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EXHIBIT 4.2
Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificates, Series 2000-5
TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
CONSECO FINANCE CORP.
Seller
dated as of
October 1, 2000
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS 1
SECTION 1.1. General.....................................................1
SECTION 1.2. Specific Terms..............................................1
SECTION 1.3. Usage of Terms..............................................3
SECTION 1.4. No Recourse.................................................3
ARTICLE II CONVEYANCE OF THE INITIAL CONTRACTS AND THE INITIAL
COLLATERAL SECURITY...............................................4
SECTION 2.1. Conveyance of the Initial Contracts and the Initial
Collateral Security.........................................4
SECTION 2.2. Purchase Price of Initial Contracts.........................4
SECTION 2.3. Conveyance of Subsequent Contracts and Subsequent
Collateral Security.........................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES...................................6
SECTION 3.1. Representations and Warranties of CFC.......................6
SECTION 3.2. Representations and Warranties of CFSC......................7
ARTICLE IV COVENANTS OF CFC..................................................9
SECTION 4.1. Transfer of Contracts.......................................9
SECTION 4.2. Costs and Expenses..........................................9
SECTION 4.3. Indemnification.............................................9
SECTION 4.4. Financial Statement Disclosure.............................10
SECTION 4.5. Staged-Funding Contracts...................................10
ARTICLE V REPURCHASES 10
SECTION 5.1. Repurchase of Contracts Upon Breach of Warranty............10
SECTION 5.2. Reassignment of Purchased Contracts........................11
SECTION 5.3. Waivers....................................................11
ARTICLE VI MISCELLANEOUS....................................................11
SECTION 6.1. Liability of CFC...........................................11
SECTION 6.2 Merger or Consolidation of CFC or CFSC.....................11
SECTION 6.3. Limitation on Liability of CFC and Others..................12
SECTION 6.4. Amendment..................................................12
SECTION 6.5. Notices....................................................13
SECTION 6.6. Merger and Integration.....................................13
SECTION 6.7. Severability of Provisions.................................13
SECTION 6.8. Intention of the Parties...................................14
SECTION 6.9. Governing Law..............................................14
SECTION 6.10. Counterparts...............................................14
SECTION 6.11. Conveyance of the Initial Contracts and the Initial
Collateral Security to the Trust...........................14
SECTION 6.12. Nonpetition Covenant.......................................15
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SCHEDULES
Schedule A -- Schedule of Initial Contracts
EXHIBITS
Exhibit A -- Form of Subsequent Transfer Agreement
ii
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TRANSFER AGREEMENT
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THIS TRANSFER AGREEMENT, dated as of October 1, 2000, executed between
Conseco Finance Securitizations Corp., a Minnesota corporation, as purchaser
("CFSC"), and Conseco Finance Corp., a Delaware corporation, as seller ("CFC").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, CFSC has agreed to purchase from CFC, and CFC has agreed to
transfer to CFSC, certain manufactured housing installment sales contracts
pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter contained, and for other good and valuable consideration, the
receipt of which is acknowledged, CFSC and CFC, intending to be legally bound,
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. General. The specific terms defined in this Article include
the plural as well as the singular. The words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision, and Article, Section,
Schedule and Exhibit references, unless otherwise specified, refer to Articles
and Sections of and Schedules and Exhibits to this Agreement. Capitalized terms
used herein without definition shall have the respective meanings assigned to
such terms in the Pooling and Servicing Agreement, dated as of October 1, 2000,
by and among Conseco Finance Securitizations Corp. (as Seller), Conseco Finance
Corp. (in its individual capacity and as Servicer), and U.S. Bank National
Association, as trustee (the "Trustee") relating to the Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificates Trust 2000-5 (the
"Trust").
SECTION 1.2. Specific Terms. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
"Agreement" shall mean this Transfer Agreement and all amendments
hereof and supplements hereto.
"Closing Date" means, October 5, 2000.
"Collateral Security" means the Initial Collateral Security conveyed
by CFC to CFSC pursuant to this Agreement together with any and all
Subsequent Collateral Security conveyed by CFC to CFSC pursuant to each
Subsequent Transfer Agreement.
"Contracts" means the Initial Contracts conveyed by CFC to CFSC
pursuant to this Agreement together with any and all Subsequent Contracts
conveyed by CFC to CFSC pursuant to each Subsequent Transfer Agreement.
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"Initial Collateral Security" means, with respect to any Initial
Contract, (i) the security interests, if any, granted by or on behalf of
the related Obligor with respect thereto, including a first priority
perfected security interest in the related Manufactured Home, (ii) all
other security interests or liens and property subject thereto from time to
time purporting to secure payment of such Contract, whether pursuant to the
agreement giving rise to such Contract or otherwise, together with all
financing statements signed by the Obligor describing any collateral
securing such Contract, (iii) all security agreements granting a security
interest in the related Manufactured Home and all guarantees, insurance and
other agreements or arrangements of whatever character from time to time
supporting or securing payment of such Contract whether pursuant to the
agreement giving rise to such Contract or otherwise, and (iv) all records
in respect of such Contract.
"Initial Contracts" means the manufactured housing installment sales
contracts and installment loan agreements listed on the Schedule of Initial
Contracts, including all related security interests and any and all rights
to receive payments on or with respect thereto (other than principal and
interest due pursuant thereto on or before the applicable Cut-off Date).
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, dated as of October 1, 2000, executed and delivered by Conseco
Finance Corp., as Originator and Servicer; Conseco Finance Securitizations
Corp., as Seller; and the Trustee.
"Related Documents" means the Certificates, the Pooling and Servicing
Agreement, each Subsequent Transfer Agreement and the Underwriting
Agreement among CFC, CFSC and the underwriters of the Certificates. The
Related Documents to be executed by any party are referred to herein as
"such party's Related Documents," "its Related Documents" or by a similar
expression.
"Repurchase Event" means the occurrence of a breach of any of CFC's
representations and warranties hereunder or under any Subsequent Transfer
Agreement or any other event which requires the repurchase of a Contract by
CFC under the Pooling and Servicing Agreement.
"Schedule of Contracts" means the Schedule of Initial Contracts, as
supplemented by each Schedule of Subsequent Contracts.
"Schedule of Initial Contracts" means the schedule of manufactured
housing installment sales contracts and installment loan agreements which
is attached hereto as Schedule A.
"Schedule of Subsequent Contracts" means the schedule of manufactured
housing installment sales contracts and installment loan agreements sold
and transferred pursuant to a Subsequent Transfer Agreement, which schedule
is attached to such Subsequent Transfer Agreement as Schedule A and shall
supplement the Schedule of Initial Contracts.
