Exhibit 10.3
CONSECO BANK, INC.,
as Purchaser
and
GREEN TREE RETAIL SERVICES BANK, INC.,
as Seller
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Dated as of August 29, 2000
and
Amended and Restated
as of May __, 2001
TABLE OF CONTENTS
Page
----
Article I DEFINITIONS......................................................................1
Section 1.1 Definitions......................................................................1
Section 1.2 Other Definitional Provisions....................................................5
Article II PURCHASE AND CONVEYANCE OF RECEIVABLES...........................................5
Section 2.1 Purchase and Assignment of Rights................................................5
Section 2.2 Addition of Supplemental Accounts................................................7
Section 2.3 Representations and Warranties...................................................7
Section 2.4 Delivery of Documents............................................................7
Article III CONSIDERATION AND PAYMENT........................................................8
Section 3.1 Purchase Price...................................................................8
Section 3.2 Adjustments to Purchase Price....................................................8
Article IV SERVICING OF ACCOUNTS............................................................9
Section 4.1 Servicing........................................................................9
Section 4.2 Servicing and Marketing Fee......................................................9
Article V REPRESENTATIONS AND WARRANTIES...................................................9
Section 5.1 Representations and Warranties of the Seller Relating to the Seller..............9
Section 5.2 Representations and Warranties of the Seller Relating to the Agreement and .......
the Receivables.................................................................11
Section 5.3 Representations and Warranties of the Purchaser.................................12
Article VI COVENANTS.......................................................................13
Section 6.1 Covenants of the Seller.........................................................13
Section 6.2 Covenants of the Seller with Respect to Portfolio Yield, Credit Agreements
and Merchant Agreements.........................................................14
Article VII CONDITIONS PRECEDENT............................................................15
Section 7.1 Conditions to the Purchaser's Obligations Regarding Initial Receivables.........15
Section 7.2 Conditions Precedent to the Seller's Obligations................................16
Article VIII TERM AND PURCHASE TERMINATION...................................................16
Section 8.1 Term............................................................................16
Section 8.2 Purchase Termination............................................................16
i
Article IX MISCELLANEOUS PROVISIONS........................................................17
Section 9.1 Amendment.......................................................................17
Section 9.2 Governing Law...................................................................17
Section 9.3 Notices.........................................................................17
Section 9.4 Severability of Provisions......................................................18
Section 9.5 Assignment......................................................................18
Section 9.6 Acknowledgement and Agreement of the Seller.....................................18
Section 9.7 Further Assurances..............................................................19
Section 9.8 No Waiver; Cumulative Remedies..................................................19
Section 9.9 Counterparts....................................................................19
Section 9.10 Binding; Third-Party Beneficiaries..............................................19
Section 9.11 Merger and Integration..........................................................19
Section 9.12 Headings........................................................................19
Section 9.13 Schedules and Exhibits..........................................................19
Section 9.14 Survival of Representations and Warranties......................................19
Section 9.15 Nonpetition Covenant............................................................19
ii
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of August
29, 2000 and amended and restated as of May __, 2001 (this "Agreement" or this
"Amended and Restated Agreement"), by and between GREEN TREE RETAIL SERVICES
BANK INC., a South Dakota banking corporation (the "Seller") and CONSECO BANK,
INC., a Utah industrial loan corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Purchaser and the Seller have entered into the Receivables
Purchase Agreement, dated as of August 29, 2000 (the "Original Agreement"), and
the Purchaser has purchased and the Seller has sold certain Receivables
(hereinafter defined) arising in certain credit card accounts of the Seller;
WHEREAS, the Purchaser and the Seller wish to amend and restate the
Original Agreement and to continue to purchase and sell Receivables from time to
time as provided in this Amended and Restate Agreement;
WHEREAS, it is contemplated and agreed that certain of the Receivables
purchased hereunder, including Receivables purchased and sold under the Original
Agreement and Receivables purchased and sold under this Amended and Restated
Agreement, will be transferred by the Purchaser to the Trust (hereinafter
defined) in connection with the issuance of certain Notes (hereinafter defined)
and will be pledged by the Trust to the Indenture Trustee (as hereinafter
defined) for the benefit of the holders of the Notes and certain other entities
under the terms of the Indenture (as hereinafter defined); and
WHEREAS, the Seller agrees that all covenants and agreements made by
the Seller herein with respect to the Accounts (hereinafter defined) and
Receivables shall also be for the benefit of the Indenture Trustee (hereinafter
defined) and all beneficiaries of the Trust, including the holders of the
Notes.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the Original Agreement is hereby amended and restated in its entirety
as follows and it is hereby agreed by and between the Purchaser and the Seller
as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. All capitalized terms used herein or in any
certificate, document, or Conveyance Paper made or delivered pursuant hereto,
and not defined herein or therein, shall have the meaning ascribed thereto in
the Transfer and Servicing Agreement; in addition, the following words and
phrases shall have the following meanings:
"Account" shall mean (a) each Initial Account and (b) each Additional
Account (but only from and after the Addition Date with respect thereto).
"Account Owner" shall mean the Seller.
"Account Schedule" shall mean a computer file or microfiche list
delivered to the Purchaser and containing a true and complete list of Accounts,
identified by account number and
setting forth the aggregate amount outstanding in such Account and the aggregate
amount of Principal Receivables outstanding in such account as of (a) the
Initial Cut-Off Date (for the Account Schedule delivered on the Closing Date),
(b) the Amendment Date Cut-Off Date (for the Account Schedule delivered on the
Amendment Date), (c) the Addition Cut-Off Date (for any Account Schedule
relating to Additional Accounts), and (d) the applicable Removal Date in the
case of Removed Accounts.
"Additional Account" shall mean each Account owned by the Seller and
designated pursuant to Section 2.2.
"Addition Cut-Off Date" shall mean with respect to Additional Accounts,
the date specified as such in the notice delivered with respect thereto pursuant
to Section 2.2.
"Addition Date" shall mean with respect to Additional Accounts, the
date from and after which such Additional Accounts are to be included as
Accounts pursuant to Section 2.2.
"Addition Notice Date" shall have the meaning specified in Section 2.2.
"Agreement" shall mean this Amended and Restated Receivables Purchase
Agreement and all amendments hereof and supplements hereto.
"Amendment Date" shall mean the date this Amended and Restated
Agreement becomes effective which shall be May __, 2001.
"Amendment Date Cut-Off Date" shall mean _________ , 2001.
"Closing Date" shall mean August 29, 2000.
"Conveyance" shall have the meaning specified in subsection 2.1(a).
"Conveyance Papers" shall have the meaning specified in subsection
5.1(c).
"Credit Adjustment" shall have the meaning specified in Section 3.2.
"Debtor Relief Laws" shall mean (i) the Bankruptcy Code of the United
States of America and (ii) all other applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization,
suspension of payments, readjustment of debt, marshalling of assets or similar
debtor relief laws of the United States, any state or any foreign country from
time to time in effect affecting the rights of creditors generally.
"Finance Charge Receivables" shall mean all Receivables in the Accounts
which would be treated as "Finance Charge Receivables" in accordance with the
definition for such term in the Transfer and Servicing Agreement.
"Governmental Authority" shall mean the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Indenture" shall mean the Master Indenture dated as of May 1, 2001
among the Trust, U.S. Bank Trust National Association, as Indenture Trustee and
securities intermediary and the
2
Purchaser, as servicer, as such Master Indenture shall be amended and
supplemented from time to time.
