<PAGE>
Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificates, Series 2000-6
TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
CONSECO FINANCE CORP.
Seller
dated as of
December 1, 2000
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TABLE OF CONTENTS
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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 CONTRACT 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.............................................. 5
SECTION 3.1. Representations and Warranties of Conseco Finance................... 5
SECTION 3.2. Representations and Warranties of CFSC.............................. 7
ARTICLE IV COVENANTS OF CONSECO FINANCE................................................ 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
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 Conseco Finance........................................ 11
SECTION 6.2. Merger or Consolidation of Conseco Finance or CFSC.................. 11
SECTION 6.3. Limitation on Liability of Conseco Finance 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
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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
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TRANSFER AGREEMENT
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THIS TRANSFER AGREEMENT, dated as of December 1, 2000, executed
between Conseco Finance Securitizations Corp., a Minnesota corporation, as
purchaser ("CFSC"), and Conseco Finance Corp., a Delaware corporation, as seller
("Conseco Finance").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, CFSC has agreed to purchase from Conseco Finance and Conseco
Finance, pursuant to this Agreement, is transferring to CFSC certain
manufactured housing contracts specified in the Schedule of Initial Contracts
attached hereto as Schedule A (the "Initial Contracts"); and
WHEREAS, CFSC has agreed to purchase from Conseco Finance and Conseco
Finance has agreed to transfer to CFSC the Subsequent Contracts and Subsequent
Collateral Security in an amount set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, CFSC and Conseco Finance, intending to be
legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. General. The specific terms defined in this Article
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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 August 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,
Series 2000-4 (the "Trust").
SECTION 1.2. Specific Terms. Whenever used in this Agreement, the
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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 December 28, 2000.
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"Collateral Security" means the Initial Collateral Security conveyed
-------------------
by Conseco Finance to CFSC pursuant to this Agreement together with any and all
Subsequent Collateral Security conveyed by Conseco Finance to CFSC pursuant to
each Subsequent Transfer Agreement.
"Initial Contracts" means the Contracts listed on the Schedule of
-----------------
Initial Contracts attached hereto as Schedule A.
"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.
"Other Conveyed Property" means the Initial Other Conveyed Property
-----------------------
conveyed by Conseco Finance to CFSC pursuant to this Agreement together with any
and all Subsequent Other Conveyed Property conveyed by Conseco Finance to CFSC
pursuant to each Subsequent Purchase Agreement.
"Pooling and Servicing Agreement" means the Pooling and Servicing
-------------------------------
Agreement, dated as of December 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 Conseco Finance, 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 Conseco
----------------
Finance's representations and warranties hereunder or under any Subsequent
Purchase Agreement or any other event which requires the repurchase of a
Contract by Conseco Finance under the Pooling and Servicing Agreement.
"Schedule of Initial Contracts" means the schedule of all Contracts
-----------------------------
sold and transferred pursuant to this Agreement which is attached hereto as
Schedule A.
"Schedule of Contracts" means the Schedule of Initial Contracts
---------------------
attached hereto as Schedule A as supplemented by each Schedule of Subsequent
Contracts attached to each Subsequent Purchase Agreement as Schedule A.
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"Schedule of Subsequent Contracts" means the schedule of all Contracts
--------------------------------
sold and transferred pursuant to a Subsequent Purchase Agreement which is
attached to such Subsequent Purchase Agreement as Schedule A, which Schedule of
Subsequent Contracts shall supplement the Schedule of Initial Contracts.
"Subsequent Contracts" means the Contracts specified in the Schedule
--------------------
of Subsequent Contracts attached as Schedule A to each Subsequent Purchase
Agreement.
"Subsequent Collateral Security" means the Subsequent Collateral
------------------------------
Security conveyed by Conseco Finance to CFSC pursuant to each Subsequent
Transfer Agreement.
"Subsequent Transfer Agreement" has the meaning assigned in Section
-----------------------------
2.3(b)(iii).
"Trust" means the trust created by the Trust Agreement, the estate of
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which consists of the Trust Property.
"Trustee means U.S. Bank Trust National Association, a national
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banking association organized and existing under the laws of the United States,
not in its individual capacity but solely as trustee of the Trust, and any
successor trustee appointed and acting pursuant to the Trust Agreement.
"Trust Property" means the property and proceeds of every description
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conveyed by CFSC to the Trust pursuant to the Pooling and Servicing Agreement
and pursuant to any Subsequent Transfer Agreement, together with the Certificate
Accounts (including all Eligible Investments therein and all proceeds
therefrom).
SECTION 1.3. Usage of Terms. With respect to all terms used in this
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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
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Conseco Finance 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
Conseco Finance, or of any predecessor or successor of Conseco Finance.
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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
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Collateral Security. Subject to the terms and conditions of this Agreement,
-------------------
Conseco Finance 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 Conseco Finance in and to the Initial Contracts and the
Initial Collateral Security. It is the intention of Conseco Finance 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 Conseco
Finance 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
Conseco Finance's estate in the event of the filing of a bankruptcy petition by
or against Conseco Finance 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 paid or caused to be paid to or upon the order of Conseco
Finance approximately $423,611,912 by wire transfer of immediately available
funds (representing the proceeds to CFSC from the sale of the Initial Contracts
before (i) deducting expenses incurred by CFSC in connection with such sale and
(ii) depositing the Pre-Funded Amount in the Pre-Funding Account.