"Subsequent Collateral Security" means, with respect to any Subsequent
Contract, (i) the security interests, if any, granted by or on behalf of
the related Obligor with respect thereto, including a first priority
perfected security interest in the related Manufactured Home, (ii) all
other security interests or liens and property subject thereto from time to
time purporting to secure payment of such Contract, whether pursuant to the
agreement giving rise to such Contract or otherwise, together with all
financing statements signed by the Obligor describing any
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collateral securing such Contract, (iii) all security agreements granting a
security interest in the related Manufactured Home and all guarantees,
insurance and other agreements or arrangements of whatever character from
time to time supporting or securing payment of such Contract whether
pursuant to the agreement giving rise to such Contract or otherwise, and
(iv) all records in respect of such Contract.
"Subsequent Contracts" means the manufactured housing installment
sales contracts and installment loan agreements specified in the Schedule
of Subsequent Contracts attached as Schedule A to each Subsequent Transfer
Agreement, including all related security interests and all rights to
receive payments on or with respect thereto (other than principal and
interest due on or before the applicable Cut-off Date).
"Subsequent Transfer Agreement" has the meaning assigned in Section
2.3(b)(iii).
"Trust" means the trust created by the Trust Agreement, known as
Manufactured Housing Contract Senior/Subordinate Pass-Through Certificate
Trust 2000-5, the estate of which consists of the Trust Property.
"Trust Property" means the property and proceeds of every description
conveyed by CFSC to the Trust pursuant to the Pooling and Servicing
Agreement and pursuant to any Subsequent Transfer Instrument, together with
the Certificate Account (including all Eligible Investments and all
proceeds therefrom).
"Trustee" means U.S. Bank National Association, a national banking
association organized and existing under the laws of the United States, not
in its individual capacity but solely as trustee of the Trust, and any
successor trustee appointed and acting pursuant to the Pooling and
Servicing Agreement.
SECTION 1.3. Usage of Terms. With respect to all terms used in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement or the Pooling and
Servicing Agreement; references to Persons include their permitted successors
and assigns; and the terms "include" or "including" mean "include without
limitation" or "including without limitation."
SECTION 1.4. No Recourse. Without limiting the obligations of CFC
hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of CFC, or
of any predecessor or successor of CFC.
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ARTICLE II
CONVEYANCE OF THE INITIAL CONTRACTS
AND THE INITIAL COLLATERAL SECURITY
SECTION 2.1. Conveyance of the Initial Contracts and the Initial Collateral
Security. Subject to the terms and conditions of this Agreement, CFC hereby
sells, transfers, assigns, and otherwise conveys to CFSC without recourse (but
without limitation of its obligations in this Agreement or in the Pooling and
Servicing Agreement), and CFSC hereby purchases, all right, title and interest
of CFC in and to the Initial Contracts and the Initial Collateral Security,
including all rights under every Hazard Insurance Policy relating to a
Manufactured Home securing an Initial Contract for the benefit of the owner of
such Contract, all rights under all FHA/VA Regulations pertaining to any Initial
Contract that is an FHA/VA Contract, the proceeds from the Errors and Omissions
Protection Policy and all rights under any blanket hazard insurance policy to
the extent they relate to a Manufactured Home securing an Initial Contracts, all
documents contained in the Contract Files and the Land-and-Home Contract Files,
and all proceeds and products in any way derived from any of the foregoing. It
is the intention of CFC and CFSC that the transfer and assignment contemplated
by this Agreement shall constitute a sale of the Initial Contracts and the
Initial Collateral Security from CFC to CFSC, conveying good title thereto free
and clear of any liens, and the Initial Contracts and the Initial Collateral
Security shall not be part of CFC's estate in the event of the filing of a
bankruptcy petition by or against CFC under any bankruptcy or similar law.
SECTION 2.2. Purchase Price of Initial Contracts. Simultaneously with the
conveyance of the Initial Contracts and the Initial Collateral Security to CFSC,
CFSC has (a) paid or caused to be paid to or upon the order of CFC approximately
$616,185,124.00 by wire transfer of immediately available funds (representing
the net proceeds to CFSC from the sale of the Initial Contracts after (i)
deducting expenses incurred by CFSC in connection with such sale, (ii)
depositing the Pre-Funded Amount and an amount equal to the Cut-off Date
Principal Balances of the Undelivered Contracts in the Pre-Funding Account,
(iii) depositing $500,000 in the Capitalized Interest Account, and (iv)
depositing $20,504,357.70 in the Staged-Funding Contract Reserve Account) and
(b) has delivered to CFC, or its designee, the Class B-2, Class B-3I and Class C
Certificates.
SECTION 2.3. Conveyance of Subsequent Contracts and Subsequent Collateral
Security.
(a) Subject to the conditions set forth in paragraph (b) below and the
terms and conditions in the related Subsequent Transfer Agreement, in
consideration of CFSC's delivery on the related Subsequent Transfer Date to
or upon the order of CFC of an amount equal to the purchase price of the
Subsequent Contracts (as set forth in the related Subsequent Transfer
Agreement), CFC hereby agrees to sell, transfer, assign, and otherwise
convey to CFSC without recourse (but without limitation of its obligations
in this Agreement and the related Subsequent Transfer Agreement), and CFSC
hereby agrees to purchase, all right, title and interest of CFC in and to
the Subsequent Contracts and the Subsequent Collateral Security described
in the related Subsequent Transfer Agreement.
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(b) CFC shall transfer to CFSC, and CFSC shall acquire, the Subsequent
Contracts and the Subsequent Collateral Security to be transferred on any
Subsequent Transfer Date only upon the satisfaction of each of the
following conditions on or prior to such Subsequent Transfer Date:
(i) CFSC shall have provided the Trustee and the Rating Agencies
with an Addition Notice at least five Business Days prior to the
Subsequent Transfer Date and shall have provided any information
reasonably requested by the Trustee with respect to the Subsequent
Contracts;
(ii) CFC shall have delivered to the Trustee the related
Land-and-Home Contract File for each Subsequent Contract that is a
Land-and-Home Contract at least two Business Days prior to the
Subsequent Transfer Date;
(iii) CFSC shall have delivered to CFC a duly executed Subsequent
Transfer Agreement substantially in the form of Exhibit A hereto (the
"Subsequent Transfer Agreement"), which shall include a Schedule of
Subsequent Contracts identifying the related Subsequent Contracts;
(iv) as of each Subsequent Transfer Date, as evidenced by
delivery of the Subsequent Transfer Agreement, neither CFC nor CFSC
shall be insolvent nor shall they have been made insolvent by such
transfer nor shall they be aware of any pending insolvency;
(v) such transfer shall not result in a material adverse tax
consequence to the Trust (including the Master REMIC and the
Subsidiary REMIC) or the Certificateholders or Class C
Certificateholders;
(vi) the Pre-Funding Period shall not have ended;
(vii) each of the representations and warranties contained in
Sections 3.02, 3.04, and 3.05 of the Pooling and Servicing Agreement
and in this Section 2.3 shall be true and correct, and each condition
precedent specified in this Section 2.3 shall be satisfied, as
evidenced by delivery of the Subsequent Transfer Agreement; and
(viii) CFC and CFSC shall have delivered to the Trustee Opinions
of Counsel addressed to the Rating Agencies and the Trustee with
respect to the transfer of the Subsequent Contracts substantially in
the form of the Opinions of Counsel delivered on the Closing Date
regarding certain bankruptcy, corporate and tax matters.