"Indenture Trustee" shall mean U.S. Bank Trust National Association, a
national banking association, the institution executing the Indenture as, and
acting in the capacity of the Indenture Trustee thereunder, or its successor in
interest, or any successor trustee appointed as provided in the Indenture.
"Initial Account" shall mean each credit account which account is
identified in the Account Schedule delivered to the Purchaser by the Seller
pursuant to Section 2.1(c) on or before the Closing Date.
"Initial Cut-Off Date" shall mean the close of business on July 31,
2000.
"Insolvency Event" shall have the meaning specified in Section 8.2.
"Low Quality Asset" shall mean:
(1) an asset classified as "substandard," "doubtful," or "loss" or
treated as "other loans especially mentioned" in the most
recent report of examination or inspection of an affiliate
prepared by either a Federal or State supervisory agency;
(2) an asset in a nonaccrual status;
(3) an asset on which principal or interest payments are more than
thirty days past due; or
(4) an asset whose terms have been renegotiated or compromised
within twelve months prior to the Closing Date due to the
deteriorating financial condition of the obligor.
"Merchant" shall mean a business entity organized under or qualified to
do business under the laws of one of the states of the United States or the
District of Columbia which sells, produces, distributes, installs, services,
provides or manufactures retail goods and/or services.
"Merchant Adjustment Payment" shall have the meaning specified in
Section 3.2.
"Merchant Agreement" shall mean one or more agreements between the
Seller and a Merchant pursuant to which the Seller agrees to extend credit
accounts to customers of the Merchant or customers of dealers of such Merchants'
goods and services and the Merchant agrees to allow purchases of its goods and
services under such accounts.
"Merchant Termination Payments" shall mean any payments made by a
Merchant under the terms of a Merchant Agreement for the purpose of purchasing
any Receivables existing in the accounts created under that Merchant Agreement.
"New Principal Receivables" shall have the meaning set forth in Section
3.1.
3
"Notes" shall mean any of the notes issued under the terms of the
Indenture and any supplement thereto.
"Obligor" shall mean, with respect to each Account, each person that
would be treated as an "Obligor" in accordance with the definition for such term
in the Transfer and Servicing Agreement.
"Pooling and Servicing Agreement" shall mean the Pooling and Servicing
Agreement, dated as of September 29, 2000, among the Purchaser, as Transferor
and Servicer, and the Indenture Trustee, and all amendments and supplements
thereto.
"Principal Receivables" shall mean all Receivables in the Accounts that
would be treated as "Principal Receivables" in accordance with the definition
for such term in the Transfer and Servicing Agreement.
"Purchase Price" shall have the meaning set forth in Section 3.01.
"Purchased Assets" shall have the meaning set forth in Section 2.01.
"Purchaser" shall mean Conseco Bank, Inc., a Utah industrial loan
corporation, and its permitted successors and assigns.
"Receivables" shall mean all amounts payable by Obligors on any Account
from time to time, including amounts payable for Principal Receivables and
Finance Charge Receivables; provided that with respect to assets transferred
under this Agreement prior to May __, 2001, "Receivables" shall refer to
Receivables as defined in the Pooling and Servicing Agreement.
"Removed Account" shall mean an Account hereunder that is a "Removed
Account" (as such term is defined in the Transfer and Servicing Agreement) that
is designated for removal pursuant to Section 2.10 of the Transfer and Servicing
Agreement.
"Repurchase Price" shall have the meaning set forth in Section 7.1(b).
"Requirements of Law" shall mean any law, treaty, rule or regulation,
or determination of an arbitrator or Governmental Authority, whether federal,
state or local (including usury laws, the Federal Truth in Lending Act and
Regulation B and Regulation Z of the Board of Governors of the Federal Reserve
System), and, when used with respect to any Person, the trust agreement,
articles of incorporation, certificate of incorporation and by-laws or other
organizational or governing documents of such Person.
"Seller" shall mean Green Tree Retail Services Bank, Inc., a South
Dakota banking corporation.
"Supplemental Conveyance" shall have the meaning set forth in Section
2.4.
"Transfer and Servicing Agreement" shall mean the Transfer and
Servicing Agreement dated as of May 1, 2001 among the Purchaser, as transferor
and servicer, Conseco Finance Credit Card Funding Corp., as transferor, and the
Trust, as such agreement shall be amended and supplemented from time to time.
"Trust" shall mean the Conseco Private Label Credit Card Master Note
Trust, a Delaware statutory business trust.
4
"Trust Agreement" means the Trust Agreement dated as of May __, 2001,
among the Purchaser, Conseco Finance Credit Card Funding Corp. and Wilmington
Trust Company under which the Trust is created.
Section 1.2 Other Definitional Provisions
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate, other document, or Conveyance
Paper made or delivered pursuant hereto unless otherwise defined
therein.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement or any Conveyance Paper
shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; and Section, Subsection, Schedule and
Exhibit references contained in this Agreement are references to
Sections, Subsections, Schedules and Exhibits in or to this Agreement
unless otherwise specified.
(c) All determinations of the principal or finance charge
balance of Receivables, and of any collections thereof, shall be made
in accordance with the Pooling and Servicing Agreement and all
applicable Supplements thereto.
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.1 Purchase and Assignment of Rights
(a) By execution of this Agreement, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser
(collectively, the "Conveyance"), without recourse except as provided
herein, all its right, title and interest in, to and under (i) the
Receivables existing at the close of business on the Initial Cut-Off
Date, in the case of Receivables arising in the Initial Accounts, and
on each Addition Cut-Off Date, in the case of Receivables arising in
the Additional Accounts, and in each case thereafter created from time
to time in such Accounts until the termination of this Agreement
pursuant to Article VIII hereof and all monies due and or to become due
and all amounts received with respect thereto and all proceeds
(including, without limitation, "proceeds" as defined in the UCC)
thereof, (ii) the right to receive Recoveries with respect to such
Receivables, (iii) the security interest granted pursuant to Section
3.2 and (iv) all of the Seller's right, title and interest in and to
any Merchant Termination Payments which relate to any Receivables sold
by the Seller to the Purchaser under this Agreement; and (v) without
limiting the generality of the foregoing, all of the Seller's rights to
receive payments collected by any Merchant on account of In-Store
Payments and all proceeds of such rights (the "Purchased Assets");
provided, however, that the Receivables conveyed to the Purchaser shall
not include any Low Quality Assets, and such Low Quality Assets shall
not be deemed to be "Eligible Receivables" under this Agreement. On the
Closing Date, the Seller shall deliver the Initial Account Schedule to
the Purchaser.
(b) In connection with such Conveyance, the Seller agrees (i)
to record and file, at its own expense, any financing statements (and
continuation statements with respect to such financing statements when
applicable) with respect to the Receivables and other Purchased Assets
now existing and hereafter created, meeting the requirements of
applicable state law in
5
such manner and in such jurisdictions as are necessary to perfect, and
maintain perfection of, the Conveyance of such Purchased Assets from
the Seller to the Purchaser, (ii) that such financing statements shall
name the Seller, as seller, and the Purchaser, as purchaser, of the
Receivables and other Purchased Assets and (iii) to deliver a
file-stamped copy of such financing statements or other evidence of
such filings (excluding such continuation statements, which shall be
delivered as filed) to the Purchaser as soon as is practicable after
filing.
