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EXHIBIT 1.1
CONSECO FINANCE SECURITIZATIONS CORP., SELLER
CONSECO FINANCE CORP., SERVICER
Certificates for Home Improvement Loans Conseco
Finance Home Improvement Loan Trust 2000-
[Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class M-1, Class M-2 and Class B-1]
UNDERWRITING AGREEMENT
_____________, 2000
[UNDERWRITER]
Ladies and Gentlemen:
Conseco Finance Corp. (the "Company") is a Delaware corporation with
its principal place of business in Saint Paul, Minnesota. Conseco Finance
Securitizations Corp. (the "Seller") is a Minnesota corporation with its
principal place of business in Saint Paul, Minnesota. The Company and the
Seller, each as a Registrant, have filed a Registration Statement relating to
the issuance and sale of Certificates for Home Improvement Loans (the
"Certificates") to be issued by Conseco Finance Home Improvement Loan Trust
2000-___ (the "Trust"). The Trust will be created by the Seller pursuant to a
Pooling and Servicing Agreement, dated as of _________________, 2000 (the
"Pooling and Servicing Agreement") among the Company, as servicer, the Seller,
as seller, and [NAME OF TRUSTEE], as trustee (the "Trustee"). The Trust property
will consist of a pool of fixed-rate closed-end home improvement loans (the
"Loans"), including the right to receive payments due on the Loans after the
related Cut-off Date, together with liens on the related real estate, amounts
held for the Trust in the certificate account and amounts held in any related
pre-funding account or capitalized interest account. All of the Loans are
secured by a lien on the related real estate.
The Company and the Seller have duly authorized the issuance and sale
of $[AMOUNT] (approximate) aggregate principal amount of the Certificates to be
underwritten pursuant to this Agreement by [UNDERWRITER(s)] (the "Underwriter"
or "you"). The class designations and principal amounts of the Certificates are
set forth on Schedule I attached hereto. The Certificates are more fully
described in a Registration Statement which the Company and the Seller have
furnished to you. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
Prior to the offering of the Certificates, the Company, the Seller and
the Underwriter will enter into an agreement (the "Terms Agreement"), which
shall be substantially in the form of Exhibit A hereto, providing for the sale
of the Certificates to, and the purchase and offering thereof by, the
Underwriter. The Terms Agreement relating to the offering of the Certificates
shall specify, among other things, the principal amount or amounts of the
Certificates to be issued, the price or prices at which the
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Certificates are to be purchased by the Underwriter from the Company and the
Seller and the initial public offering price or prices or the method by which
the price or prices at which such Certificates are to be sold will be
determined. The Terms Agreement may take the form of an exchange of any standard
form of written telecommunication between you, the Company and the Seller. The
offering of the Certificates will be governed by this Agreement, as supplemented
by the Terms Agreement, and this Agreement and such Terms Agreement shall inure
to the benefit of and be binding upon the Underwriter.
The Company and the Seller, each as a Registrant in the Registration
Statement, have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 No. 333-[NUMBER] (the
"Registration Statement"), relating to the Certificates, and the offering
thereof from time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "1933 Act"), and have filed, and propose to file, such
amendments thereto as may have been required to the date hereof pursuant to the
1933 Act and the rules of the Commission thereunder (the "Regulations"). The
Company and the Seller propose to file with the Commission pursuant to Rule
424(b)(5) under the Regulations a supplement to the form of prospectus included
in such Registration Statement, dated [DATE], 2000 (the "Prospectus Supplement")
relating to the Certificates and the method of distribution thereof. Such
Registration Statement, as amended, at the time when it became effective under
the 1933 Act, and the prospectus relating to the sale of the Certificates by the
Company and the Seller constituting a part thereof, each as from time to time
amended or supplemented pursuant to the 1933 Act or otherwise, are referred to
herein as the "Registration Statement" and the "Prospectus", respectively.
SECTION 1. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriter as of the date hereof, as follows:
(a) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective, did, and does, comply in
all material respects with the requirements of the 1933 Act and the
Regulations. The Registration Statement, at the time it became
effective, did not, and as of the Closing Date (as defined below) will
not, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading. The Prospectus, as amended or
supplemented at the time the Registration Statement became effective,
did not, and as amended or supplemented as of both the date hereof and
the Closing Date (as defined below) will not, contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in, or
omissions from, the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company or the Seller in writing by the Underwriter expressly for use
in the Registration Statement or Prospectus. The
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Company acknowledges that the statements set forth in the first and
second sentences of the third paragraph under the heading
"Underwriting" in the Prospectus Supplement, constitute the only
information furnished by the Underwriter or on behalf of the
Underwriter for use in connection with the preparation of the
Registration Statement or the Prospectus. The conditions to the use by
the Company and the Seller of a registration statement on Form S-3
under the 1933 Act, as set forth in the General Instructions to Form
S-3, have been satisfied with respect to the Registration Statement, as
applicable, and the Prospectus, except that the Company makes no such
representation regarding any Computational Materials (as defined
herein) incorporated by reference therein except to the extent such
Computational Materials accurately reflect or are accurately based upon
the Company-Provided Information (as defined herein) and the
Seller-Provided Information (as defined herein). There are no contracts
or documents (not including Computational Materials) of the Company or
the Seller which are required to be filed as exhibits to the
Registration Statement pursuant to the 1933 Act or the Regulations
which have not been so filed.
(b) The Company and the Seller have been duly incorporated and
are validly existing as corporations in good standing under the laws of
the States of Delaware and Minnesota, respectively, with corporate
power and authority to own, lease and operate their properties and
conduct their business as described in the Prospectus and to enter into
and perform their obligations under this Agreement, the Pooling and
Servicing Agreement and the Terms Agreement; and the Company and the
Seller are duly qualified as foreign corporations to transact business
and are in good standing in each jurisdiction in which the ownership or
lease of their properties or the conduct of their business requires
such qualification.
(c) Neither the Company nor the Seller is in violation of its
respective certificate or articles of incorporation or by-laws or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which
either the Company or the Seller is a party or by which they or their
properties may be bound, which default might result in any material
adverse change in the financial condition, earnings, affairs or
business of the Company or the Seller or which might materially and
adversely affect the properties or assets thereof.
(d) The execution and delivery by the Company and the Seller
of this Agreement, the Terms Agreement and the Pooling and Servicing
Agreement are within the corporate power of the Company and the Seller
and have been duly authorized by all necessary corporate action on the
part of the Company and the Seller; and neither the issuance and sale
of the Certificates to the Underwriter, nor the execution and delivery
by the Company and the Seller of this Agreement and the Pooling and
Servicing Agreement, nor the consummation by the Company or the Seller
of the transactions therein contemplated, nor compliance by the Company
or the Seller with the provisions hereof or thereof, will materially
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conflict with or result in a material breach of, or constitute a
material default under, any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Company or
the Seller or the properties or the respective certificates or articles
of incorporation or by-laws of the Company or the Seller, or any of the
provisions of any indenture, mortgage, contract or other instrument to
which the Company or the Seller is a party or by which they are bound
or result in the creation or imposition of any lien, charge or
encumbrance upon any of their property pursuant to the terms of any
such indenture, mortgage, contract or other instrument.
(e) This Agreement has been, and the Terms Agreement when
executed and delivered as contemplated hereby and thereby will have
been, duly authorized, executed and delivered by the Company and the
Seller, and each constitutes, or will constitute when so executed and
delivered, a legal, valid and binding instrument enforceable against
each of the Company and the Seller in accordance with its terms,
subject (i) to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally,
(ii) as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law)
and (iii) as to enforceability with respect to rights of indemnity
thereunder, to limitations of public policy under applicable securities
laws.