(c) CFC covenants to transfer to CFSC pursuant to paragraph (a) above
Subsequent Contracts with aggregate Scheduled Principal Balances
approximately equal to $74,267,854.13; provided, however, that the sole
remedy of CFSC with respect to a failure of such covenant shall be to
enforce the provisions of Section 8.07 of the Pooling and Servicing
Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of CFC. CFC makes the following
representations and warranties, on which CFSC relies in purchasing the Initial
Contracts and the Initial Collateral Security and in transferring the Initial
Contracts and the Initial Collateral Security to the Trust under the Pooling and
Servicing Agreement. Such representations are made as of the execution and
delivery of this Agreement, but shall survive the sale, transfer and assignment
of the Initial Contracts and the Initial Collateral Security hereunder and the
sale, transfer and assignment thereof by CFSC to the Trust under the Pooling and
Servicing Agreement. CFC and CFSC agree that CFSC will assign to the Trust all
of CFSC's rights under this Agreement and that the Trust will thereafter be
entitled to enforce this Agreement against CFC in the Trust's own name.
(a) Representations Regarding Contracts. The representations and
warranties set forth in Sections 3.02, 3.04 and 3.05 of the Pooling and
Servicing Agreement are true and correct.
(b) Organization and Good Standing. CFC has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and now
has, power, authority and legal right to acquire, own and sell the Initial
Contracts and the Initial Collateral Security transferred to CFSC.
(c) Due Qualification. CFC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification.
(d) Power and Authority. CFC has the power and authority to execute
and deliver this Agreement and its Related Documents and to carry out its
terms and their terms, respectively; CFC has full power and authority to
sell and assign the Initial Contracts and the Initial Collateral Security
to be sold and assigned to and deposited with CFSC hereunder and has duly
authorized such sale and assignment to CFSC by all necessary corporate
action; and the execution, delivery and performance of this Agreement and
CFC's Related Documents have been duly authorized by CFC by all necessary
corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and CFC's Related
Documents have been duly executed and delivered; shall effect a valid sale,
transfer and assignment of the Initial Contracts and the Initial Collateral
Security, enforceable against CFC and creditors of and purchasers from CFC;
and constitute legal, valid and binding obligations of CFC enforceable in
accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
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(f) No Violation. The consummation of the transactions contemplated by
this Agreement and the Related Documents and the fulfillment of the terms
of this Agreement and the Related Documents shall not conflict with, result
in any breach of any of the terms and provisions of or constitute (with or
without notice, lapse of time or both) a default under, the certificate of
incorporation or bylaws of CFC, or any indenture, agreement, mortgage, deed
of trust or other instrument to which CFC is a party or by which it is
bound, or result in the creation or imposition of any lien upon any of its
properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, other than this Agreement and
the Pooling and Servicing Agreement, or violate any law, order, rule or
regulation applicable to CFC of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over CFC or any of its properties.
(g) No Proceedings. There are no proceedings or investigations pending
or, to CFC's knowledge, threatened against CFC, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over CFC or its properties (i)
asserting the invalidity of this Agreement or any of the Related Documents,
(ii) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this Agreement or
any of the Related Documents, (iii) seeking any determination or ruling
that might materially and adversely affect the performance by CFC of its
obligations under, or the validity or enforceability of, this Agreement or
any of the Related Documents or (iv) seeking to affect adversely the
federal income tax or other federal, state or local tax attributes of, or
seeking to impose any excise, franchise, transfer or similar tax upon, the
transfer and acquisition of the Initial Contracts and the Initial
Collateral Security hereunder or under the Pooling and Servicing Agreement.
(h) Chief Executive Office. The chief executive office of CFC is
located at 1100 Landmark Towers, 345 St. Peter Street, Saint Paul, MN
55102-1639.
SECTION 3.2. Representations and Warranties of CFSC. CFSC makes the
following representations and warranties, on which CFC relies in selling,
assigning, transferring and conveying the Initial Contracts and the Initial
Collateral Security to CFSC hereunder. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Initial Contracts and the Initial Collateral Security
hereunder and the sale, transfer and assignment thereof by CFSC to the Trust
under the Pooling and Servicing Agreement.
(a) Organization and Good Standing. CFSC has been duly organized and
is validly existing and in good standing as a corporation under the laws of
the State of Minnesota, with the power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and has,
full power, authority and legal right to acquire and own the Initial
Contracts and the Initial Collateral Security and to transfer the Initial
Contracts and the Initial Collateral Security to the Trust pursuant to the
Pooling and Servicing Agreement.
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(b) Due Qualification. CFSC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so
would materially and adversely affect (i) CFSC's ability to acquire the
Initial Contracts or the Initial Collateral Security, (ii) the validity or
enforceability of the Initial Contracts and the Initial Collateral Security
or (iii) CFSC's ability to perform its obligations hereunder and under the
Related Documents.
(c) Power and Authority. CFSC has the power, authority and legal right
to execute and deliver this Agreement and its Related Documents and to
carry out the terms hereof and thereof and to acquire the Initial Contracts
and the Initial Collateral Security hereunder; and the execution, delivery
and performance of this Agreement and its Related Documents and all of the
documents required pursuant hereto or thereto have been duly authorized by
CFSC by all necessary action.
(d) No Consent Required. CFSC is not required to obtain the consent of
any other Person, or any consent, license, approval or authorization or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery or performance of this
Agreement and the Related Documents, except for such as have been obtained,
effected or made.
(e) Binding Obligation. This Agreement and each of its Related
Documents constitutes a legal, valid and binding obligation of CFSC,
enforceable against CFSC in accordance with its terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation and other similar laws and to
general equitable principles.