(c) In connection with such Conveyance, the Seller further
agrees that it will, at its own expense, (i) on or prior to (x) the
Closing Date, in the case of Initial Accounts, (y) the applicable
Addition Date, in the case of Additional Accounts, and (z) the
applicable Removal Date, in the case of Removed Accounts, indicate in
its computer files that, in the case of the Initial Accounts or the
Additional Accounts, Receivables created in connection with such
Accounts have been conveyed to the Purchaser in accordance with this
Agreement and that on and after the Amendment Date the Receivables
existing in the Accounts have been conveyed by the Purchaser to the
Indenture Trustee pursuant to the Transfer and Servicing Agreement for
the benefit of the holders of the Notes and the other interests in the
Trust by including (or deleting, in the case of newly originated
Receivables in Removed Accounts) in such computer files the code
identifying each such Account and (ii) deliver the Account Schedule to
the Purchaser (x) with respect to the Initial Accounts, on or before
the Closing Date, (y) with respect to Additional Accounts, on or before
the date that is five Business Days after the applicable Addition Date,
and (z) the date that is five Business Days after the applicable
Removal Date with respect to Removed Accounts. In addition, on the
Amendment Date, the Seller shall deliver to the Purchaser an Account
Schedule as of the Amendment Cut-Off Date. Each such file or list, as
supplemented from time to time to reflect Additional Accounts or
Removed Accounts, shall be marked as Schedule I to this Agreement,
shall be delivered to the Purchaser, and is hereby incorporated into
and made a part of this Agreement. The Seller further agrees not to
alter the code referenced in clause (i) of this paragraph with respect
to any Account during the term of this Agreement unless and until such
Account becomes a Removed Account.
(d) The parties hereto intend that the conveyance of the
Seller's right, title and interest in and to the Receivables and the
other Purchased Assets shall constitute an absolute sale, conveying
good title free and clear of any liens, claims, encumbrances or rights
of others from the Seller to the Purchaser. It is the intention of the
parties hereto that the arrangements with respect to the Receivables
and other Purchased Assets shall constitute a purchase and sale of such
Receivables and not a loan. In the event, however, that it were to be
determined that the transactions evidenced hereby constitute a loan and
not a purchase and sale, it is the intention of the parties hereto that
this Agreement shall constitute a security agreement under applicable
law, and that the Seller shall be deemed to have granted and does
hereby grant to the Purchaser a first priority perfected security
interest, in all of the Seller's right, title and interest, whether now
owned or hereafter acquired, in, to and under the Receivables and other
Purchased Assets to secure the rights of the Purchaser hereunder and
the obligations of the Seller hereunder.
(e) In addition to the Conveyance of Purchased Assets, the
Seller does hereby assign to the Purchaser all of the Seller's rights
to enforce the terms of the Merchant Agreements, including the
collection of amounts due thereunder, in the event of the termination
of any such agreement and, in particular, to enforce any obligation of
the Merchant to make payment for receivables purchased by or on behalf
of the Merchant to the extent such receivables
6
have been sold by the Seller to the Purchaser under the terms of this
Agreement and the Seller recognizes and agrees that the Purchaser will
assign such rights to enforce the terms of the Merchant Agreements to
the Indenture Trustee as further security for the Notes and other
interests issued under the Indenture.
Section 2.2 Addition of Supplemental Accounts
(a) If, from time to time, the Purchaser becomes obligated to
designate Additional Accounts (as such term is defined in the Transfer
and Servicing Agreement) pursuant to subsection 2.09(a) of the Transfer
and Servicing Agreement, then the Purchaser may, at its option, give
the Seller written notice thereof on or before the eighth Business Day
(the "Addition Notice Date") prior to the Addition Date therefor, and
upon receipt of such notice the Seller shall on or before the Addition
Date, designate sufficient Eligible Accounts to be included as
Additional Accounts so that after the inclusion thereof the Purchaser
will be in compliance with the requirements of said subsection 2.09(a).
Additionally, from time to time Eligible Accounts may be designated to
be included as Additional Accounts, upon the mutual agreement of the
Purchaser and the Seller. In either event, the Seller shall have sole
responsibility for selecting the Additional Accounts and shall
determine and notify the Purchaser of the Addition Cut-Off Date with
respect to such Additional Accounts.
(b) On the Addition Date with respect to any designation of
Additional Accounts, the Purchaser shall purchase the Seller's right,
title and interest in, to and under the Receivables in Additional
Accounts (as of the Addition Cut-Off Date) (and such Additional
Accounts shall be deemed to be Accounts for purposes of this
Agreement), subject to the satisfaction of the following conditions:
(i) all Additional Accounts shall be Eligible
Accounts;
(ii) the Seller shall have delivered to the Purchaser
copies of UCC-1 financing statements covering such Additional
Accounts, if necessary to perfect the Purchaser's ownership of
the Receivables arising therein; and
(iii) as of each of the Addition Cut-Off Date and the
Addition Date, no Insolvency Event with respect to the Seller
shall have occurred nor shall the transfer to the Purchaser of
the Receivables arising in the Additional Accounts have been
made in contemplation of the occurrence thereof.
Section 2.3 Representations and Warranties. The Seller hereby
represents and warrants to the Purchaser as of the Amendment Date that the
Account Schedule delivered on that date is true and complete in all material
respects as of the Amendment Date Cut-Off Date and, in the case of Additional
Accounts, the list delivered pursuant to Section 2.4 below is, as of the
applicable Addition Cut-Off Date, true and complete in all material respects.
Section 2.4 Delivery of Documents. In the case of the designation of
Additional Accounts, the Seller shall deliver to the Purchaser (i) the Account
Schedule to be delivered pursuant to Section 2.1 with respect to such Additional
Accounts on the date such file or list is required to be delivered pursuant to
Section 2.1 (the "Document Delivery Date") and (ii) a duly
7
executed, written assignment (including an acceptance by the Purchaser),
substantially in the form of Exhibit A (the "Supplemental Conveyance"), on the
Addition Date.
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1 Purchase Price
(a) The "Purchase Price" for the Receivables in the Initial
Accounts as of the Initial Cut-Off Date conveyed to the Purchaser under
this Agreement on the Closing Date shall be payable on the Closing Date
and shall be an amount equal to 100% of the aggregate balance of
Principal Receivables in those Accounts as of the Initial Cut-Off Date,
adjusted to reflect such factors as the Seller and the Purchaser
mutually agree will result in a Purchase Price determined to be the
fair market value of such Receivables. This computation of initial
purchase price should assume no reinvestment in new Receivables. The
Purchase Price for the Receivables (including Receivables in Additional
Accounts) to be conveyed to the Purchaser under this Agreement which
come into existence after the Closing Date, shall be payable within 20
days following the Monthly Period in which such Receivables are
conveyed by the Seller to the Purchaser in an amount equal to 100% of
the aggregate balance of the Principal Receivables so conveyed (the
"New Principal Receivables"), adjusted to reflect such factors as the
Seller and the Purchaser mutually agree will result in a Purchase Price
determined to be the fair market value of such New Principal
Receivables.
(b) The Purchase Price to be paid by the Purchaser on the
Closing Date and on each Payment Date following a Monthly Period during
which New Principal Receivables are conveyed to the Purchaser shall be
paid in cash.