(f) The Pooling and Servicing Agreement when executed and
delivered as contemplated hereby and thereby will have been duly
authorized, executed and delivered by the Company and the Seller, and
will constitute, when so executed and delivered, a legal, valid and
binding instrument enforceable against each of the Company and the
Seller in accordance with its terms, subject (i) to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally and (ii) as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(g) As of the Closing Date (as defined below), the
Certificates will have been duly and validly authorized by the Company
and the Seller, and, when executed and authenticated as specified in
the Pooling and Servicing Agreement, will be validly issued and
outstanding and will be entitled to the benefits of the Pooling and
Servicing Agreement.
(h) No filing or registration with, notice to or consent,
approval, authorization or order of any court or governmental authority
or agency is required for the consummation by the Company or the Seller
of the transactions contemplated by this Agreement, the Pooling and
Servicing Agreement or the Terms Agreement, except such as may be
required under the 1933 Act, the Regulations, or state securities or
Blue Sky laws.
(i) The Company and the Seller each possess all material
licenses, certificates, authorizations or permits issued by the
appropriate state, federal or
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foreign regulatory agencies or bodies necessary to conduct the business
now operated by each of them and as described in the Prospectus and
neither the Company nor the Seller has received any notice of
proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the conduct of the
business, operations, financial condition or income of the Company or
the Seller.
(j) As of the Closing Date (as defined below), the Loans
constituting a portion of the Trust will have been duly and validly
assigned to the Trustee in accordance with the Pooling and Servicing
Agreement; and when such assignment is effected, a duly and validly
perfected transfer of all such Loans subject to no prior lien,
mortgage, security interest, pledge, charge or other encumbrance
created by the Company or the Seller will have occurred. At the time of
the execution and delivery of each Subsequent Transfer Instrument
(each, a "Subsequent Closing Date"), the Subsequent Loans described
therein (the "Subsequent Loans") will have been duly and validly
assigned to the Trustee in accordance with the Pooling and Servicing
Agreement; and when such assignment is effected, a duly and validly
perfected transfer of all such Subsequent Loans subject to no prior
lien, mortgage, security interest, pledge, charge or other encumbrance
created by the Company or the Seller will have occurred.
(k) As of the Closing Date (as defined below), each of the
Loans will meet the eligibility criteria described in the Prospectus.
As of the related Subsequent Closing Date, each of the Subsequent Loans
will meet the eligibility criteria described in the Prospectus.
(l) Neither the Company, the Seller nor the Trust created by
the Pooling and Servicing Agreement will be subject to registration as
an "investment company" under the Investment Company Act of 1940, as
amended (the "1940 Act").
(m) The Certificates, the Pooling and Servicing Agreement and
the Terms Agreement conform in all material respects to the
descriptions thereof contained in the Prospectus.
(n) At the Closing Date (as defined below), the Certificates
shall have received the certificate rating or ratings specified in the
Terms Agreement.
(o) At the Closing Date (as defined below) and each Subsequent
Closing Date, each of the representations and warranties of the Company
and the Seller set forth in the Pooling and Servicing Agreement will be
true and correct.
(p) As of the Closing Date (as defined below), the Pooling and
Servicing Agreement will have been duly authorized, executed and
delivered by, and will constitute a legal, valid and binding obligation
of, each of the Company and the Seller, enforceable against each of the
Company
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and the Seller in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally and, as to enforceability,
to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
Any certificate signed by an officer of the Company and delivered to
the Underwriter or counsel for the Underwriter in connection with an offering of
the Certificates shall be deemed, and shall state that it is, a representation
and warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 1 are made.
The Company believes the Underwriter is justified in relying on any of
the representations, opinions and certificates made or furnished by the Company
to the Underwriter or its counsel as described above.
SECTION 2. Representations and Warranties of the Seller. The Seller
represents and warrants to the Underwriter as of the date hereof, as follows:
(a) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective, did, and does, comply in
all material respects with the requirements of the 1933 Act and the
Regulations. The Registration Statement, at the time it became
effective, did not, and as of the Closing Date (as defined below) will
not, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading. The Prospectus, as amended or
supplemented at the time the Registration Statement became effective,
did not, and as amended or supplemented as of both the date hereof and
the Closing Date (as defined below) will not, contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in, or
omissions from, the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Seller in writing by the Underwriter expressly for use in the
Registration Statement or Prospectus. The Seller acknowledges that the
statements set forth in the first and second sentences of the third
paragraph under the heading "Underwriting" in the Prospectus
Supplement, constitute the only information furnished by the
Underwriter or on behalf of the Underwriter for use in connection with
the preparation of the Registration Statement or the Prospectus. The
conditions to the use by the Seller of a registration statement on Form
S-3 under the 1933 Act, as set forth in the General Instructions to
Form S-3, have been satisfied with respect to the Registration
Statement, as applicable, and the Prospectus, except that the Seller
makes no such representation regarding any Computational Materials (as
defined herein) incorporated by reference therein.
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There are no contracts or documents (not including Computational
Materials) of the Seller which are required to be filed as exhibits to
the Registration Statement pursuant to the 1933 Act or the Regulations
which have not been so filed.
(b) The Seller has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Minnesota with corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement, the Pooling and Servicing Agreement and the Terms Agreement;
and the Seller is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which the
ownership or lease of its properties or the conduct of its business
requires such qualification.
(c) The Seller is not in violation of its articles of
incorporation or by-laws or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or its
properties may be bound, which default might result in any material
adverse change in the financial condition, earnings, affairs or
business of the Seller or which might materially and adversely affect
the properties or assets thereof.
(d) The execution and delivery by the Seller of this
Agreement, the Terms Agreement and the Pooling and Servicing Agreement
are within the corporate power of the Seller and have been duly
authorized by all necessary corporate action on the part of the Seller;
and neither the issuance and sale of the Certificates to the
Underwriter, nor the execution and delivery by the Seller of this
Agreement and the Pooling and Servicing Agreement, nor the consummation
by the Seller of the transactions therein contemplated, nor compliance
by the Seller with the provisions hereof or thereof, will materially
conflict with or result in a material breach of, or constitute a
material default under, any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Seller or
its properties or the articles of incorporation or by-laws of the
Seller, or any of the provisions of any indenture, mortgage, contract
or other instrument to which the Seller is a party or by which it is
bound or result in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument.
(e) This Agreement has been, and the Terms Agreement when
executed and delivered as contemplated hereby and thereby will have
been, duly authorized, executed and delivered by the Company and the
Seller, and each constitutes, or will constitute when so executed and
delivered, a legal, valid and binding instrument enforceable against
each of the Company and the Seller in accordance with its terms,
subject (i) to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally,
(ii) as to enforceability, to general
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principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (iii) as to enforceability with
respect to rights of indemnity thereunder, to limitations of public
policy under applicable securities laws.
(f) The Pooling and Servicing Agreement when executed and
delivered as contemplated hereby and thereby will have been duly
authorized, executed and delivered by the Seller, and will constitute,
when so executed and delivered, a legal, valid and binding instrument
enforceable against the Seller in accordance with its terms, subject
(i) to applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally and (ii) as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(g) As of the Closing Date (as defined below), the
Certificates have been duly and validly authorized by the Seller, and,
when executed and authenticated as specified in the Pooling and
Servicing Agreement, will be validly issued and outstanding and will be
entitled to the benefits of the Pooling and Servicing Agreement.