(f) No Violation. The execution, delivery and performance by CFSC of
this Agreement, the consummation of the transactions contemplated by this
Agreement and the Related Documents and the fulfillment of the terms of
this Agreement and the Related Documents do not and will not conflict with,
result in any breach of any of the terms and provisions of or constitute
(with or without notice or lapse of time) a default under the articles of
incorporation or bylaws of CFSC, or conflict with or breach any of the
terms or provisions of, or constitute (with or without notice or lapse of
time) a default under, any indenture, agreement, mortgage, deed of trust or
other instrument to which CFSC is a party or by which CFSC is bound or to
which any of its properties are subject, or result in the creation or
imposition of any lien upon any of its properties pursuant to the terms of
any such indenture, agreement, mortgage, deed of trust or other instrument
(other than the Pooling and Servicing Agreement), or violate any law,
order, rule or regulation, applicable to CFSC or its properties, of any
federal or state regulatory body or any court, administrative agency, or
other governmental instrumentality having jurisdiction over CFSC or any of
its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of CFSC, threatened against CFSC, before any
court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over CFSC or its
properties: (i) asserting the invalidity of this Agreement or any of the
Related Documents, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the Related
Documents, (iii) seeking any determination or ruling that might
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materially and adversely affect the performance by CFSC of its obligations
under, or the validity or enforceability of, this Agreement or any of the
Related Documents or (iv) that may adversely affect the federal or state
income tax attributes of, or seeking to impose any excise, franchise,
transfer or similar tax upon, the transfer and acquisition of the Initial
Contracts and the Initial Collateral Security hereunder or the transfer of
the Initial Contracts and the Initial Collateral Security to the Trust
pursuant to the Pooling and Servicing Agreement.
In the event of any breach of a representation and warranty made by CFSC
hereunder, CFC covenants and agrees that it will not take any action to pursue
any remedy that it may have hereunder, in law, in equity or otherwise, until a
year and a day have passed since the later of (i) the date on which all
pass-through certificates or other similar securities issued by the Trust, or a
trust or similar vehicle formed by CFSC, have been paid in full, or (ii) all
Certificates or other similar securities issued by the Trust, or a trust or
similar vehicle formed by CFSC, have been paid in full. CFC and CFSC agree that
damages will not be an adequate remedy for such breach and that this covenant
may be specifically enforced by CFSC or by the Trustee on behalf of the Trust.
ARTICLE IV
COVENANTS OF CFC
SECTION 4.1. Transfer of Contracts. On or before the Closing Date, CFC
shall deliver the Land-and-Home Contract files to the Trustee. CFC has filed a
form UCC-1 financing statement regarding the sale of the Contracts to CFSC, and
shall file continuation statements in respect of such UCC-1 financing statement
as if such financing statement were necessary to perfect such sale. CFC shall
take any other actions necessary to maintain the perfection of the sale of the
Contracts to CFSC.
SECTION 4.2. Costs and Expenses. CFC shall pay all reasonable costs and
disbursements in connection with the performance of its obligations hereunder
and under each Subsequent Transfer Agreement and its Related Documents.
SECTION 4.3. Indemnification.
(a) CFC will defend and indemnify CFSC against any and all costs,
expenses, losses, damages, claims, and liabilities, including reasonable
fees and expenses of counsel and expenses of litigation, arising out of or
resulting from any breach of any of CFC's representations and warranties
contained herein or in any Subsequent Transfer Agreement. Notwithstanding
any other provision of this Agreement, the obligation of CFC under this
Section 4.3 shall not terminate upon a Service Transfer pursuant to Article
VII of the Pooling and Servicing Agreement, except that the obligation of
CFC under this Section 4.3 shall not relate to the actions of any
subsequent Servicer after a Service Transfer.
(b) No obligation or liability to any Obligor under any of the
Contracts is intended to be assumed by CFSC under or as a result of this
Agreement and the transactions contemplated hereby and, to the maximum
extent permitted and valid under mandatory provisions of law, CFSC
expressly disclaims such assumption.
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(c) CFC agrees to pay, and to indemnify, defend and hold harmless CFSC
from any taxes which may at any time be asserted with respect to, and as of
the date of, the transfer of the Contracts to CFSC including, without
limitation, any sales, gross receipts, general corporation, personal
property and costs, expenses and reasonable counsel fees in defending
against the same, whether arising by reason of the acts to be performed by
CFC under this Agreement or imposed against CFSC.
(d) Indemnification under this Section 4.3 shall include, without
limitation, reasonable fees and expenses of counsel and expenses of
litigation. If the Originator has made any indemnity payments to CFSC
pursuant to this Section and CFSC thereafter collects any of such amounts
from others, CFSC will repay such amounts collected to CFC, as the case may
be, without interest.
SECTION 4.4. Financial Statement Disclosure. CFC's financial statements
will disclose that the Subsequent Contracts have been transferred by CFC to
CFSC, and by CFSC to the Trust, and are not available to satisfy claims of CFC's
creditors.
SECTION 4.5. Staged-Funding Contracts. The purchase price described in
Section 2.2 includes the amount by which the aggregate Cut-off Date Principal
Balances of the Staged-Funding Contracts exceeds their principal balance as of
the Closing Date. CFC agrees to use its best efforts (consistent with prudent
lending practices) to cause each Staged-Funding Contract to be fully disbursed
on or before the Funding Termination Date. CFC acknowledges its obligations with
respect to the Staged-Funding Contracts under Section 3.06(c) and 3.08 of the
Pooling and Servicing Agreement.
ARTICLE V
REPURCHASES
SECTION 5.1. Repurchase of Contracts Upon Breach of Warranty.
(a) Upon the occurrence of a Repurchase Event, CFC shall, unless such
breach shall have been cured in all material respects, repurchase such
Contract from the Trust pursuant to Section 3.06 of the Pooling and
Servicing Agreement, subject to the limitation of Section 3.07 of the
Pooling and Servicing Agreement. It is understood and agreed that the
obligation of CFC to repurchase any Contract as to which a breach has
occurred and is continuing shall, if such obligation is fulfilled,
constitute the sole remedy against CFC for such breach available to CFSC,
the Certificateholders or the Trustee on behalf of Certificateholders. The
provisions of this Section 5.1 are intended to grant the Trustee a direct
right against CFC to demand performance hereunder, and in connection
therewith, CFC waives any requirement of prior demand against CFSC with
respect to such repurchase obligation. Any such purchase shall take place
in the manner specified in Section 3.06 of the Pooling and Servicing
Agreement. Notwithstanding any other provision of this Agreement, any
Subsequent Transfer Agreement or the Pooling and Servicing Agreement to the
contrary, the obligation of CFC under this Section shall not terminate upon
a termination of CFC as Servicer under the Pooling and Servicing Agreement
and shall be performed in accordance with the terms hereof notwithstanding
the failure of the Servicer or CFSC to perform any of their respective
obligations with respect to such Contract under the Pooling and Servicing
Agreement.