Section 3.2 Adjustments to Purchase Price. The Purchase Price shall be
adjusted on each Payment Date (a "Credit Adjustment") with respect to any
Receivable previously conveyed to the Purchaser by the Seller which has since
been reversed by the Seller or the Servicer because of a rebate, refund,
unauthorized charge or billing error to an Obligor because such Receivable was
created in respect of merchandise which was refused or returned or due to the
occurrence of any other event referred to in Section 3.09 of the Transfer and
Servicing Agreement. The amount of such adjustment shall equal (x) the reduction
in the principal balance of such Receivable resulting from the occurrence of
such event multiplied by (y) the quotient (expressed as a percentage) of (i) the
Purchase Price for Principal Receivables payable on such Payment Date computed
in accordance with Section 3.1 divided by (ii) the Principal Receivables paid
for on such date pursuant to such Section. In the event that an adjustment
pursuant to this Section 3.2 causes the Purchase Price to be a negative number,
the Seller agrees that, not later than 1:00 P.M. New York City time on such
Payment Date, the Seller shall pay to the Purchaser an amount equal to the
amount by which the Purchase Price minus the Credit Adjustment would be reduced
below zero.
To secure its obligations to make payments required by this Section
3.2, the Seller hereby grants to the Purchaser a security interest in (i) its
rights to receive payments from any Merchant under any Merchant Agreement on
account of rebates, refunds, unauthorized charges, refused or returned
merchandise or any other event or circumstance that causes the Servicer to
8
adjust downward the amount of any Receivable without receiving Collections
therefor or charging off such amount as uncollectible ("Merchant Adjustment
Payments"), (ii) any collateral security granted to, or guaranty for the benefit
of, the Seller with respect to Merchant Adjustment Payments, (iii) all amounts
received from any Merchant or guarantor on account of Merchant Adjustment
Payments and (iv) all proceeds of such rights and such amounts. The Seller may
permit or require Merchant Adjustment Payments to be netted against amounts owed
by the Seller to a Merchant.
ARTICLE IV
SERVICING OF ACCOUNTS
Section 4.1 Servicing. Following the sale of the Receivables hereunder,
Seller shall at all times remain the owner of the Accounts. Purchaser shall be
the servicer of the Accounts but shall be entitled to enter into subservicing
arrangements with the Seller or an affiliate of Purchaser with respect to
servicing of the Accounts. Seller may, in turn, contract with third parties,
including its parent and affiliated corporations, to perform such subservicing
functions, and Purchaser acknowledges and agrees to such contracts.
Section 4.2 Servicing and Marketing Fee. Purchaser shall pay to Seller
a servicing fee for acting as subservicer with respect to the Accounts
hereunder. Such servicing fee shall be equal to 2% per annum of the total
outstanding Receivables purchased hereunder as measured on the last day of each
month, divided by 12, payable on a monthly basis within 20 days following the
last day of the month. Purchaser shall also pay to Seller a marketing fee for
marketing the Accounts hereunder. Such marketing fee shall be equal to 2% per
annum of the total outstanding Receivables purchased hereunder as measured on
the last day of each month, divided by 12, payable on a monthly basis within 20
days following the last day of the month.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of the Seller Relating to
the Seller. The Seller hereby represents and warrants to, and agrees with, the
Purchaser as of the date of this Agreement the Closing Date, the Amendment Date
and, with respect to Additional Accounts, as of the related Addition Date, that:
(a) Organization and Good Standing. The Seller is a banking
corporation duly organized and validly existing in good standing under
the laws of the State of South Dakota and has, in all material
respects, full power and authority to own its properties and conduct
its business as such properties are presently owned and such business
is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) Due Qualification. The Seller is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt
from such requirements) and has obtained all necessary licenses and
approvals, in each jurisdiction in which failure to so qualify or to
obtain such licenses and approvals would (i) render any Credit Card
Agreement relating to an Account, any Receivable or any Merchant
Agreement unenforceable by the Seller, the Purchaser or the Trust and
(ii) have a material adverse effect on the holders of the Notes.
9
(c) Due Authorization. The execution, delivery and performance
of this Agreement and any other document or instrument delivered
pursuant hereto, including any Supplemental Conveyance (such other
documents or instruments, collectively, the "Conveyance Papers"), and
the consummation of the transactions provided for in this Agreement and
the Conveyance Papers have been (i) duly authorized by the Seller by
all necessary corporate action on the part of the Seller and (ii)
approved by the board of directors of the Seller and such approval is
reflected in the minutes of such board.
(d) No Conflict. The execution and delivery of this Agreement
and the Conveyance Papers by the Seller, the performance of the
transactions contemplated by this Agreement and the Conveyance Papers,
and the fulfillment of the terms of this Agreement and the Conveyance
Papers applicable to the Seller will not conflict with, violate or
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which the Seller is a party or by which
it or any of its properties are bound.
(e) No Violation. The execution, delivery and performance of
this Agreement and the Conveyance Papers by the Seller and the
fulfillment of the terms contemplated herein and therein applicable to
the Seller will not conflict with or violate any Requirements of Law
applicable to the Seller.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Seller, threatened against the
Seller, before any Governmental Authority (i) asserting the invalidity
of this Agreement or the Conveyance Papers, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement
or the Conveyance Papers, (iii) seeking any determination or ruling
that, in the reasonable judgment of the Seller, would materially and
adversely affect the performance by the Seller of its obligations under
this Agreement or the Conveyance Papers, (iv) seeking any determination
or ruling that would materially and adversely affect the validity or
enforceability of this Agreement or the Conveyance Papers or (v)
seeking to affect adversely the income tax attributes of the Trust
under the United States Federal, Minnesota or South Dakota income tax
systems.
(g) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Seller in
connection with the execution and delivery by the Seller of this
Agreement and the Conveyance Papers and the performance of the
transactions contemplated by this Agreement or the Conveyance Papers by
the Seller have been duly obtained, effected or given and are in full
force and effect.
(h) Solvency. The Seller is not insolvent and no Insolvency
Event with respect to the Seller has occurred and the transfer of the
Receivables and other Purchased Assets by the Seller to the Purchaser
as contemplated by this Agreement has not been made in contemplation of
such insolvency or Insolvency Event or with the intent to hinder, delay
or defraud the Seller or the creditors of the Seller. This Agreement
represents a bona fide and arm's length transaction undertaken in the
ordinary course of business. The Indenture Trustee is not an insider or
an Affiliate of the Seller.
10
The representations and warranties set forth in this Section 5.1 shall
survive the transfer and assignment of the Receivables to the Purchaser. Upon
discovery by the Seller or the Purchaser of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
written notice to the other party and the Indenture Trustee within three
Business Days following such discovery.
Section 5.2 Representations and Warranties of the Seller Relating to
the Agreement and the Receivables.
