorded.
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
the use or ownership of any
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real estate related to a Loan by GTFC or the Servicer or any Affiliate of
either. Notwithstanding any other provision of this Agreement, the obligation of
GTFC under this Section shall not terminate upon a Service Transfer pursuant to
Article VII of the Pooling and Servicing Agreement, except that the obligation
of GTFC 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 Loans 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) GTFC 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 Loans 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 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 4.3 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 Loans 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 Loan from
the Trust pursuant to Section 3.06 of the Pooling and Servicing Agreement,
subject to the limitation of Section 3.07 of the Pooling and Servicing
Agreement. It is understood and agreed that, the obligation of GTFC to
repurchase any Loan 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 3.06 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
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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 Loan
under the Pooling and Servicing Agreement.
(b) In lieu of repurchasing a Loan when required by Section 5.1(a) of this
Agreement and Section 3.06(a) of the Pooling and Servicing Agreement, GTFC may
deliver an Eligible Substitute Loan pursuant to the provisions of Section
3.06(b) of the Pooling and Servicing Agreement.
(c) In addition to the foregoing and notwithstanding whether the related
Loan 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 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 Loans. Upon deposit of the
Repurchase Price of any Loan 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 Loan 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 Loan, in any enforcement suit
or legal proceeding, it is held that GTFC may not enforce any such Loan on the
ground that it shall not be a real party in interest or a holder entitled to
enforce the Loan, CFSC and the Trustee shall, at the expense of GTFC, take such
steps as GTFC deems reasonably necessary to enforce the Loan, 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.
-12-
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 a certificate of incorporation containing provisions relating to
limitations on business and other matters substantively identical to those
contained in CFSC's certificate 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 and 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 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 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 6.3 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 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 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.
-13-
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
Certificateholder.
(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 Certificate
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 Loans 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.
(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 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 Certificate and of any 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.
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
-14-
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 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 GTFC in a
written notice delivered to the other party or to the Trustee 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 Loans and the Initial Other
Conveyed Property and the Subsequent Loans and Subsequent Other Conveyed
Property, as the case may be, conveying good title thereto free and clear of any
Liens, from GTFC to CFSC, and that the Initial Loans and the Initial Other
Conveyed Property and the Subsequent Loans 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 loan 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 Loans and the Initial Other Conveyed Property and
the Subsequent Loans 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.
-15-
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 Loans 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 Loans 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).
-16-
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 CORP., as Seller
By
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Treasurer
-17-
SCHEDULE A
SCHEDULE OF INITIAL LOANS
[Included as Xxxxxxxx X-0, X-0, X-0 xxx X-0 to Pooling and Servicing Agreement]
A-1
EXHIBIT A
FORM OF
SUBSEQUENT TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
GREEN TREE FINANCIAL CORP.
Seller
dated as of
________, 1999
SUBSEQUENT TRANSFER AGREEMENT, dated as of ________, 1999, between Conseco
Finance Securitizations Corp., a Minnesota corporation, as purchaser ("CFSC"),
and Green Tree Financial Corp., a Delaware corporation, as seller ("GTFC"),
pursuant to the Transfer Agreement, dated as of September 1, 1999, 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
September 1, 1999 (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
Loans 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 Loans" means the schedule of all home equity loans
sold and transferred pursuant to this Agreement attached hereto as Schedule A,
which Schedule of Subsequent Loans shall supplement the Schedule of Initial
Loans attached to the Transfer Agreement.
"Subsequent Cutoff Date" shall mean, with respect to the Subsequent Loans
conveyed hereby, _________, 1999.
"Subsequent Other Conveyed Property" means, for the purposes of this
Agreement, all monies at any time paid or payable on the Subsequent Loans
conveyed hereby or in respect thereof after the Subsequent Cutoff Date
(including amounts due on or before the Subsequent Cutoff Date but received by
GTFC after the Subsequent Cutoff 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 Loans, the Obligors or the related real estate, property
(including the right to receive future Liquidation Proceeds) that secures a
Subsequent Loan and that has been acquired by or on behalf of the Trust pursuant
to liquidation of such Subsequent Loan, and all proceeds of the foregoing.