10
<PAGE>
(b) In lieu of repurchasing a Contract when required by Section 5.1(a)
of this Agreement and Section 3.06(a) of the Pooling and Servicing
Agreement, CFC may deliver an Eligible Substitute Contract pursuant to the
provisions of Section 3.06(b) of the Pooling and Servicing Agreement.
(c) In addition to the foregoing and notwithstanding whether the
related Contract shall have been purchased by CFC, CFC shall indemnify the
Trustee, the Trust and the Certificateholders against all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel, which may be asserted against or incurred by any of
them as a result of third party claims arising out of the events or facts
giving rise to such Repurchase Events.
SECTION 5.2. Reassignment of Purchased Contracts. Upon deposit of the
Repurchase Price of any Contract repurchased or replaced by CFC under Section
5.1, CFSC shall cause the Trustee to take such steps as may be reasonably
requested by CFC in order to assign to CFC all of CFSC's and the Trust's right,
title and interest in and to such Contract and all security and documents and
all Collateral Security conveyed to CFSC and the Trust directly relating
thereto, without recourse, representation or warranty, except as to the absence
of liens, charges or encumbrances created by or arising as a result of actions
of CFSC or the Trustee. Such assignment shall be a sale and assignment outright,
and not for security. If, following the reassignment of a Contract, in any
enforcement suit or legal proceeding, it is held that CFC may not enforce any
such Contract on the ground that it shall not be a real party in interest or a
holder entitled to enforce the Contract, CFSC and the Trustee shall, at the
expense of CFC, take such steps as CFC deems reasonably necessary to enforce the
Contract, including bringing suit in CFSC's or the Trustee's name.
SECTION 5.3. Waivers. No failure or delay on the part of CFSC, or the
Trustee as assignee of CFSC, in exercising any power, right or remedy under this
Agreement or under any Subsequent Transfer Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
remedy preclude any other or future exercise thereof or the exercise of any
other power, right or remedy.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Liability of CFC. CFC shall be liable in accordance herewith
only to the extent of the obligations in this Agreement or in any Subsequent
Transfer Agreement specifically undertaken by CFC and the representations and
warranties of CFC.
SECTION 6.2. Merger or Consolidation of CFC or CFSC. Any corporation or
other entity (i) into which CFC or CFSC may be merged or consolidated, (ii)
resulting from any merger or consolidation to which CFC or CFSC is a party or
(iii) succeeding to the business of CFC or CFSC, in the case of CFSC, which
corporation has articles of incorporation containing provisions relating to
limitations on business and other matters substantively identical to those
contained in CFSC's articles of incorporation, shall execute an agreement of
assumption to perform every obligation of CFC or CFSC, as the case may be, under
this Agreement and each Subsequent Transfer Agreement and, whether or not such
assumption agreement is executed,
11
<PAGE>
shall be the successor to CFC or CFSC, as the case may be, hereunder and under
each such Subsequent Transfer Agreement (without relieving CFC or CFSC of its
responsibilities hereunder, if it survives such merger or consolidation) without
the execution or filing of any document or any further act by any of the parties
to this Agreement or each Subsequent Transfer Agreement. CFC or CFSC shall
promptly inform the other party and the Trustee of such merger, consolidation or
purchase and assumption. Notwithstanding the foregoing, as a condition to the
consummation of the transactions referred to in clauses (i), (ii) and (iii)
above, (x) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Sections 3.1 and 3.2 of this
Agreement, or similar representation or warranty made in any Subsequent Transfer
Agreement, shall have been breached (for purposes hereof, such representations
and warranties shall speak as of the date of the consummation of such
transaction), (y) CFC or CFSC, as applicable, shall have delivered written
notice of such consolidation, merger or purchase and assumption to the relevant
rating agencies prior to the consummation of such transaction and shall have
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel each
stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section 6.2 and that all conditions precedent, if
any, provided for in this Agreement, or in each Subsequent Transfer Agreement,
relating to such transaction have been complied with, and (z) CFC or CFSC, as
applicable, shall have delivered to the Trustee an Opinion of Counsel, stating
that, in the opinion of such counsel, either (A) all financing statements and
continuation statements and amendments thereto have been executed and filed that
are necessary to preserve and protect the interest of the Trustee in the Trust
Property and reciting the details of the filings or (B) no such action shall be
necessary to preserve and protect such interest.
SECTION 6.3. Limitation on Liability of CFC and Others. CFC shall not be
under any obligation to appear in, prosecute or defend any legal action that is
not incidental to its obligations under this Agreement, any Subsequent Transfer
Agreement or its Related Documents and that in its opinion may involve it in any
expense or liability.
SECTION 6.4. Amendment.
(a) This Agreement and any Subsequent Transfer Agreement may be
amended by CFC and CFSC and without the consent of the Trustee or any of
the Certificateholders (A) to cure any ambiguity or (B) to correct any
provisions in this Agreement or any such Subsequent Transfer Agreement;
provided, however, that such action shall not, as evidenced by an Opinion
of Counsel delivered to the Trustee, adversely affect in any material
respect the interests of any Noteholder.
(b) This Agreement may also be amended from time to time by CFC and
CFSC, with the prior written consent of the Trustee and the Holders of
Certificates of each Class affected thereby evidencing, as to each such
Class, Percentage Interests aggregating 51% or more for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement, or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall
(i) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on the Contracts or distributions
that are required to be made on any Certificate or (ii) reduce the
aforesaid
12
<PAGE>
percentage required to consent to any such amendment or any waiver
hereunder, without the consent of the Holders of all Certificates then
outstanding.
(c) This Agreement shall not be amended under this Section without the
consent of 100% of the Certificateholders and the Class C
Certificateholders if such amendment would result in the disqualification
of the Trust as a REMIC under the Code.
(d) Concurrently with the solicitation of any consent pursuant to this
Section 6.4, CFSC shall furnish written notification to the Rating
Agencies. Promptly after the execution of any amendment or consent pursuant
to this Section 6.4, CFSC shall furnish written notification of the
substance of such amendment to the Ratings Agencies, each Certificateholder
and the Class C Certificateholders.
(e) It shall not be necessary for the consent of Certificateholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Trustee may
prescribe, including the establishment of record dates. The consent of any
Holder of a Certificate given pursuant to this Section or pursuant to any
other provision of this Agreement shall be conclusive and binding on such
Holder and on all future Holders of such Certificate and of any Certificate
issued upon the transfer thereof or in exchange thereof or in lieu thereof
whether or not notation of such consent is made upon the Certificate.