(a) Representations and Warranties. The Seller hereby
represents and warrants to the Purchaser as of the date of this
Agreement, the Closing Date, the Amendment Date and, with respect to
Additional Accounts, as of the related Addition Date that:
(i) this Agreement and, in the case of Additional
Accounts, the related Supplemental Conveyance, each
constitutes a legal, valid and binding obligation of the
Seller enforceable against the Seller in accordance with its
terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally
from time to time in effect or general principles of equity;
(ii) as of the Initial Cut-Off Date, as of the
Amendment Date Cut-Off Date and as of the related Addition
Cut-Off Date with respect to Additional Accounts, Schedule I
to this Agreement (composed of the Account Schedules), as
supplemented to such date, is an accurate and complete listing
in all material respects of all the Accounts as of the Initial
Cut-Off Date, as of the Amendment Date Cut-Off Date or as of
such Addition Cut-Off Date, as the case may be, and the
information contained therein with respect to the identity of
such Accounts and the Receivables existing thereunder is true
and correct in all material respects as of the Initial Cut-Off
Date, as of the Amendment Date Cut-Off Date or as of such
applicable Addition Cut-Off Date, as the case may be, and as
of the Initial Cut-Off Date, the aggregate amount of
Receivables in all the Initial Accounts was $241,546,516.57,
of which $241,546,516.57 were Principal Receivables;
(iii) each Receivable has been conveyed to the
Purchaser free and clear of any Lien;
(iv) all authorizations, consents, orders or
approvals of or registrations or declarations with any
Governmental Authority required to be obtained, effected or
given by the Seller in connection with the conveyance of
Receivables to the Purchaser have been duly obtained, effected
or given and are in full force and effect;
(v) this Agreement and, in the case of Additional
Accounts, any related Supplemental Conveyance constitute a
valid sale, transfer and assignment to the Purchaser of all
right, title and interest of the Seller in the Receivables and
the proceeds thereof and the Recoveries payable pursuant to
this Agreement; upon the filing of the financing statements
and, in the case of Receivables hereafter created and the
proceeds thereof, upon the creation thereof, the Purchaser
shall have a first priority perfected ownership interest in
such property and proceeds;
11
(vi) on the Amendment Date Cut-Off Date, each Account
is an Eligible Account and, in the case of Additional
Accounts, on the Addition Cut-Off Date, each related
Additional Account is an Eligible Account;
(vii) on the Amendment Date Cut-Off Date, each
Receivable then existing and conveyed to the Purchaser is an
Eligible Receivable, and in the case of Additional Accounts
designated after the Amendment Date, on the applicable
Addition Cut-Off Date, each Receivable contained in such
Account and conveyed to the Purchaser is an Eligible
Receivable;
(viii) as of the date of the creation of any new
Receivable, such Receivable is an Eligible Receivable; and
(ix) no selection procedures believed by the Seller
to be materially adverse to the interests of the Purchaser or
the holders of the Notes have been used in selecting such
Accounts.
(b) Notice of Breach. The representations and warranties set
forth in this Section 5.2 shall survive the transfer and assignment of
the Receivables to the Purchaser. Upon discovery by either the Seller
or the Purchaser of a breach of any of the representations and
warranties set forth in this Section 5.2, the party discovering such
breach shall give written notice to the other party and the Trustee
within three Business Days following such discovery; provided that the
failure to give notice within three Business Days does not preclude
subsequent notice. The Seller hereby acknowledges that the Purchaser
intends to rely on the representations hereunder in connection with
representations made by the Purchaser to secured parties, assignees or
subsequent transferees including but not limited to transfers made by
the Purchaser to the Trust pursuant to the Transfer and Securities
Agreement and that the Indenture Trustee may enforce such
representations directly against the Seller.
Section 5.3 Representations and Warranties of the Purchaser. As of the
Closing Date, the Purchaser hereby represents and warrants to, and agrees with,
the Seller that:
(a) Organization and Good Standing. The Purchaser is an
industrial loan corporation duly organized and validly existing under
the laws of the State of Utah and has, in all material respects, full
power and authority to own its properties and conduct its business as
such properties are presently owned and such business is presently
conducted and to execute, deliver and perform its obligations under
this Agreement.
(b) Due Authorization. The execution and delivery of this
Agreement and the Conveyance Papers and the consummation of the
transactions provided for in this Agreement and the Conveyance Papers
have been duly authorized by the Purchaser by all necessary corporate
action on the part of the Purchaser.
(c) No Conflict. The execution and delivery of this Agreement
and the Conveyance Papers by the Purchaser, the performance of the
transactions contemplated by this Agreement and the Conveyance Papers,
and the fulfillment of the terms of this Agreement and the Conveyance
Papers applicable to the Purchaser, will not conflict with, result in
any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time
12
or both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust or other instrument to which the Purchaser is a
party or by which it or any of its properties are bound.
(d) No Violation. The execution, delivery and performance of
this Agreement and the Conveyance Papers by the Purchaser and the
fulfillment of the terms contemplated herein and therein applicable to
the Purchaser will not conflict with or violate any Requirements of Law
applicable to the Purchaser.
(e) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Purchaser, threatened against
the Purchaser, before any court, regulatory body, administrative
agency, or other tribunal or governmental instrumentality (i) asserting
the invalidity of this Agreement or the Conveyance Papers, (ii) seeking
to prevent the consummation of any of the transactions contemplated by
this Agreement or the Conveyance Papers, (iii) seeking any
determination or ruling that, in the reasonable judgment of the
Purchaser, would materially and adversely affect the performance by the
Purchaser of its obligations under this Agreement or the Conveyance
Papers or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Agreement or the Conveyance Papers.
(f) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Purchaser
in connection with the execution and delivery by the Purchaser of this
Agreement and the Conveyance Papers and the performance of the
transactions contemplated by this Agreement and the Conveyance Papers
have been duly obtained, effected or given and are in full force and
effect.
The representations and warranties set forth in this Section 5.3 shall
survive the Conveyance of the Receivables to the Purchaser. Upon discovery by
the Purchaser or the Seller of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the other party.
ARTICLE VI
COVENANTS
Section 6.1 Covenants of the Seller. The Seller hereby covenants and
agrees with and for the benefit of the Purchaser as follows:
(a) Receivables Not To Be Evidenced by Promissory Notes.
Except in connection with its enforcement or collection of an Account,
the Seller will take no action to cause any Receivable to be evidenced
by any instrument (as defined in the UCC) and if any Receivable is so
evidenced as a result of any action by the Seller it shall be deemed to
be an Ineligible Receivable in accordance with Section 7.1(a) and shall
be reassigned to the Seller in accordance with Section 7.1(b).
(b) Security Interests. Except for the conveyances hereunder,
the Seller will not sell, pledge, assign or transfer to any other
Person, or take any other action inconsistent with the Purchaser's
ownership of the Receivables and other Purchased Assets or grant,
create, incur,
13
assume or suffer to exist any Lien on, any Receivable or other
Purchased Assets, whether now existing or hereafter created, or any
interest therein, and the Seller shall not claim any ownership interest
in the Receivables and other Purchased Assets and shall defend the
right, title and interest of the Purchaser in, to and under the
Receivables and other Purchased Assets, whether now existing or
hereafter created, against all claims of third parties claiming through
or under the Seller.
(c) Account Allocations. In the event that the Seller is
unable for any reason to transfer Receivables to the Purchaser in
accordance with the provisions of this Agreement (including, without
limitation, by reason of the application of the provisions of Section
8.2 or any order of any Governmental Authority), then, in any such
event, the Seller agrees (except as prohibited by any such order) to
allocate and pay to the Purchaser, after the date of such inability,
all amounts in the manner by which the Purchaser will allocate and pay
to the Trust after such inability by the Purchaser pursuant to Section
2.11 of the Pooling and Servicing Agreement.