(h) No filing or registration with, notice to or consent,
approval, authorization or order of any court or governmental authority
or agency is required for the consummation by the Seller of the
transactions contemplated by this Agreement, the Pooling and Servicing
Agreement or the Terms Agreement, except such as may be required under
the 1933 Act, the Regulations, or state securities or Blue Sky laws.
(i) The Seller possesses all material licenses, certificates,
authorizations or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business
now operated by it and as described in the Prospectus and the Seller
has received no notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
conduct of the business, operations, financial condition or income of
the Seller.
(j) As of the Closing Date (as defined below), the Loans
constituting a portion of the Trust will have been duly and validly
assigned to the Trustee in accordance with the Pooling and Servicing
Agreement; and when such assignment is effected, a duly and validly
perfected transfer of all such Loans subject to no prior lien,
mortgage, security interest, pledge, charge or other encumbrance
created by the Seller will have occurred. On the Subsequent Closing
Date, the Subsequent Loans will have been duly and validly assigned to
the Trustee in accordance with the Pooling and Servicing Agreement; and
when such assignment is effected, a duly and validly perfected transfer
of all such
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Subsequent Loans subject to no prior lien, mortgage, security interest,
pledge, charge or other encumbrance created by the Seller will have
occurred.
(k) As of the Closing Date (as defined below), each of the
Loans will meet the eligibility criteria described in the Prospectus.
As of the related Subsequent Closing Date, each of the Subsequent Loans
will meet the eligibility criteria described in the Prospectus.
(l) Neither the Seller nor the Trust created by the Pooling
and Servicing Agreement will be subject to registration as an
"investment company" under the 1940 Act.
(m) The Certificates, the Pooling and Servicing Agreement and
the Terms Agreement conform in all material respects to the
descriptions thereof contained in the Prospectus.
(n) At the Closing Date (as defined below), the Certificates
shall have received the certificate rating or ratings specified in the
Terms Agreement.
(o) At the Closing Date (as defined below) and each Subsequent
Closing Date, each of the representations and warranties of the Seller
set forth in the Pooling and Servicing Agreement will be true and
correct.
(p) As of the Closing Date (as defined below), the Pooling and
Servicing Agreement will have been duly authorized, executed and
delivered by, and will constitute a legal, valid and binding obligation
of, the Seller, enforceable against the Seller in accordance with its
terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally
and, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).
Any certificate signed by an officer of the Seller and delivered to the
Underwriter or counsel for the Underwriter in connection with an offering of the
Certificates shall be deemed, and shall state that it is, a representation and
warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 2 are made.
The Seller believes the Underwriter is justified in relying on any of
the representations, opinions and certificates made or furnished by the Seller
to the Underwriter or its counsel as described above.
SECTION 3. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company and the Seller agree to sell to the Underwriter, and the Underwriter
agree to purchase from the Company and the Seller, the Certificates pursuant to
the terms set forth in the Terms Agreement.
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Payment of the purchase price for, and delivery of, the Certificates to
be purchased by the Underwriter shall be made at the office of [PLACE AND
ADDRESS OF CLOSING], Minneapolis, Minnesota 55402, or at such other place as
shall be agreed upon by you, the Company and the Seller, at such time and date
as shall be agreed upon by you, the Company and the Seller in the Terms
Agreement (such time and date being referred to as the "Closing Date"). Unless
otherwise specified in the Terms Agreement, payment shall be made to the Seller
in immediately available Federal funds wired to such bank as may be designated
by the Seller. Such Certificates shall be in such denominations and registered
in such names as the Underwriter may request in writing at least two (2)
business days prior to the Closing Date. Such Certificates, which may be in
temporary form, will be made available for examination and packaging by the
Underwriter no later than 12:00 noon on the first business day prior to the
Closing Date.
SECTION 4. Covenants of the Company and the Seller. Each of the Company
and the Seller covenants with the Underwriter as follows:
(a) The Company and the Seller will prepare the Prospectus
Supplement setting forth the principal amount of the Certificates
covered thereby, the price or prices at which the Certificates are to
be purchased by the Underwriter from the Trust, either the initial
public offering price or prices or the method by which the price or
prices by which the Certificates are to be sold will be determined, the
selling concession(s) and reallowance(s), if any, any delayed delivery
arrangements, and such other information as the Underwriter, the
Company and the Seller deem appropriate in connection with the offering
of the Certificates. The Seller will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424
under the 1933 Act and will furnish to the Underwriter as many copies
of the Prospectus and such Prospectus Supplement, each Additional
Transfer Filing (as defined herein) and each Subsequent Transfer Filing
(as defined herein) as the Underwriter shall reasonably request.
(b) If, at any time when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Certificates
by the Underwriter, any event shall occur or condition exist as a
result of which it is necessary, in the opinion of your counsel,
counsel for the Company and the Seller, or otherwise, to further amend
or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
circumstances existing at the time it is delivered to a purchaser, not
misleading or if it shall be necessary, in the opinion of any such
counsel or otherwise, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the Regulations thereunder, the Company
and the Seller will promptly prepare and file with the Commission such
amendment or supplement as may be necessary to correct such untrue
statement or omission or to make the Registration Statement comply with
such requirements, and within two (2) business days will furnish to the
Underwriter as many copies of the
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Prospectus, as so amended or supplemented, as the Underwriter shall
reasonably request. Neither the Underwriter's consent to, or such
Underwriter's delivery of, any such amendment or supplement shall
constitute a waiver of the conditions set forth in Section 5 hereof.
(c) The Company or the Seller, as applicable, will give the
Underwriter reasonable notice of its intention to file any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1933 Act or otherwise, will furnish
the Underwriter with copies of any such amendment or supplement or
other documents proposed to be filed a reasonable time in advance of
filing, and will not file any such amendment or supplement or other
documents in a form to which the Underwriter or its counsel shall
object.
(d) The Company or the Seller will notify the Underwriter
immediately, and confirm the notice in writing, (i) of the
effectiveness of any amendment to the Registration Statement, (ii) of
the mailing or the delivery to the Commission for filing of any
supplement to the Prospectus or any document other than quarterly and
annual reports to be filed pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), (iii) of the receipt of any comments
from the Commission with respect to the Registration Statement, the
Prospectus or any Prospectus Supplement, (iv) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information, and (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company and the
Seller will make every reasonable effort to prevent the issuance of any
such stop order and, if any such stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(e) The Seller will deliver to the Underwriter as many signed
and as many conformed copies of the Registration Statement and of each
amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated by reference in the
Prospectus) as the Underwriter may reasonably request.
(f) The Company and the Seller will endeavor, in cooperation
with the Underwriter, to qualify the Certificates for offering and sale
under the applicable securities laws of such states and other
jurisdictions of the United States as you may designate, and will
maintain or cause to be maintained such qualifications in effect for as
long as may be required for the distribution of the Certificates. The
Company and the Seller will file or cause the filing of such statements
and reports as may be required by the laws of each jurisdiction in
which the Certificates have been qualified as above provided.
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(g) The Seller will prepare, or cause to be prepared, and
file, or cause to be filed, a timely election to treat the Trust as one
or more real estate mortgage investment conduits (a "REMIC") for
federal income tax purposes and will file, or cause to be filed, such
tax returns and take such actions, all on a timely basis, as are
required to elect and maintain such status.
(h) Neither the Company nor the Seller will, without the prior
written consent of the Underwriter, publicly offer or sell or contract
to publicly sell home improvement loan pass-through certificates or
home improvement loan pass-through notes or similar securities
representing interests in or secured by other home improvement loan
related assets for a period of thirty (30) days from the date hereof.