SECTION 6.5. Notices. All demands, notices and communications to CFC or
CFSC hereunder shall be in writing, personally delivered, or sent by telecopier
(subsequently confirmed in writing), reputable overnight courier or mailed by
certified mail, return receipt requested, and shall be deemed to have been given
upon receipt (a) in the case of CFC, to Conseco Finance Corp., 1100 Landmark
Towers, 345 St. Peter Street, Saint Paul, Minnesota 55102-1639, Attention: Chief
Financial Officer, or such other address as shall be designated by CFC in a
written notice delivered to the other party or (b) in case of CFSC, to Conseco
Finance Securitizations Corp., 300 Landmark Towers, 345 St. Peter Street, Saint
Paul, Minnesota 55102-1639, Attention: Chief Financial Officer or to such other
address of which notice shall have been given in accordance with this Section
6.5.
SECTION 6.6. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and the Related Documents set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and the
Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 6.7. Severability of Provisions. If any one or more of the
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
13
<PAGE>
SECTION 6.8. Intention of the Parties. The execution and delivery of this
Agreement and of each Subsequent Transfer Agreement shall constitute an
acknowledgment by CFC and CFSC that they intend that each assignment and
transfer herein and therein contemplated constitute a sale and assignment
outright, and not for security, of the Initial Contracts and the Initial
Collateral Security and the Subsequent Contracts and Subsequent Collateral
Security, as the case may be, conveying good title thereto free and clear of any
liens, from CFC to CFSC, and that the Initial Contracts and the Initial
Collateral Security and the Subsequent Contracts and Subsequent Collateral
Security shall not be a part of CFC's estate in the event of the bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, or the
occurrence of another similar event, of, or with respect to, CFC. In the event
that such conveyance is determined to be made as security for a Contract made by
CFSC, the Trust or the Certificateholders to CFC, the parties intend that this
Agreement and each Subsequent Transfer Agreement shall constitute a security
agreement under applicable law and that CFC shall have granted to CFSC a
security interest in all of CFC's right, title and interest in and to (i) the
Contracts, including the Collateral Security and all rights to receive payments
on or with respect to the Contracts (other than principal and interest due on
the Contracts on or before the applicable Cut-off Date), (ii) all rights under
every Hazard Insurance Policy relating to a Manufactured Home securing a
Contract for the benefit of the creditor of such Contract, (iii) all rights
under all FHA/VA Regulations pertaining to any Contract that is an FHA/VA
Contract, (iv) the proceeds from the Errors and Omissions Protection Policy and
all rights under any blanket hazard insurance policy to the extent they relate
to a Manufactured Home securing a Contract, (v) all documents contained in the
Contract Files and the Land-and-Home Contract Files, (vi) $8,308,281.36 paid by
the underwriters of the Certificates to the Trustee by order of the Seller out
of the proceeds of the sale of the Certificates (which such underwriters shall,
by order of the Trust, remit directly to the Seller pursuant to Section
2.01(c)), (vii) amounts on deposit in the Capitalized Interest Account, (viii)
amounts on deposit in the Pre-Funding Account and (ix) all proceeds and products
in any way derived from any of the foregoing.
SECTION 6.9. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Minnesota without regard to the principles of
conflicts of laws thereof, and the obligations, rights and remedies of the
parties under this Agreement shall be determined in accordance with such laws.
SECTION 6.10. Counterparts. For the purpose of facilitating the execution
of this Agreement and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and all of which counterparts shall constitute but
one and the same instrument.
SECTION 6.11. Conveyance of the Initial Contracts and the Initial
Collateral Security to the Trust. CFC acknowledges that CFSC intends, pursuant
to the Pooling and Servicing Agreement, to convey the Initial Contracts and the
Initial Collateral Security, together with its rights under this Agreement, to
the Trust on the date hereof. CFC acknowledges and consents to such conveyance
and waives any further notice thereof and covenants and agrees that the
representations and warranties of CFC contained in this Agreement and the rights
of CFSC hereunder are intended to benefit the Trustee, the Trust, and the
Certificateholders. In furtherance of the foregoing, CFC covenants and agrees to
perform its duties and obligations
14
<PAGE>
hereunder, in accordance with the terms hereof for the benefit of the Trustee,
the Trust, and the Certificateholders and that, notwithstanding anything to the
contrary in this Agreement, CFC shall be directly liable to the Trustee and the
Trust (notwithstanding any failure by the Servicer or CFSC to perform its duties
and obligations hereunder or under the Pooling and Servicing Agreement) and that
the Trustee may enforce the duties and obligations of CFC under this Agreement
against CFC for the benefit of the Trust and the Certificateholders.
SECTION 6.12. Nonpetition Covenant. Neither CFSC nor CFC shall petition or
otherwise invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Trust (or, in the case of
CFC, against CFSC) under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust (or CFSC) or any substantial
part of its property, or ordering the winding up or liquidation of the affairs
of the Trust (or CFSC).
15
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Transfer Agreement to be
duly executed by their respective officers as of the 5th day of October, 2000.
CONSECO FINANCE SECURITIZATIONS CORP.,
as Purchaser
By
---------------------------------------
Name: Phyllis A. Knight
Title: Senior Vice President and
Treasurer
CONSECO FINANCE CORP.,
as Seller
By
---------------------------------------
Name: Phyllis A. Knight
Title: Senior Vice President and
Treasurer
16
<PAGE>
SCHEDULE A
SCHEDULE OF INITIAL CONTRACTS
For list of initial contracts, see certified list of contracts delivered
under Section 2.02(a) of the Pooling and Servicing Agreement.
A-1
<PAGE>
EXHIBIT A
FORM OF
SUBSEQUENT TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
CONSECO FINANCE CORP.
Seller
dated as of
--------, -----
<PAGE>
SUBSEQUENT TRANSFER AGREEMENT, dated as of ____________, _____, between
Conseco Finance Securitizations Corp., a Minnesota corporation, as purchaser
("CFSC"), and Conseco Finance Corp., a Delaware corporation, as seller ("CFC"),
pursuant to the Transfer Agreement, dated as of October 1, 2000, between CFSC
and CFC.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, CFC and CFSC are parties to a Transfer Agreement, dated as of
October 1, 2000 (as amended or supplemented, the "Transfer Agreement");
WHEREAS, pursuant to the Transfer Agreement and this Agreement, CFSC has
agreed to purchase from CFC and CFC is transferring to CFSC the Subsequent
Contracts and the Subsequent Collateral Security.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter contained, and for other good and valuable consideration, the
receipt of which is acknowledged, CFSC and CFC, intending to be legally bound,
hereby agree as follows:
1. Defined Terms. Capitalized terms used but not otherwise defined herein
shall have the respective meanings assigned to such terms in the Transfer
Agreement.