(d) Delivery of Collections. In the event that the Seller
receives Collections, or Merchant Termination Payments which relate to
Receivables sold under this Agreement, the Seller agrees to pay to the
Purchaser (or to the Servicer if the Purchaser so directs) all such
Collections and Merchant Termination Payments as soon as practicable
after receipt thereof.
(e) Notice of Liens. The Seller shall notify the Purchaser
promptly after becoming aware of any Lien on any Receivable other than
the conveyances hereunder and under the Transfer and Servicing
Agreement and the Indenture.
(f) Documentation of Transfer. The Seller shall undertake to
file the documents which would be necessary to perfect and maintain the
transfer of the Purchased Assets to the Purchaser. This Agreement and
any amendments hereto will be maintained, continuously, as an official
record of the Seller.
(g) Sale. The Seller agrees to treat the Conveyance, for all
purposes (including all relevant tax and financial accounting purposes)
as a sale on all federal and state tax returns, financial statements
and other applicable documents.
Section 6.2 Covenants of the Seller with Respect to Portfolio Yield,
Credit Agreements and Merchant Agreements. The Seller hereby agrees, for the
benefit of the Purchaser, that:
(a) Periodic Rate Finance Charges. Except (x) as otherwise
required by any Requirements of Law or (y) as is deemed by the Seller
to be necessary in order for it to maintain its credit card business or
a program operated by such credit card business on a competitive basis
based on a good faith assessment by it of the nature of the competition
with respect to the credit card business or such program, it shall not
at any time take any action which would have the effect of reducing the
Series Portfolio Yield to a level that could be reasonably expected to
result in an Adverse Effect with respect to any Series based on the
insufficiency of the Series Portfolio Yield or any similar test.
14
(b) Credit Card Agreements and Guidelines. Subject to
compliance with all Requirements of Law and paragraph (a) above, the
Seller may change the terms and provisions of the applicable Credit
Card Agreements or the applicable Credit Card Guidelines in any respect
(including the calculation of the amount or the timing of charge-offs
and finance charges to be assessed thereon). Notwithstanding the above,
unless required by any Requirements of Law or as permitted by paragraph
(a) above, the Seller will not take any action unless (i) at the time
of such action the Seller reasonably believes that such action will not
cause an Amortization Event, Reinvestment Event or Event of Default to
occur, and (ii) such change is made applicable to the comparable
segment of the credit card accounts owned by the Seller which have
characteristics the same as, or substantially similar to, the Accounts
that are the subject of such change, except as otherwise restricted by
an endorsement, sponsorship, or other agreement between the Seller and
an unrelated third party or by the terms of the Credit Card Agreements.
(i) Merchant Agreements. The Seller will maintain the
Merchant Agreements and comply with those terms of the
Merchant Agreements which are applicable to the Seller and
will not take any action to terminate a Merchant's Agreement
or cause a Merchant to terminate its Merchant's Agreement or
fail to extend or renew its Merchant's Agreement, unless, at
the time of such action, the Seller reasonably believes that
such action will not have a material adverse effect on the
Purchaser or the holders of the Notes.
(ii) Provide Information. The Purchaser covenants
that the Purchaser will provide the Seller with such
information as the Seller may reasonably request to enable the
Seller to determine compliance with the covenants contained in
Section 6.2(a) and (b) above.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions to the Purchaser's Obligations Regarding Initial
Receivables. The obligations of the Purchaser to purchase the Receivables in the
Initial Accounts on the Closing Date shall be subject to the satisfaction of the
following conditions:
(a) All representations and warranties of the Seller contained
in this Agreement shall be true and correct on the Closing Date with
the same effect as though such representations and warranties had been
made on such date;
(b) All information concerning the Initial Accounts provided
to the Purchaser shall be true and correct in all material respects as
of the Initial Cut-Off Date;
(c) the Seller shall have (i) delivered to the Purchaser an
Account Schedule as of the Initial Cut-Off Date and (ii) substantially
performed all other obligations required to be performed by the
provisions of this Agreement;
(d) the Seller shall have recorded and filed, at its expense,
any financing statement with respect to the Receivables (other than
Receivables in Additional Accounts) now existing and hereafter created
for the transfer of accounts and general intangibles (each as defined
in Section 9-106 of the UCC) meeting the requirements of applicable
state law in such
15
manner and in such jurisdiction as would be necessary to perfect the
sale of and security interest in the Receivables and other Purchased
Assets from the Seller to the Purchaser, and shall deliver a
file-stamped copy of such financing statements or other evidence of
such filings to the Purchaser;
(e) On or before the Closing Date, the Purchaser and the
Trustee shall have entered into the Pooling and Servicing Agreement and
the closing under the Pooling and Servicing Agreement shall take place
simultaneously with the initial closing hereunder; and
(f) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall
be satisfactory in form and substance to the Purchaser, and the
Purchaser shall have received from the Seller copies of all documents
(including, without limitation, records of corporate proceedings)
relevant to the transactions herein contemplated as the Purchaser may
reasonably have requested.
Section 7.2 Conditions Precedent to the Seller's Obligations. The
obligations of the Seller to sell Receivables in the Initial Accounts on the
Closing Date shall be subject to the satisfaction of the following conditions:
(a) All representations and warranties of the Purchaser
contained in this Agreement shall be true and correct with the same
effect as though such representations and warranties had been made on
such date;
(b) Payment or provision for payment of the Purchase Price in
accordance with the provision of Section 3.1 hereof shall have been
made; and
(c) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall
be satisfactory in form and substance to the Seller, and the Seller
shall have received from the Purchaser copies of all documents
(including, without limitation, records of corporate proceedings)
relevant to the transactions herein contemplated as the Seller may
reasonably have requested.
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.1 Term. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue until termination of the Trust
as provided in Article VIII of the Trust Agreement and consent of each of the
parties hereto.
Section 8.2 Purchase Termination. If the Seller shall fail to consent
or fail to object to the appointment of a bankruptcy trustee or conservator,
receiver, liquidator or similar official in any bankruptcy proceeding or other
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Seller or of or relating to all or
substantially all of the Seller's property, or the commencement of an action
seeking a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a bankruptcy trustee or
conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up, insolvency, bankruptcy, reorganization, conservatorship,
receivership or liquidation of the
16
Seller's affairs, or notwithstanding an objection by the Seller any such action
shall have remained undischarged or unstayed for a period of 60 days or upon
entry of any order or decree providing for such relief; or the Seller shall
admit in writing its inability to pay its debts generally as they become due,
file, or consent or fail to object (or object without dismissal of any such
filing within 30 days of such filing) to the filing of, a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization,
receivership or conservatorship or similar statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its obligations (any
such act or occurrence with respect to the Seller being an "Insolvency Event"),
the Seller shall on the day any such Insolvency Event occurs (the "Appointment
Date"), immediately cease to transfer Principal Receivables to the Purchaser.