(i) The Seller will file with the Commission within fifteen
days of the issuance of the Certificates a current report on Form 8-K
setting forth specific information concerning the Certificates and the
Loans to the extent that such information is not set forth in the
Prospectus. The Seller will also file with the Commission a current
report on Form 8-K setting forth all Computational Materials, ABS Term
Sheets and Collateral Term Sheets (as such terms are defined herein)
provided to the Company or the Seller by any Underwriter within the
applicable time periods allotted for such filing pursuant to the
No-Action Letters.
(j) In connection with any Computational Materials, ABS Term
Sheets or Collateral Term Sheets provided by the Underwriter pursuant
to Section 6, the Company and the Seller must receive a letter from
[ACCOUNTANT], certified public accountants, satisfactory in form and
substance to the Company and the Seller, to the effect that such
accountants have performed certain specified procedures, all of which
have been agreed to by the Company and the Seller, as a result of which
they have determined that the information included in the Computational
Materials, ABS Term Sheets or Collateral Term Sheets (if any), provided
by the Underwriter(s) to the Company or the Seller for filing on Form
8-K pursuant to Section 6 and subsection (i), is accurate except as to
such matters that are not deemed by the Company or the Seller to be
material. The foregoing letter shall be obtained at the expense of the
Company and the Seller.
(k) In the event that the Underwriter must prepare corrected
Computational Materials, ABS Term Sheets or Collateral Term Sheets
pursuant to Section 6(b)(4), the Seller shall file any corrected
Computational Materials, ABS Term Sheets or Collateral Term Sheets no
later than two business days following receipt thereof.
(l) The Seller will file with the Commission a Current Report
on Form 8-K within fifteen days of each purchase of Subsequent Loans by
the Trust (the "Subsequent Transfer Filing"). On or before the final
purchase of Subsequent Loans by the Trust and the expiration of the
Pre-Funding Period, the Company
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and the Seller must receive a letter from [ACCOUNTANT], certified
public accountants, satisfactory in form and substance to the Company,
the Seller and the Underwriter, to the effect that such accountants
have performed certain specified procedures, all of which have been
agreed to by the Company and the Seller, as a result of which they have
determined, having examined in accordance with such agreed upon
procedures, that (i) the information included in such filing is
accurate except as to such matters that are not deemed by the Company,
the Seller and the Underwriter to be material and (ii) the Subsequent
Loans conform to the related requirements described in the Prospectus.
The foregoing letter shall be at the expense of the Seller.
(m) On or prior to each Subsequent Closing Date, the Company
and the Seller shall deliver to the Underwriter, or cause the delivery
of, the opinions and officer's certificates, substantially in the form
of the items listed in Sections 5 (b), (c), (d), (e) and (f) hereof,
each dated the Subsequent Closing Date, with such conforming changes
thereto as the Underwriter may reasonably request.
SECTION 5. Conditions of the Underwriter's Obligations. The obligations
of the Underwriter to purchase the Certificates pursuant to the Terms Agreement
are subject to the accuracy of the representations and warranties on the part of
the Company and the Seller herein contained, to the accuracy of the statements
of the Company's and the Seller's officers made pursuant hereto, to the
performance by the Company and the Seller of all of their obligations hereunder
and to the following conditions:
(a) At the Closing Date (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued or
proceedings therefor initiated or threatened by the Commission, (ii)
the Certificates shall have received the rating or ratings specified in
the Terms Agreement, and (iii) there shall not have come to the
attention of the Underwriter any facts that would cause the Underwriter
to believe that the Prospectus, together with the Prospectus Supplement
at the time it was required to be delivered to a purchaser of the
Certificates, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such
time, not misleading.
(b) At the Closing Date the Underwriter shall have received:
(1) The favorable opinion, dated as of the Closing
Date, of [COUNSEL], special and general counsel for the
Company, as servicer of the Loans, and for the Seller, as
Seller of the Loans, in form and substance satisfactory to the
Underwriter, to the effect that:
(i) The Company and the Seller are each corporations
duly incorporated, validly existing and in good standing under
the laws of the States of Delaware and Minnesota,
respectively, each with corporate
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power to execute, deliver and perform its obligations under
the Pooling and Servicing Agreement, this Agreement and the
Certificates.
(ii) The Pooling and Servicing Agreement, this
Agreement and the Registration Statement have each been duly
authorized by all requisite corporate action and duly executed
and delivered by the Company and the Seller, and constitute
the valid and binding obligations of the Company and the
Seller enforceable in accordance with their terms. The
Certificates have been duly authorized by all requisite
corporate action and, when duly and validly executed by the
Trustee in accordance with the Pooling and Servicing
Agreement, will be validly issued and outstanding and entitled
to the benefits of the Pooling and Servicing Agreement. The
participants to whose accounts The Depository Trust Company
has credited the Certificates have acquired all the Trust's
rights in the Certificates free of any adverse claim, assuming
that such participants purchased the Certificates for value
and without notice of any adverse claim.
(iii) No consent, approval, authorization or order of
any state or federal court or governmental agency or body is
required to be obtained by the Company or the Seller for the
consummation of the transactions contemplated by the Pooling
and Servicing Agreement or this Agreement, except such as may
be required under federal or state securities laws in
connection with the distribution of the Certificates by the
Underwriter pursuant to this Agreement.
(iv) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as now in effect. The Trust created by the Pooling and
Servicing Agreement is not, and will not as a result of the
offer and sale of the Certificates as contemplated in the
Prospectus and in this Agreement become, an "investment
company" or "under the control of an investment company" as
such terms are defined in the 1940 Act.
(v) The statements in the Prospectus Supplement under
the caption "Description of the Certificates", insofar as such
statements purport to summarize certain terms of the
Certificates and the Pooling and Servicing Agreement, conform
in all material respects with such documents. The statements
in the Prospectus under the headings "Legal Aspects of the
Loans; Repurchase Obligations", "Federal Income Tax
Consequences", and "ERISA Considerations", to the extent that
they constitute matters of law or legal conclusions, are
correct in all material respects.
(vi) Neither the transfer of the Loans to the Trustee
acting on behalf of the Trust, nor the issuance or sale of the
Certificates, nor the execution and delivery of the Pooling
and Servicing Agreement or this
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Agreement, nor the consummation of any other of the
transactions contemplated in the Pooling and Servicing
Agreement or this Agreement, nor the fulfillment of the terms
of the Certificates, the Pooling and Servicing Agreement or
this Agreement by the Company or the Seller will conflict
with, or result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the
Certificate of Incorporation or By-laws of the Company or the
Seller or of any indenture or other agreement or instrument
known to us to which the Company or the Seller is a party or
by which it is bound, or result in a violation of, or
contravene the terms of any statute, order or regulation,
applicable to the Company or the Seller, of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over it.
(vii) There are no actions or proceedings or, to the
best of such counsel's knowledge, actions, proceedings or
investigations pending or overtly threatened against the
Company or the Seller before any court, administrative agency
or other tribunal (A) asserting the invalidity of this
Agreement, the Pooling and Servicing Agreement, the
Certificates, the hazard or flood insurance policies
applicable to any Loans or the Errors and Omissions Protection
Policy, (B) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement or the Pooling and Servicing
Agreement, (C) which is likely materially and adversely to
affect the performance by the Company or the Seller of their
obligations under, or the validity or enforceability of, this
Agreement, the Pooling and Servicing Agreement or the
Certificates, or (D) seeking adversely to affect the federal
income tax attributes of the Certificates described in the
Prospectus Supplement under the heading "Federal Income Tax
Consequences".