"Subsequent Loans" means, for purposes of this Agreement, the Loans listed
in the Schedule of Subsequent Loans.
Ex. A-1
2. Conveyance of the Subsequent Loans 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 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 Loans 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 Loans and the Subsequent Other Conveyed Property from GTFC to CFSC,
conveying good title thereto free and clear of any Liens, and the Subsequent
Loans 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
Loans 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 Loans: $_______
(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 Loans and the Subsequent Other Conveyed Property and in transferring
the Subsequent Loans and the Subsequent Other Conveyed Property 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 Loans and the Subsequent Other Conveyed
Property hereunder, and the sale, transfer and assignment thereof by CFSC to the
Trust under the Subsequent Transfer Agreement. GTFC and CFSC agree that CFSC
will assign to the Trust all of CFSC's rights under the 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 Sections 3.02, 3.03 and 3.04 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
Ex. A-2
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 Loans 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.
(d) Power and Authority. GTFC has the power and authority to execute
and deliver this Agreement and the Subsequent Transfer Agreement and to
carry out its terms and their terms, respectively; GTFC has full power and
authority to sell and assign the Subsequent Loans 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 and the Subsequent Transfer Agreement have been duly
authorized by GTFC by all necessary corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and the Subsequent
Transfer Agreement have been duly executed and delivered, shall effect a
valid sale, transfer and assignment of the Subsequent Loans and the
Subsequent Other Conveyed Property, enforceable against GTFC and creditors
of and purchasers from GTFC; and this Agreement and the Subsequent Transfer
Agreement 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 Subsequent Transfer Agreement and the fulfillment of
the terms of this Agreement and the Subsequent 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 articles 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 Subsequent 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.
Ex. A-3
(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 the Subsequent Transfer
Agreement, (ii) seeking to prevent or the consummation of any of the
transactions contemplated by this Agreement or the Subsequent Transfer
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 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, transfer or similar tax upon, the transfer
and acquisition of the Subsequent Loans and the Subsequent Other Conveyed
Property hereunder or under the Subsequent Transfer Agreement.
(h) Insolvency. As of the Subsequent Cutoff 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.
(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 Loans 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 Loans and the Subsequent Other Conveyed
Property hereunder and the sale, transfer and assignment thereof by CFSC to the
Trust under the Subsequent Transfer 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 Subsequent
Loans and the Subsequent Other Conveyed Property, and to transfer the
Subsequent Loans and the Subsequent Other Conveyed Property to the Trust
pursuant to the Subsequent Transfer 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 Loans or the Subsequent Other Conveyed Property or
Ex. A-4
the validity or enforceability of the Subsequent Loans and the Subsequent
Other Conveyed Property or to perform CFSC's obligations hereunder and
under the Subsequent 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 Loans 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 and the Subsequent Transfer 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 Subsequent Transfer Agreement and the fulfillment of the
terms of this Agreement and the Subsequent 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 certificate 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 Subsequent 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 or the
Subsequent Transfer Agreement, (ii) seeking to prevent the consummation of
any of
Ex. A-5
the transactions contemplated by this Agreement or the Subsequent 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 Subsequent
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 Loans and the Subsequent Other Conveyed Property hereunder or
the transfer of the Subsequent Loans and the Subsequent Other Conveyed
Property to the Trust pursuant to the Subsequent Transfer 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 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
Loans 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 Loans and the Subsequent Other Conveyed Property shall have been
satisfied.
(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.
Ex. A-6
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 Loans and the Subsequent Other Conveyed
Property to the Trust. GTFC acknowledges that CFSC intends, pursuant to a
Subsequent Transfer Agreement, to convey the Subsequent Loans 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 the Trustee, the Trust and the Certificateholders. In furtherance of the
foregoing, GTFC 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 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 Subsequent
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-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
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Treasurer
GREEN TREE FINANCIAL CORP., as Seller
By
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Treasurer
Ex. A-8