"Agreement" means this Subsequent Transfer Agreement and all
amendments hereof and supplements hereto.
"Schedule of Subsequent Contracts" means the schedule of all
manufactured housing contracts sold and transferred pursuant to this
Agreement attached hereto as Schedule A, which Schedule of Subsequent
Contracts shall supplement the Schedule of Initial Contracts attached to
the Transfer Agreement.
"Subsequent Contracts" means, for purposes of this Agreement, the
manufactured housing installment sales contracts and installment loan
agreements listed on the Schedule of Subsequent Contracts attached hereto
as Schedule A, including related security interests and all rights to
receive payments on or with respect thereto (other than principal and
interest due on or before the Subsequent Cut-off Date).
"Subsequent Cut-off Date" means, with respect to the Subsequent
Contracts conveyed hereby, ____________, _________.
"Subsequent Transfer Date" means the date of this Agreement.
2. Conveyance of the Subsequent Contracts and Subsequent Collateral
Security. Subject to the terms and conditions of this Agreement and the Transfer
Agreement, CFC hereby sells, transfers, assigns, and otherwise conveys to CFSC
without recourse (but without limitation of its obligations in this Agreement
and the Transfer Agreement), and CFSC hereby purchases, all right, title and
interest of CFC in and to the Subsequent Contracts and the Subsequent Collateral
Security, including (i) all rights to receive payments on or with respect to the
Subsequent Contracts (other than principal and interest due on the Subsequent
Contracts on or
Ex. A-1
<PAGE>
before the Subsequent Cut-off Date), (ii) all rights under every Hazard
Insurance Policy relating to a Manufactured Home securing a Subsequent Contract
for the benefit of the creditor of such Subsequent Contract, (iii) all rights
under all FHA/VA Regulations pertaining to any Subsequent Contract that is an
FHA/VA Contract, (iv) the proceeds from the Errors and Omissions Protection
Policy and all rights under any blanket hazard insurance policy to the extent
they relate to the Manufactured Homes, (v) all documents contained in the
Contract Files and the Land-and-Home Contract Files relating to the Subsequent
Contracts, and (vi) all proceeds and products of the foregoing. It is the
intention of CFC and CFSC that the transfer and assignment contemplated by this
Agreement shall constitute a sale of the Subsequent Contracts and the Collateral
Security from CFC to CFSC, conveying good title thereto free and clear of any
liens, and the Subsequent Contracts and the Collateral Security shall not be
part of CFC's estate in the event of the filing of a bankruptcy petition by or
against CFC under any bankruptcy or similar law. CFC's financial statements will
disclose that the Subsequent Contracts have been transferred by CFC to CFSC, and
by CFSC to the Trust, and are not available to satisfy claims of CFC's
creditors.
3. Purchase Price. Simultaneously with the conveyance of the Subsequent
Contracts and the Subsequent Collateral Security to CFSC, CFSC has paid or
caused to be paid to or upon the order of CFC, by wire transfer of immediately
available funds (representing certain proceeds to CFSC from the sale of the
Certificates on deposit in the Pre-Funding Account), the amount of funds as
specified below:
(i) Principal Balance of Subsequent Contracts: $________
(ii) Proceeds to CFC: $________
4. Representations and Warranties of CFC. CFC makes the following
representations and warranties, on which CFSC relies in purchasing the
Subsequent Contracts and the Subsequent Collateral Security and in transferring
the Subsequent Contracts and the Subsequent Collateral Security to the Trustee.
Such representations are made as of the execution and delivery of this
Agreement, but shall survive the sale, transfer and assignment of the Subsequent
Contracts and the Subsequent Collateral Security hereunder, and the sale,
transfer and assignment thereof by CFSC to the Trustee. CFC and CFSC agree that
CFSC will assign to the Trustee all of CFSC's rights under this Agreement, and
that the Trustee will thereafter be entitled to enforce this Agreement against
CFC in the Trust's own name.
(a) Schedule of Representations. The representations and warranties
set forth in Sections 3.02, 3.04 and 3.05 of the Pooling and Servicing
Agreement are true and correct.
(b) Organization and Good Standing. CFC has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and now
has, power, authority and legal right to acquire, own and sell the
Subsequent Contracts and the Collateral Security transferred to CFSC.
Ex. A-2
<PAGE>
(c) Due Qualification. CFC is duly qualified to do business as a
foreign corporation and is in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification.
(d) Power and Authority. CFC has the power and authority to execute
and deliver this Agreement and to carry out its terms; CFC has full power
and authority to sell and assign the Subsequent Contracts and the
Subsequent Collateral Security to be sold and assigned to and deposited
with CFSC hereunder and has duly authorized such sale and assignment to
CFSC by all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by CFC by all
necessary corporate action.
(e) Valid Sale; Binding Obligations. This Agreement has been duly
executed and delivered, shall effect a valid sale, transfer and assignment
of the Subsequent Contracts and the Collateral Security, enforceable
against CFC and creditors of and purchasers from CFC; and this Agreement
constitutes the legal, valid and binding obligations of CFC enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on
the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(f) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms of this Agreement shall not
conflict with, result in any breach of any of the terms and provisions of
or constitute (with or without notice, lapse of time or both) a default
under, the certificate of incorporation or bylaws of CFC, or any indenture,
agreement, mortgage, deed of trust or other instrument to which CFC is a
party or by which it is bound, or result in the creation or imposition of
any lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument, other
than this Agreement and the Transfer Agreement, or violate any law, order,
rule or regulation applicable to CFC of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over CFC or any of its properties.
(g) No Proceedings. There are no proceedings or investigations pending
or, to CFC's knowledge, threatened against CFC, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over CFC or its properties (i)
asserting the invalidity of this Agreement, (ii) seeking to prevent or the
consummation of any of the transactions contemplated by this Agreement,
(iii) seeking any determination or ruling that might materially and
adversely affect the performance by CFC of its obligations under, or the
validity or enforceability of, this Agreement, or (iv) seeking to affect
adversely the federal income tax or other federal, state or local tax
attributes of, or seeking to impose any excise, franchise, transfer or
similar tax upon, the transfer and acquisition of the Subsequent Contracts
and the Collateral Security hereunder.
(h) Insolvency. As of the Subsequent Cut-off Date and the Subsequent
Transfer Date, neither CFC nor CFSC is insolvent nor will either of them
have been made insolvent after giving effect to the conveyance set forth in
Section 2 of this Agreement, nor are any of them aware of any pending
insolvency.
Ex. A-3
<PAGE>
(i) Chief Executive Office. The chief executive office of CFC is
located at 1100 Landmark Towers, 345 St. Peter Street, Saint Paul,
Minnesota 55102-1639.