(viii) The transfer of the Loans from the Company to
the Seller in accordance with Section 2.1 of the Transfer
Agreement would not be avoidable as a preferential transfer
under Section 547 of the United States Bankruptcy Code (11
U.S.C. ss.547), as in effect on the date hereof, in the event
that the Seller became a debtor under the United States
Bankruptcy Code.
(ix) Pursuant to the Transfer Agreement, the Company
has transferred to the Seller all of the Company's right,
title and interest in the Loans, free and clear of any and all
other assignments, encumbrances, options, rights, claims,
liens or security interests (except tax or possessory liens)
that may affect the right of the Seller in and to such Loans,
and has delivered the Loan Files to the Trustee on behalf of
the Seller, or its custodian. No filing or other action, other
than the filing of a financing statement on Form UCC-1 with
the Secretary of State of the State of Minnesota, and the
filing of continuation statements as required by Section 4.01
of the Pooling and Servicing Agreement, is necessary to
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perfect as against third parties the assignment of the Loans
from the Company to the Seller.
Pursuant to the Pooling and Servicing Agreement, the
Seller has transferred to the Trustee, acting on behalf of the
Trust, all of the Seller's right, title and interest in the
Loans, free and clear of any and all other assignments,
encumbrances, options, rights, claims, liens or security
interests (except tax or possessory liens) that may affect the
right of the Trustee in and to such Loans, and has delivered
the Loan Files to the Trustee or its custodian. No filing or
other action, other than the filing of a financing statement
on Form UCC-1 with the Secretary of State of the State of
Minnesota, and the filing of continuation statements as
required by Section 4.01 of the Pooling and Servicing
Agreement, is necessary to perfect as against third parties
the assignment of the Loans from the Seller to the Trust.
(x) The Registration Statement has been declared
effective under the 1933 Act and no stop orders suspending the
effectiveness of the Registration Statement have been issued
under the 1933 Act nor, to the best of such counsel's
knowledge, have proceedings therefor been initiated or
threatened by the Commission.
(xi) The Registration Statement and the Prospectus
(other than the financial statements and other financial,
statistical and numerical information included therein or, in
the case of Computational Materials, incorporated therein by
reference, as to which such counsel need express no opinion),
as of their respective effective or issue dates, complied as
to form in all material respects with the requirements of the
1933 Act and the Regulations thereunder.
(xii) The conditions to the use by the Company and
the Seller of a registration statement on Form S-3 under the
1933 Act, as set forth in the General Instructions to Form
S-3, have been satisfied with respect to the Registration
Statement and the Prospectus, except that such counsel need
express no opinion regarding any Computational Materials
incorporated by reference therein. To the best of such
counsel's knowledge, there are no contracts or documents (not
including Computational Materials) of the Company or of the
Seller which are required to be filed as exhibits to the
Registration Statement pursuant to the 1933 Act or the
Regulations thereunder which have not been so filed or
incorporated by reference.
(xiii) For Federal income tax purposes, assuming that
the Company, the Seller and the Trustee at all times comply
with the requirements of the Pooling and Servicing Agreement,
including, without limitation, the requirement that a proper
election to be taxed as a REMIC is made in accordance with the
Pooling and Servicing Agreement and the
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Internal Revenue Code of 1986, as amended (the "Code"), and
that the certificates representing interests in the Trust will
be issued as described in the Certificates, the Trust created
pursuant to the Pooling and Servicing Agreement will qualify
as one or more REMICs under the Code and under the REMIC
Regulations, and the Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class M-1, Class M-2, Class B-1 and Class B-2
Certificates will evidence ownership of the "regular
interests" and the Class C Certificate will evidence ownership
of the single class of "residual interests" in such REMIC.
(xiv) For Minnesota income tax purposes, the Trust
will not be subject to tax and the income of the Trust will be
taxable to the holders of interests therein, all in accordance
with the provisions of the Code concerning REMICs as amended.
Moreover, ownership of Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class M-1, Class M-2 and Class B-1
Certificates will not be a factor in determining whether such
owner is subject to Minnesota income taxes. Therefore, if the
owner of Class A-1, Class A-2, Class A-3, Class A-4, Class
A-5, Class M-1, Class M-2 and Class B-1 Certificates is not
otherwise subject to Minnesota income or franchise taxes in
the State of Minnesota, such owner will not become subject to
such Minnesota taxes solely by virtue of owning Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class M-1, Class
M-2 and Class B-1 Certificates.
Such counsel shall deliver to the Underwriter such
additional opinions addressing the transfer by the Company to
the Seller, and by the Seller to the Trustee, of its right,
title and interest in and to the Loans and other property
included in the Trust on the Closing Date as may be required
by each Rating Agency rating the Certificates.
Such counsel shall state that it has participated in
the conferences with officers and other representatives of the
Company and the Seller, counsel for the Underwriter,
representatives of the independent accountants for the
Company, the Seller and the Underwriter at which the contents
of the Registration Statement and the Prospectus were
discussed and, although such counsel is not passing upon, and
does not assume responsibility for, the factual accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except as stated in
paragraphs (xi) and (xii) above) and has made no independent
check or verification thereof for the purpose of rendering
this opinion, on the basis of the foregoing (relying as to
materiality to a large extent upon the certificates of
officers and other representatives of the Company and the
Seller), nothing has come to their attention that leads such
counsel to believe that the Registration Statement, when it
became effective, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the
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<PAGE>
statements therein not misleading or that the Registration
Statement and the Prospectus on the Closing Date contained,
and the Prospectus as of its date and as of the date of such
opinion contains, any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that such counsel need express no view with respect to
the financial statements, schedules and other financial,
statistical and numerical data included in or incorporated by
reference into the Registration Statement or the Prospectus.
Said counsel may state that they are admitted to
practice only in the State of Minnesota, that any such opinion
is limited to the laws of the State of Minnesota, the Delaware
General Corporation law and the federal laws of the United
States of America, that they are not admitted to the Bar in
any other State and are not experts in the law of any other
State (other than Delaware General Corporation law) and to the
extent that the foregoing opinions concern the laws of any
other State such counsel may rely upon the opinion of counsel
satisfactory to the Underwriter and admitted to practice in
such jurisdiction. Any opinions relied upon by such counsel as
aforesaid shall be addressed to the Underwriter and shall be
delivered together with the opinion of such counsel, which
shall state that such counsel believes that their reliance
thereon is justified.
(2) The favorable opinion of counsel to the Trustee,
dated as of the Closing Date, addressed to the Underwriter and
in form and scope satisfactory to its counsel, to the effect
that:
(i) The Trustee has duly authorized, executed and
delivered the Pooling and Servicing Agreement.
(ii) The Trustee has full power and authority to
execute and deliver the Pooling and Servicing Agreement and to
perform its obligations thereunder.
(iii) To the best of such counsel's knowledge, there
are no actions, proceedings or investigations pending or
threatened against or affecting the Trustee before or by any
court, arbitrator, administrative agency or other governmental
authority which, if adversely decided, would materially and
adversely affect the ability of the Trustee to carry out the
transactions contemplated in the Pooling and Servicing
Agreement.
(iv) No consent, approval or authorization of, or
registration, declaration or filing with, any court or
governmental agency or body of the jurisdiction of
incorporation of the Trustee is required for the execution,
delivery or performance by the Trustee of the Pooling and
Servicing Agreement.
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<PAGE>
In rendering such opinion, such counsel may rely, as
to matters of fact, to the extent deemed proper and stated
therein, on certificates of responsible officers of the
Trustee or public officials.