Notwithstanding any cessation of the transfer to the Purchaser of additional
Principal Receivables, Principal Receivables transferred to the Purchaser prior
to the occurrence of such Insolvency Event, Collections in respect of such
Principal Receivables and Finance Charge Receivables (whenever created) accrued
in respect of such Principal Receivables shall continue to be assets of the
Purchaser.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Amendment. This Agreement and any Conveyance Papers and the
rights and obligations of the parties hereunder and thereunder may not be
changed orally, but only by an instrument in writing signed by the Purchaser and
the Seller in accordance with this Section 9.1. This Agreement and any
Conveyance Papers may be amended from time to time by the Purchaser and the
Seller (i) to cure any ambiguity, (ii) to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein or in any such
other Conveyance Papers, (iii) to add any other provisions with respect to
matters or questions arising under this Agreement or any Conveyance Papers which
shall not be inconsistent with the provisions of this Agreement or any
Conveyance Papers, (iv) to change or modify the Purchase Price and (v) to
change, modify, delete or add any other obligation of the Seller or the
Purchaser; provided, however, that no amendment pursuant to clause (iv) or (v)
of this Section 9.1 shall be effective unless the Seller and the Purchaser have
been notified in writing that the Rating Agency Condition has been satisfied;
provided, further, that the Purchaser shall have delivered to the Seller and to
the Indenture Trustee an Officer's Certificate, dated the date of any such
action, stating that the Purchaser reasonably believes that such action will not
have an Adverse Effect, unless the Indenture Trustee shall consent thereto. Any
reconveyance executed in accordance with the provisions hereof shall not be
considered to be an amendment to this Agreement. A copy of any amendment to this
Agreement shall be sent to each Rating Agency.
Section 9.2 Governing Law. THIS AGREEMENT AND THE CONVEYANCE PAPERS
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 9.3 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by
17
registered mail, return receipt requested, to (a) in the case of the Seller,
Green Tree Retail Services Bank Inc., 0000 Xxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxx
Xxxxxx 00000, Attention: Chief Financial Officer (facsimile no. (000) 000-0000),
(b) in the case of the Purchaser, Conseco Bank, Inc., Cottonwood Corporate
Center, 0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000,
Attention: President (facsimile no. (000) 000-0000), (c) in the case of the
Indenture Trustee, U.S. Bank Trust National Association, First Trust Center, 000
Xxxx 0xx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Structured Finance
(facsimile no. (000) 000-0000); or, as to each party, at such other address as
shall be designated by such party in a written notice to each other party.
Section 9.4 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement or any Conveyance
Paper shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions, or terms shall be deemed severable from the remaining
covenants, agreements, provisions, and terms of this Agreement or any Conveyance
Paper and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of any Conveyance Paper.
Section 9.5 Assignment. Notwithstanding anything to the contrary
contained herein, other than the Purchaser's assignment of its rights, title,
and interests in, to, and under this Agreement to the Trustee for the benefit of
the holders of the Notes and other interests in the Trust as contemplated by the
Transfer and Servicing Agreement and Section 9.6 hereof, this Agreement and all
other Conveyance Papers may not be assigned by the parties hereto; provided,
however, that the Seller shall have the right to assign its rights, title and
interests in, to and under this Agreement to (i) any successor by merger
assuming this Agreement, (ii) to any affiliate owned directly or indirectly by
Conseco Finance Corp. which assumes the obligations of this Agreement or (iii)
to any entity provided that the Rating Agency Condition has been satisfied.
Section 9.6 Acknowledgement and Agreement of the Seller. By execution
below, the Seller expressly acknowledges and agrees that all of the Purchaser's
right, title, and interest in, to, and under this Agreement, including, without
limitation, all of the Purchaser's right, title, and interest in and to the
Receivables and other Purchased Assets purchased pursuant to this Agreement,
shall be assigned by the Purchaser to the Trust and by the Trust to the
Indenture Trustee for the benefit of the holders of the Notes and other
interests in the Trust, and the Seller consents to such assignment. The Seller
further agrees that notwithstanding any claim, counterclaim, right of setoff or
defense which it may have against the Purchaser, due to a breach by the
Purchaser of this Agreement or for any other reason, and notwithstanding the
bankruptcy of the Purchaser or any other event whatsoever, the Seller's sole
remedy shall be a claim against the Purchaser for money damages and, then only
to the extent of funds received by the Purchaser pursuant to the Transfer and
Servicing Agreement, and in no event shall the Seller assert any claim on or any
interest in the Receivables and other Purchased Assets or any proceeds thereof
or take any action which would reduce or delay receipt by holders of the Notes
of collections with respect to the Receivables and other Purchased Assets.
Additionally, the Seller agrees for the benefit of the Trust that any amounts
payable by the Seller to the Purchaser hereunder which are to be paid by the
Purchaser to the Trustee for the benefit of the holders of the Notes shall be
paid by the Seller, on behalf of the Purchaser, directly to the Trust.
18
Section 9.7 Further Assurances. The Purchaser and the Seller agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party or the
Trust more fully to effect the purposes of this Agreement, the Conveyance Papers
and the Transfer and Servicing Agreement, including, without limitation, the
execution of any financing statements or continuation statements or equivalent
documents relating to the Receivables and other Purchased Assets for filing
under the provisions of the UCC or other law of any applicable jurisdiction.
Section 9.8 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Purchaser or the Seller, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 9.9 Counterparts. This Agreement and all Conveyance Papers may
be executed in two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 9.10 Binding; Third-Party Beneficiaries. This Agreement and the
Conveyance Papers will inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. The Trustee shall
be considered a third-party beneficiary of this Agreement.
Section 9.11 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and the Conveyance Papers 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
Conveyance Papers. This Agreement and the Conveyance Papers may not be modified,
amended, waived or supplemented except as provided herein.
Section 9.12 Headings. The headings are for purposes of reference only
and shall not otherwise affect the meaning or interpretation of any provision
hereof.
Section 9.13 Schedules and Exhibits. The schedules and exhibits
attached hereto and referred to herein shall constitute a part of this Agreement
and are incorporated into this Agreement for all purposes.
Section 9.14 Survival of Representations and Warranties. All
representations, warranties and agreements contained in this Agreement or
contained in any Supplemental Conveyance, shall remain operative and in full
force and effect and shall survive conveyance of the Receivables by the
Purchaser to the Trust pursuant to the Transfer and Servicing Agreement.
Section 9.15 Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, the Seller shall not, prior to the date which is
one year and one day after the termination of this Agreement, acquiesce,
petition or otherwise invoke or cause the Purchaser or the Trust to invoke the
process of any Governmental Authority for the purpose of commencing or
sustaining a case against the Purchaser under any Federal or state bankruptcy,
insolvency or
19
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Purchaser or the Trust or any
substantial part of its property or ordering the winding-up or liquidation of
the affairs of the Purchaser or the Trust.
20
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Amended and Restated Receivables Purchase Agreement to be duly executed by their
respective officers as of the day and year first above written.
GREEN TREE RETAIL SERVICES BANK, INC.
as Seller
By:
----------------------------------
Name:
Title:
CONSECO BANK, INC.,
as Purchaser
By:
----------------------------------
Name:
Title:
[Signature Page to Green Tree Retail Services Bank, Inc.
Receivables Purchase Agreement]
21
EXHIBIT A
---------
FORM OF SUPPLEMENTAL CONVEYANCE
(As required by Section 2.4 of
the Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE No. dated as of ____, 20__, by and between
GREEN TREE RETAIL SERVICES BANK, INC. as Seller (the "Seller"), and CONSECO
BANK, INC. as Purchaser (the "Purchaser"), pursuant to the Receivables Purchase
Agreement referred to below.