5. Representations and Warranties of CFSC. CFSC makes the following
representations and warranties, on which CFC relies in selling, assigning,
transferring and conveying the Subsequent Contracts and the Subsequent
Collateral Security to CFSC hereunder. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Subsequent Contracts and the Subsequent Collateral
Security hereunder.
(a) Organization and Good Standing. CFSC has been duly organized and
is validly existing and in good standing as a corporation under the laws of
the State of Minnesota, with the power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and has,
full power, authority and legal right to acquire and own the Subsequent
Contracts and the Subsequent Collateral Security, and to transfer the
Subsequent Contracts and the Subsequent Collateral Security to the Trustee
pursuant to this Agreement.
(b) Due Qualification. CFSC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so
would materially and adversely affect CFSC's ability to acquire the
Subsequent Contracts or the Subsequent Collateral Security or the validity
or enforceability of the Subsequent Contracts and the Subsequent Collateral
Security or to perform CFSC's obligations hereunder.
(c) Power and Authority. CFSC has the power, authority and legal right
to execute and deliver this Agreement and to carry out the terms hereof and
to acquire the Subsequent Contracts and the Subsequent Collateral Security
hereunder; and the execution, delivery and performance of this Agreement
and all of the documents required pursuant hereto have been duly authorized
by CFSC by all necessary action.
(d) No Consent Required. CFSC is not required to obtain the consent of
any other Person, or any consent, license, approval or authorization or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery or performance of this
Agreement, except for such as have been obtained, effected or made.
(e) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of CFSC, enforceable against CFSC in accordance with its
terms, subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other
similar laws and to general equitable principles.
(f) No Violation. The execution, delivery and performance by CFSC of
this Agreement, the consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not and
will not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a
default under, the articles of incorporation or bylaws of CFSC, or conflict
with or breach any of the terms or provisions of, or constitute (with or
without notice or lapse of time) a default under,
Ex. A-4
<PAGE>
any indenture, agreement, mortgage, deed of trust or other instrument to
which CFSC is a party or by which CFSC is bound or to which any of its
properties are subject, or result in the creation or imposition of any lien
upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument (other than the
Pooling and Servicing Agreement and the Subsequent Transfer Instrument), or
violate any law, order, rule or regulation, applicable to CFSC or its
properties, of any federal or state regulatory body, any court,
administrative agency, or other governmental instrumentality having
jurisdiction over CFSC or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of CFSC, threatened against CFSC, before any
court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over CFSC or its
properties: (i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement, (iii) seeking any determination or ruling that might materially
and adversely affect the performance by CFSC of its obligations under, or
the validity or enforceability of, this Agreement, or (iv) that may
adversely affect the federal or state income tax attributes of, or seeking
to impose any excise, franchise, transfer or similar tax upon, the transfer
and acquisition of the Subsequent Contracts and the Collateral Security to
the Trust.
In the event of any breach of a representation and warranty made by CFSC
hereunder, CFC covenants and agrees that it will not take any action to pursue
any remedy that it may have hereunder, in law, in equity or otherwise, until a
year and a day have passed since the date on which all pass-through certificates
or other similar securities issued by the Trust, or a trust or similar vehicle
formed by CFSC, have been paid in full. CFC and CFSC agree that damages will not
be an adequate remedy for such breach and that this covenant may be specifically
enforced by CFSC or by the Trustee on behalf of the Trust.
6. Conditions Precedent. The obligation of CFSC to acquire the Subsequent
Contracts and the Subsequent Collateral Security hereunder is subject to the
satisfaction, on or prior to the Subsequent Transfer Date, of the following
conditions precedent, and CFC hereby confirms that each such condition is
satisfied:
(a) Representations and Warranties. Each of the representations and
warranties made by CFC in Section 4 of this Agreement and in Section 3.1 of
the Transfer Agreement is true and correct as of the date of this Agreement
and as of the Subsequent Transfer Date.
(b) Transfer Agreement Conditions. Each of the conditions set forth in
Section 2.3(b) of the Transfer Agreement applicable to the conveyance of
Subsequent Contracts and the Subsequent Collateral Security has been
satisfied.
(c) Additional Information. CFC has delivered to CFSC such information
as was reasonably requested by CFSC to satisfy itself as to (i) the
accuracy of the representations and warranties set forth in Section 4 of
this Agreement and in Section 3.1 of the Transfer Agreement and (ii) the
satisfaction of the conditions set forth in this Section 6.
Ex. A-5
<PAGE>
7. Ratification of Transfer Agreement. As supplemented by this Agreement,
the Transfer Agreement is in all respects ratified and confirmed and the
Transfer Agreement as so supplemented by this Agreement shall be read, taken and
construed as one and the same instrument.
8. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of Minnesota without regard to the principles of conflicts of
laws thereof, and the obligations, rights and remedies of the parties under this
Agreement shall be determined in accordance with such laws.
9. Counterparts. For the purposes of facilitating the execution of this
Agreement and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and all of which counterparts shall constitute but one and the same
instrument.
10. Conveyance of the Subsequent Contracts and the Collateral Security to
the Trust. CFC acknowledges that CFSC intends, pursuant to a Subsequent Transfer
Instrument, to convey the Subsequent Contracts and the Subsequent Collateral
Security, together with its rights under this Agreement and under the Transfer
Agreement, to the Trustee on the date hereof. CFC acknowledges and consents to
such conveyance and waives any further notice thereof and covenants and agrees
that the representations and warranties of CFC contained in this Agreement and
the rights of CFSC hereunder and thereunder are intended to benefit Trustee, the
Trust and the Certificateholders. In furtherance of the foregoing, CFC covenants
and agrees to perform its duties and obligations hereunder and under this
Agreement and the Transfer Agreement, in accordance with the terms hereof and
thereof for the benefit of the Trustee, the Trust and the Certificateholders and
that, notwithstanding anything to the contrary in this Agreement or in the
Transfer Agreement, CFC shall be directly liable to the Trustee and the Trust
(notwithstanding any failure by CFSC to perform its duties and obligations
hereunder or under the Pooling and Servicing Agreement or the Transfer
Agreement) and that the Trustee may enforce the duties and obligations of CFC
under this Agreement and the Transfer Agreement against CFC for the benefit of
the Trust and the Certificateholders.
Ex. A-6
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
CONSECO FINANCE SECURITIZATIONS CORP.,
as Purchaser
By
--------------------------------------
Name: Phyllis A. Knight
Title: Senior Vice President and
Treasurer
CONSECO FINANCE CORP.,
as Seller
By
--------------------------------------
Name: Phyllis A. Knight
Title: Senior Vice President and
Treasurer
Ex. A-7