(3) To the extent specified in the Terms Agreement,
if any of the Loans constituting a portion of the Trust have
been or are being purchased by the Company or the Seller from
a third party, the favorable opinion of counsel to such third
party, dated as of the Closing Date, addressed to the
Underwriter and in form and scope satisfactory to its counsel
to the effect that such third party has effectively conveyed
to the Company or the Seller, as the case may be, all of its
right, title and interest in and to such Loans as of the
Closing Date, and upon the occurrence of any proceedings with
respect to such third party under the federal or state
bankruptcy, insolvency or similar law, or the appointment of
or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of
such third party or of any substantial part of its property or
the making by such third party of an assignment for the
benefit of creditors, such Loans would not be deemed to be
part of the assets of such third party.
(4) The favorable opinion or opinions, dated as of
the Closing Date, of counsel for the Underwriter with respect
to the issue and sale of the Certificates, the Registration
Statement, this Agreement, the Prospectus, the Prospectus
Supplement and other related matters as the Underwriter may
require.
(c) On the Closing Date the Underwriter shall have received a
certificate of the President or a Vice President of the Company, dated
as of the Closing Date, to the effect that (i) the representations and
warranties of the Company contained in Section 1 are true and correct
with the same force and effect as though such representations and
warranties were made as of the Closing Date, (ii) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued or proceedings therefor initiated or threatened by the
Commission, and (iii) there has not been any material adverse change in
the general affairs, management, or results of operation of the
Company, other than as set forth in the Prospectus or the Prospectus
Supplement at the Closing Date.
(d) On the Closing Date the Underwriter shall have received a
certificate of the President or a Vice President of the Seller, dated
as of the Closing Date, to the effect that (i) the representations and
warranties of the Seller contained in Section 2 are true and correct
with the same force and effect as though such representations and
warranties were made as of the Closing Date, (ii) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued or proceedings therefor initiated or threatened by the
Commission, and (iii) there has not been any material adverse change in
the
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<PAGE>
general affairs, management, or results of operation of the Seller,
other than as set forth in the Prospectus or the Prospectus Supplement
at the Closing Date, and any other certificate of an officer of the
Company or Conseco, Inc. as the Underwriter reasonably requests.
(e) The Underwriter shall have received from [ACCOUNTANT], or
other independent certified public accountants acceptable to the
Underwriter, a letter, dated as of the Closing Date, delivered at such
time, in the form heretofore agreed to.
(f) On the Closing Date the Underwriter shall have received,
addressed to the Underwriter, any additional opinions delivered by
counsel pursuant to the request of each Rating Agency rating the
Certificates.
(g) On the Closing Date, counsel for the Underwriter shall
have been furnished with such documents and opinions as they reasonably
may require for the purpose of enabling them to pass upon the issuance
and sale of the Certificates as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by the
Company and the Seller in connection with the issuance and sale of the
Certificates as herein contemplated shall be satisfactory in form and
substance to the Underwriter and its counsel.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the Terms Agreement may be
terminated by the Underwriter by notice to the Company and the Seller at any
time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Section 8.
SECTION 6. Offering by Underwriter; Investor Information.
(a) It is understood that the Underwriter agree that they
shall offer and sell the Certificates listed on Schedule I hereto that
are not rated in the top three categories exclusively to institutional
investors qualifying as "accredited investors" under Rule 501(a)(1)-(3)
of Regulation D promulgated by the Securities and Exchange Commission
under the 1933 Act, savings and loan associations, registered
broker-dealers, or corporations having total assets in excess of
$5,000,000.
(b) The Underwriter may prepare and provide to prospective
investors certain Computational Materials, ABS Term Sheets or
Collateral Term Sheets in connection with its offering of the
Certificates, subject to the following conditions:
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(1) The Underwriter shall comply with the
requirements of the No-Action Letter of May 20, 1994 issued by
the Commission to Kidder, Peabody Acceptance Corporation I,
Kidder, Peabody & Co. Incorporated and Kidder Structured Asset
Corporation, as made applicable to other issuers and
Underwriter by the Commission in response to the request of
the Public Securities Association dated May 24, 1994
(collectively, the "Kidder/PSA Letter"), and the requirements
of the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (the "PSA
Letter" and, together with the Kidder/PSA Letter, the
"No-Action Letters").
(2) For purposes hereof, "Computational Materials"
shall have the meaning given such term in the No-Action
Letters, but shall include only those Computational Materials
that have been prepared or delivered to prospective investors
by any Underwriter. For purposes hereof, "ABS Term Sheets" and
"Collateral Term Sheets" shall have the meanings given such
terms in the PSA Letter but shall include only those ABS Term
Sheets or Collateral Term Sheets that have been prepared or
delivered to prospective investors by any Underwriter.
(3) The Underwriter shall provide to the Company any
Computational Materials, ABS Term Sheets or Collateral Term
Sheets which are provided to investors by it no later than the
date preceding the date such Computational Materials, ABS Term
Sheets or Collateral Term Sheets are required to be filed
pursuant to the applicable No-Action Letters. The Underwriter
may provide copies of the foregoing in a consolidated or
aggregated form including all information required to be
filed.
(4) In the event that the Company, the Seller or any
Underwriter discovers an error in the Computational Materials,
ABS Term Sheets or Collateral Term Sheets, the Underwriter
that prepared such material shall prepare corrected
Computational Materials, ABS Term Sheets or Collateral Term
Sheets, as applicable, and deliver them to the Seller for
filing pursuant to Section 4(k).
SECTION 7. Payment of Expenses. The Company will pay all expenses
incident to the performance of the Company's and the Seller's obligations under
this Agreement, including without limitation those related to (i) the filing of
the Registration Statement and all amendments thereto, (ii) the printing and
delivery to the Underwriter, in such quantities as they may reasonably request,
of copies of this Agreement, the Terms Agreement, and the Underwriter'
questionnaires, if any, and powers of attorney, (iii) the preparation, issuance
and delivery of the Certificates to the Underwriter, (iv) the fees and
disbursements of the Company's and the Seller's counsel and accountants, (v) the
qualification of the Certificates under securities and Blue Sky laws and the
determination of the eligibility of the Certificates for investment in
accordance with the provisions of
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Section 4(f), including filing fees, and the fees and disbursements of counsel
for the Underwriter in connection therewith and in connection with the
preparation of any Blue Sky Survey and Legal Investment Survey, (vi) the
printing and delivery to the Underwriter, in such quantities as they may
reasonably request, of copies of the Registration Statement and Prospectus and
all amendments and supplements thereto, and of any Blue Sky Survey and Legal
Investment Survey, (vii) the printing and delivery to the Underwriter, in such
quantities as they may reasonably request, of copies of the Pooling and
Servicing Agreement, (viii) the fees charged by investment rating agencies for
rating the Certificates, (ix) the fees and expenses incurred in connection with
the listing of the Certificates on any national securities exchange, (x) the
fees and expenses incurred with respect to the National Association of
Securities Dealers, Inc., including the fees and disbursements of counsel for
the Underwriter in connection therewith and (xi) the fees and expenses of the
Trustee and its counsel.
If the Terms Agreement is terminated by the Underwriter in accordance
with the provisions of Section 5 or Section 11(i) hereof, the Company shall
reimburse you for all reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of your counsel.
SECTION 8. Indemnification.