WITNESSETH:
----------
WHEREAS, the Seller and the Purchaser are parties to a Receivables
Purchase Agreement, dated as of August 29, 2000 and amended and restated as of
May __, 2001 (hereinafter as such agreement may have been, or may from time to
time be, amended, supplemented or otherwise modified, the "Receivables Purchase
Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, the Seller
wishes to designate Additional Accounts to be included as Accounts and the
Seller wishes to convey its right, title and interest in the Receivables of such
Additional Accounts, whether now existing or hereafter created, to the Purchaser
pursuant to the Receivables Purchase Agreement (as each such term is defined in
the Receivables Purchase Agreement); and
WHEREAS, the Purchaser is willing to accept such designation and
conveyance subject to the terms and conditions hereof.
NOW, THEREFORE, the Seller and the Purchaser hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have
the meanings ascribed to them in the Receivables Purchase Agreement
unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, 20__.
"Addition Cut-Off Date" shall mean, with respect to the Additional
Accounts designated hereby, _________ __, 20__.
2. Designation of Additional Accounts. The Seller delivers
herewith a computer file or microfiche list containing a true and
complete schedule identifying all such Additional Accounts and
specifying for each such Account, as of the Addition Cut-Off Date, its
account number, the aggregate amount outstanding in such Account and
the aggregate amount of Principal Receivables in such Account. Such
computer file, microfiche list or other documentation (each an "Account
Schedule") shall be as of the
22
date of this Supplemental Conveyance incorporated into and made part of
this Supplemental Conveyance and is marked as Schedule I to this
Supplemental Conveyance.
3. Conveyance of Receivables.
(a) The Seller does hereby sell, transfer, assign,
set over and otherwise convey to the Purchaser, without
recourse except as provided in the Receivables Purchase
Agreement, all its right, title and interest in, to and under
(i) the Receivables generated by such Additional Accounts,
existing at the close of business on the Addition Cut-Off Date
and thereafter created until termination of the Receivables
Purchase Agreement, all monies due or to become due and all
amounts received with respect thereto and all "proceeds"
(including, without limitation, "proceeds" as defined in
Article 9 of the UCC) thereof, (ii) the right to receive
Recoveries with respect to such Receivables and (iii) all of
the Seller's right, title and interest in and to any Merchant
Termination Payments which relate to such Receivables.
(b) In connection with such sale, the Seller agrees
to record and file, at its own expense, one or more financing
statements (and continuation statements with respect to such
financing statements when applicable) with respect to the
Receivables now existing and hereafter created, for the
transfer of accounts and general intangibles meeting the
requirements of applicable state law in such manner and in
such jurisdictions as are necessary to perfect the sale and
assignment of and the security interest in the Receivables to
the Purchaser, and to deliver a file-stamped copy of such
financing statement or other evidence of such filing to the
Purchaser.
(c) In connection with such sale, the Seller further
agrees, at its own expense, on or prior to the date of this
Supplemental Conveyance, to indicate in the appropriate
computer files or microfiche list that all Receivables created
in connection with the Additional Accounts designated hereby
have been conveyed to the Purchaser pursuant to this
Supplemental Conveyance.
4. Acceptance by the Purchaser. The Purchaser hereby
acknowledges its acceptance of all right, title and interest to the
property, now existing and hereafter created, conveyed to the Purchaser
pursuant to Section 3(a) of this Supplemental Conveyance, and declares
that it shall maintain such right, title and interest. The Purchaser
further acknowledges that, prior to or simultaneously with the
execution and delivery of this Supplemental Conveyance, the Seller
delivered to the Purchaser the computer file or microfiche list
described in Section 2 of this Supplemental Conveyance.
5. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Purchaser as of the date of this
Supplemental Conveyance and as of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This
Supplemental Conveyance constitutes a legal, valid and binding
obligation of the Seller enforceable against the Seller in
accordance with its terms, except as such enforceability may
be limited by
23
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally
from time to time in effect or general principles of equity;
(b) Eligibility of Accounts. On the Addition Cut-Off Date,
each Additional Account designated hereby is an Eligible Account;
(c) No Liens. Each Receivable in an Additional Account
designated hereby has been conveyed to the Purchaser free and clear of
any Lien;
(d) Eligibility of Receivables. On the Addition Cut-Off Date,
each Receivable existing in an Additional Account designated hereby is
an Eligible Receivable and as of the date of creation of any Receivable
in an Additional Account designated hereby, such Receivable is an
Eligible Receivable;
(e) Selection Procedures. No selection procedure believed by
the Seller to be adverse to the interests of the Purchaser or the
holders of the Notes was utilized in selecting the Additional Accounts;
(f) Transfer of Receivables. This Supplemental Conveyance
constitutes a valid sale, transfer and assignment to the Purchaser of
all right, title and interest of the Seller in the Receivables arising
in the Additional Accounts designated hereby now existing or hereafter
created, all monies due or to become due, all amounts received with
respect thereto, the "proceeds" (including, without limitation,
"proceeds" as defined in Article 9 of the UCC) thereof and the
Recoveries and Merchant Termination Payments with respect thereto;
(g) No Conflict. The execution and delivery of this
Supplemental Conveyance, the performance of the transactions
contemplated by this Supplemental Conveyance and the fulfillment of the
terms hereof, will not conflict with, result in any breach of any of
the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust or other
instrument to which the Seller is a party or by which it or its
properties are bound;
(h) No Violation. The execution and delivery of this
Supplemental Conveyance by the Seller, the performance of the
transactions contemplated by this Supplemental Conveyance and the
fulfillment of the terms hereof applicable to the Seller will not
conflict with or violate any Requirements of Law applicable to the
Seller;
(i) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Seller, threatened against the
Seller before any Governmental Authority (i) asserting the invalidity
of this Supplemental Conveyance, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this
Supplemental Conveyance, (iii) seeking any determination or ruling
that, in the reasonable judgment of the Seller, would materially and
adversely affect the performance by the Seller of its obligations under
this Supplemental Conveyance or (iv) seeking any determination or
24
ruling that would materially and adversely affect the validity or
enforceability of this Supplemental Conveyance;
(j) All Consents. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be
obtained by the Seller in connection with the execution and delivery of
this Supplemental Conveyance by the Seller and the performance of the
transactions contemplated by this Supplemental Conveyance by the
Seller, have been obtained;
(k) Ratification of the Receivables Purchase Agreement. The
Receivables Purchase Agreement is hereby ratified, and all references
to the "Receivables Purchase Agreement," to "this Agreement" and
"herein" shall be deemed from and after the Addition Date to be a
reference to the Receivables Purchase Agreement as supplemented by this
Supplemental Conveyance. Except as expressly amended hereby, all the
representations, warranties, terms, covenants and conditions of the
Receivables Purchase Agreement shall remain unamended and shall
continue to be, and shall, remain, in full force and effect in
accordance with its terms and except as expressly provided herein shall
not constitute or be deemed to constitute a waiver of compliance with
or consent to non-compliance with any term or provision of the
Receivables Purchase Agreement and
(l) Counterparts. This Supplemental Conveyance may be executed
in any number of counterparts, all of which taken together shall
constitute one and the same instrument.
25
IN WITNESS WHEREOF, the undersigned have caused this Supplemental
Conveyance to be duly executed and delivered by their respective duly authorized
officers on the day and the year first above written.
CONSECO BANK, INC.,
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
GREEN TREE RETAIL SERVICES BANK, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
26