(a) Each of the Company and the Seller, jointly and severally,
agrees to indemnify and hold harmless the Underwriter and each person,
if any, who controls the Underwriter within the meaning of Section 15
of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred (x) arising out of
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or (y) arising out
of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading, unless such untrue statement
or omission or alleged untrue statement or omission was made
in reliance upon and in conformity with written information
furnished to the Company and the Seller by the Underwriter
expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or
supplement thereto);
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Computational
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Materials, ABS Term Sheets or Collateral Term Sheets
distributed by any Underwriter; unless such untrue statement
or alleged untrue statement of a material fact was made in
reliance upon and in conformity with Derived Information
provided by the Underwriter expressly for use in the
Computational Materials, the ABS Term Sheets or the Collateral
Term Sheets and the untrue statement or alleged untrue
statement did not derive from an inaccuracy in the
Company-Provided Information or the Seller-Provided
Information used in the preparation of such Computational
Materials, ABS Term Sheets or Collateral Term Sheets;
(iii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, if such
settlement is effected with the written consent of the Company
or the Seller; and
(iv) against any and all expense whatsoever
(including the fees and disbursements of counsel chosen by the
Underwriter), reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, to the extent that any such expense is
not paid under (i), (ii) or (iii) above.
This indemnity agreement will be in addition to any liability
which the Company and the Seller may otherwise have. Insofar as this
indemnity may permit indemnification for liabilities under the 1933 Act
of any person who is a partner of the Underwriter entitled to indemnity
hereby or who controls the Underwriter within the meaning of Section 15
of the 1933 Act and who, at the date of this Agreement, is a director,
officer or controlling person of the Company or the Seller, such
indemnity agreement is subject to the undertaking of the Company in the
Registration Statement.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each of the Company's directors, each of the Company's
officers who signed the Registration Statement, the Seller, each of the
Seller's directors, each of the Seller's officers who signed the
Registration Statement, and each person, if any, who controls the
Company and the Seller within the meaning of Section 15 of the 1933 Act
as follows:
(i) against any and all loss, liability, claim,
damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the
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Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information
furnished to the Company or the Seller by the Underwriter
expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or
supplement thereto); and
(ii) against any and all loss, liability, claim,
damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with
respect to untrue statements or alleged untrue statements made
in the Computational Materials, Collateral Term Sheets or ABS
Term Sheets furnished by the Underwriter to the extent that
such untrue statement or alleged untrue statement of a
material fact was made in reliance upon and in conformity with
Derived Information provided by it expressly for use in the
Computational Materials, the ABS Term Sheets or the Collateral
Term Sheets and the untrue statements or alleged untrue
statements were not derived from any inaccuracy in the
Company-Provided Information or the Seller-Provided
Information used in the preparation of such Computational
Materials, ABS Term Sheets or Collateral Term Sheets.
This indemnity agreement will be in addition to any liability
which the Underwriter may otherwise have.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it with respect to
which indemnity may be sought hereunder but failure to so notify an
indemnifying party shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of
such action. In no event shall the indemnifying parties be liable for
the fees and expenses of more than one counsel (in addition to any
local counsel) for all indemnified parties in connection with any one
action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances.
In case any action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party may participate at its own expense in the defense of
any such action, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from the indemnified party to assume the defense
thereof, with counsel satisfactory to such indemnified party. In any
such proceeding, any indemnified party shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the
24
<PAGE>
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iii) the indemnifying
party shall have failed to provide counsel within a reasonable amount
of time. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. Unless it shall assume the defense of any
proceeding, an indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party shall indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. If an indemnifying party assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the
consent of the indemnified party or, if such settlement (i) provides
for release of the indemnified party in connection with all matters
relating to the proceeding that have been asserted against the
indemnified party in such proceeding by the other parties to such
settlement and (ii) does not include a statement as to, or an admission
of, fault, culpability or a failure to act by or on behalf of an
indemnified party, then without the consent of the indemnified party.
If, but only if, all Company-Provided Information and all
Seller-Provided Information is accurate and complete in all material respects,
the references to "written information furnished to the Company" in Sections
8(a) and 8(b) of this Agreement shall be deemed to include any Derived
Information contained in a Form 8-K relating to the Certificates filed by the
Seller with the Commission. For purposes of this Section, the term "Derived
Information" means such portion, if any, of the information furnished to the
Company or the Seller by any Underwriter and contained in any Form 8-K relating
to the Certificates filed by the Seller with the Commission as:
(1) is not also contained in the Prospectus or the Prospectus
Supplement without taking into account information incorporated therein
by reference; and
(2) does not constitute Company-Provided Information or
Seller-Provided Information.
"Company-Provided Information" means the information set forth under the heading
"The Loans" in the Prospectus Supplement and any computer tape or other
information furnished to any Underwriter by or on behalf of the Company
concerning the assets of the Trust. The "Seller-Provided Information" means the
information set forth under the heading "The Loans" in the Prospectus Supplement
and any computer tape or other information furnished to any Underwriter by or on
behalf of the Seller concerning the assets of the Trust.
25
<PAGE>
SECTION 9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Seller on the one hand and the Underwriter on the other shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Company, the Seller and
the Underwriter (i) in such proportion as shall be appropriate to reflect the
relative benefit received by the Underwriter, as represented by the percentage
that the underwriting discount or discounts on the cover of the Prospectus
Supplement bears to the initial public offering price or prices as set forth
thereon, and the Company and the Seller shall be responsible for the balance or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
benefit referred to in clause (i) above but also the relative fault of the
Company and the Seller on the one hand and the Underwriter on the other with
respect to statements or omissions which resulted in such loss, claims, damage
or liability, or action in respect thereof, as well as any omissions relevant
equitable considerations; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation and, provided further, you shall not be required to contribute
any amount in excess of the amount by which the total price of the Certificates
purchased by you pursuant to the Terms Agreement exceeds the amount of any
damages which you have otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. For purposes
of this Section, each person, if any, who controls the Underwriter within the
meaning of Section 15 of the 1933 Act shall have the same rights to contribution
as the Underwriter and each director of the Company and the Seller, each officer
of the Company and the Seller who signed the Registration Statement, and each
person, if any, who controls the Company and the Seller within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as the
Company and the Seller.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company or of the
Seller submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any termination of this Agreement, or any investigation
made by or on behalf of each Underwriter or controlling person thereof, or by or
on behalf of the Company and the Seller and shall survive delivery of any
Certificates to the Underwriter.
SECTION 11. Termination of Agreement. This Agreement may be terminated
for any reason at any time by either the Company, the Seller or you upon the
giving of thirty (30) days' written notice of such termination to the other
party hereto. The Underwriter may also terminate the Terms Agreement,
immediately upon notice to the Company and the Seller, at any time at or prior
to the Closing Date (i) if there has been, since the date of the Terms Agreement
or since the respective dates as of which information is given in the
Registration Statement or Prospectus any change, or any
26
<PAGE>
development involving a prospective change in, or affecting, the condition,
financial or otherwise, earnings, affairs or business of the Company or the
Seller whether or not arising in the ordinary course of business, which in the
Underwriter's judgment would materially impair the market for, or the investment
quality of, the Certificates, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or if there has occurred
any outbreak of hostilities or other calamity or crisis the effect of which on
the financial markets of the United States is such as to make it, in the
Underwriter's judgment, impracticable to market the Certificates or enforce
contracts for the sale of the Certificates, or (iii) if trading generally on
either the New York Stock Exchange or the American Stock Exchange has been
suspended, or minimum or maximum prices for securities have been required, by
either of said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal,
Minnesota, Delaware or New York authorities. In the event of any such
termination, (A) the covenants set forth in Section 4 with respect to any
offering of the Certificates shall remain in effect so long as the Underwriter
owns any such Certificates purchased from the Company or the Seller pursuant to
the Terms Agreement and (B) the covenant set forth in Section 3(c), the
provisions of Section 7, the indemnity agreement set forth in Section 8, and the
contribution provisions set forth in Section 9, and the provisions of Sections
10 and 13 shall remain in effect.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to the address set forth on the first page hereof.
Notices to the Company shall be directed to Conseco Finance Corp., 1100 Landmark
Towers, 345 St. Peter Street, Saint Paul, Minnesota 55102-1639, attention of the
Secretary, with a copy to the Treasurer. Notices to the Seller shall be directed
to Conseco Finance Securitizations Corp., 1100 Landmark Towers, 345 St. Peter
Street, Saint Paul, Minnesota 55102-1639, attention of the Secretary, with a
copy to the Treasurer.
SECTION 13. Parties. This Agreement shall inure to the benefit of and
be binding upon each Underwriter, the Company and the Seller and the Terms
Agreement shall inure to the benefit of and be binding upon each Underwriter,
the Company and the Seller. Nothing expressed or mentioned in this Agreement or
the Terms Agreement is intended or shall be construed to give any person, firm
or corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 9 and 10 and their heirs and legal representatives any legal or
equitable right, remedy or claim under or with respect to this Agreement or the
Terms Agreement or any provision herein or therein contained. This Agreement and
the Terms Agreement and all conditions and provisions hereof or thereof are
intended to be for the sole and exclusive benefit of the parties and their
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives (to the extent of their rights as
specified herein and therein) and for the benefit of no other person, firm or
corporation. No purchaser of the Certificates from the Underwriter shall be
deemed to be a successor by reason merely of such purchase.
27
<PAGE>
SECTION 14. Governing Law and Time. This Agreement and the Terms
Agreement shall be governed by the laws of the State of New York. Specified
times of day refer to New York City time.
SECTION 15. Counterparts. This Agreement and the Terms Agreement may be
executed in counterparts, each of which shall constitute an original of any
party whose signature appears on it, and all of which shall together constitute
a single instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you, the Company and the Seller in accordance with its terms.
Very truly yours,
CONSECO FINANCE CORP.
By:
-----------------------------------
Name:
Title:
CONSECO FINANCE
SECURITIZATIONS CORP.
By:
-----------------------------------
Name:
Title:
[UNDERWRITER]
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
28
<PAGE>
SCHEDULE I
UNDERWRITING
The Underwriter has agreed, subject to the terms and conditions of the
Underwriting Agreement, to purchase from the Company and the Seller the
principal amounts of the Certificates set forth opposite their names below.
<TABLE>
<CAPTION>
---------------------------- -------------------------- -------------------------- --------------------------
Underwriter Principal Amount of Principal Amount of Principal Amount of
Certificates Certificates Certificates
---------------------------- -------------------------- -------------------------- --------------------------
<S> <C> <C> <C>
[UNDERWRITER] $ $ $
---------------------------- -------------------------- -------------------------- --------------------------
</TABLE>
29
<PAGE>
EXHIBIT A
CONSECO FINANCE SECURITIZATIONS CORP., SELLER
CONSECO FINANCE CORP., SERVICER
Certificates for Home Improvement Loans Conseco
Finance Home Improvement Loan Trust 2000-__
[Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class M-1, Class M-2 and Class B-1
TERMS AGREEMENT
Dated:
To: Conseco Finance Corp. (the "Company") and Conseco Finance
Securitizations Corp. (the "Seller"
From: Credit Suisse First Boston Corporation (the "Underwriter") under the
Underwriting Agreement (the "Underwriting Agreement"), dated
____________, 2000
Re: Certificates for Home Improvement Loans
Conseco Finance Home Improvement Loan Trust 2000-__
Series Designation: Certificates for Home Improvement Loans
Conseco Finance Home Improvement Loan Trust 2000-__,
[Class A-1, Class A-2, Class A-3, Class A-4, Class A-5,
Class M-1, Class M-2 and Class B-1]
Terms of the Certificates:
CLASS PRINCIPAL AMOUNT PASS-THROUGH RATE
[* Approximate. Subject to permitted variance of plus or minus 5%.]
A-1
<PAGE>
Certificate Ratings:
The Class A-1, Class A-2, Class A-3, Class A-4 and Class A-5
Certificates shall be assigned a rating not lower than "AAA" by Standard and
Poor's Rating Services ("S&P") and Fitch IBCA, Inc. ("Fitch"), the Class M-1
Certificates shall be assigned a rating not lower than "AA" by S&P and Fitch,
the Class M-2 Certificates shall be assigned a rating not lower than "A" by S&P
and Fitch, and the Class B-1 Certificates shall be assigned a rating not lower
than "BBB"by S&P and Fitch and not lower than "Baa2" by Moody's Investors
Service, Inc.
REMIC Election:
The Company intends to elect to cause the Trust (excluding the
Pre-Funding Account and the Capitalized Interest Account) to be treated as a
REMIC.
Servicer:
Conseco Finance Corp. (in such capacity, the "Servicer").
Seller:
Conseco Finance Securitizations Corp. (in such capacity, the "Seller").
Trust:
The Trust shall include fixed-rate closed-end home improvement loans
(the "Loans") conveyed by the Seller and listed as an Exhibit to the Pooling and
Servicing Agreement.
The Trust shall include (i) the Loans, including all rights to receive
payments on the Loans after the Cut-off Date, (ii) the amounts held from time to
time in an interest bearing trust account (the "Certificate Account") maintained
by the Trustee pursuant to the Pooling and Servicing Agreement and (iii) all
liens on the related real estate.
Credit Enhancement:
Subordination of the Class M-1, Class M-2, Class B-1 and Class B-2
Certificates to the Class A Certificates. Subordination of the Class M-2, Class
B-1 and Class B-2 Certificates to the Class M-1 Certificates. Subordination of
the Class B-1 and Class B-2 Certificates to the Class M-2 Certificates.
Subordination of the Class B-2 Certificates to the Class B-1 Certificates.
A-2
<PAGE>
Payment Dates:
The 15th day (or if such day is not a business day, the next succeeding
business day) of each month commencing in [MONTH] 2000.
Purchase Price:
Subject to the terms of the following paragraph, the purchase price
payable by the Underwriter for each Class of Certificates is:
% of the principal amount of the Class A-1 Certificates;
% of the principal amount of the Class A-2 Certificates;
% of the principal amount of the Class A-3 Certificates;
% of the principal amount of the Class A-4 Certificates;
% of the principal amount of the Class A-5 Certificates;
% of the principal amount of the Class M-1 Certificates;
% of the principal amount of the Class M-2 Certificates; and
% of the principal amount of the Class B-1 Certificates.
Payment of the purchase price shall be in immediately available Federal
funds wired to such bank as may be designated by the Seller.
Underwriting Commission:
Notwithstanding anything to the contrary in the Underwriting Agreement,
no additional underwriting commission shall be payable by the Company to the
Underwriter in connection with the purchase of the Certificates.
Public Offering price and/or method of determining price at which the
Underwriter will sell the Certificates:
Class A-1 Certificates %
Class A-2 Certificates %
Class A-3 Certificates %
Class A-4 Certificates %
Class A-5 Certificates %
Class M-1 Certificates %
Class M-2 Certificates %
Class B-1 Certificates %
A-3
<PAGE>
Closing Date and Location:
On or about [DATE], 2000, offices of [COUNSEL NAME/ADDRESS] Minneapolis,
Minnesota 55402.
A-4
<PAGE>
IN WITNESS WHEREOF, the Company, the Seller and the Underwriter have
caused their names to be signed by their respective officers thereunto duly
authorized as of the date first above written.
[UNDERWRITER]
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
ACCEPTED AND AGREED TO:
CONSECO FINANCE CORP.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
CONSECO FINANCE SECURITIZATIONS CORP.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
A-5