SECTION 2.3. Conveyance of Subsequent Contracts and Subsequent
-------------------------------------------------
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 Conseco Finance of an amount equal to the purchase price of
the Subsequent Contracts (as set forth in the related Subsequent Transfer
Agreement), Conseco Finance hereby agrees to sell, transfer, assign, and
otherwise convey to CFSC without recourse (but without limitation of its
obligations in this Agreement and the related Subsequent Purchase Agreement),
and CFSC hereby agrees to purchase all right, title and interest of Conseco
Finance in and to the Subsequent Contracts and the Subsequent Collateral
Security described in the related Subsequent Transfer Agreement.
(b) Conseco Finance 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) Conseco Finance shall have provided the Trustee and the
relevant rating agencies with an Addition Notice at least five Business
Days prior to the Subsequent Transfer Date and shall have provided any
information reasonably requested by the Trustee with respect to the
Subsequent Contracts;
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(ii) Conseco Finance shall have delivered the related Contract
File for each Subsequent Contract to the Trustee at least two Business Days
prior to the Subsequent Transfer Date;
(iii) CFSC shall have delivered to Conseco Finance a duly
executed Subsequent Transfer Agreement substantially in the form of Exhibit
A hereto (the "Subsequent Transfer Agreement"), which shall include a List
of Contracts identifying the related Subsequent Contracts;
(iv) as of each Subsequent Transfer Date, as evidenced by
delivery of the Subsequent Transfer Instrument, that neither Conseco
Finance 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) Conseco Finance shall have delivered to CFSC an Officer's
Certificate substantially in the form attached to the Pooling and Servicing
Agreement as Exhibit E, confirming the satisfaction of each condition
precedent and the representations specified in this Section and in Sections
3.01, 3.02 and 3.04 of the Pooling and Servicing Agreement;
(viii) the Seller and CFSC shall have delivered to the Trustee
Opinions of Counsel addressed to S&P, Moody's, Fitch 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;
(ix) each of the representations and warranties contained in
Section 3.04 of the Pooling and Servicing Agreement shall be true and
correct.
(c) Conseco Finance covenants to transfer to CFSC pursuant to
paragraph (a) above Subsequent Contracts with an aggregate Cut-off Date
Principal Balance approximately equal to $286,498.90; provided, however, that
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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.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of Conseco Finance.
-------------------------------------------------
Conseco Finance 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
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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. Conseco Finance 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 Conseco Finance in the
Trust's own name.
(a) Representations Regarding Contracts. The representations and
-----------------------------------
warranties set forth in Sections 3.02, 3.03 and 3.04 of the Pooling and
Servicing Agreement are true and correct.
(b) Organization and Good Standing. Conseco Finance 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. Conseco Finance 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. Conseco Finance 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; Conseco Finance 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 Conseco Finance's Related Documents have been duly
authorized by Conseco Finance by all necessary corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and Conseco
-------------------------------
Finance'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 Conseco Finance and
creditors of and purchasers from Conseco Finance; and this Agreement and
Conseco Finance's Related Documents constitute legal, valid and binding
obligations of Conseco Finance enforceable in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(f) No Violation. The consummation of the transactions contemplated
------------
by this Agreement and the Related Documents and the fulfillment of the
terms of this Agreement
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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 Conseco Finance, or any indenture, agreement, mortgage, deed of
trust or other instrument to which Conseco Finance 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 Conseco Finance of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over Conseco Finance or any of its
properties.
(g) No Proceedings. There are no proceedings or investigations
--------------
pending or, to Conseco Finance's knowledge, threatened against Conseco
Finance, before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over Conseco
Finance 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 Conseco Finance 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 Conseco
----------------------
Finance 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 Conseco Finance 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
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any of the Related Documents, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or any of the
Related Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by CFSC of its obligations
under, or the validity or enforceability of, this Agreement or any of the
Related Documents or (iv) that may adversely affect the federal or state
income tax attributes of, or seeking to impose any excise, franchise,
transfer or similar tax upon, the transfer and acquisition of the Initial
Contracts and the Initial 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, Conseco Finance 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. Conseco Finance 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 CONSECO FINANCE
SECTION 4.1. Transfer of Contracts. Conseco Finance 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. Conseco Finance
shall take any other actions necessary to maintain the perfection of the sale of
the Contracts to CFSC.
SECTION 4.2. Costs and Expenses. Conseco Finance 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.
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(a) Conseco Finance 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 Conseco Finance's representations and
warranties contained herein or in any Subsequent Purchase Agreement.
Notwithstanding any other provision of this Agreement, the obligation of Conseco
Finance under this Section shall not terminate upon a Service Transfer pursuant
to Article VII of the Pooling and Servicing Agreement, except that the
obligation of Conseco Finance under this Section shall not relate to the actions
of any subsequent Servicer after a Service Transfer.
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(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.
(c) Conseco Finance 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 Conseco Finance 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 Conseco Finance, as the case may be, without
interest.
SECTION 4.4. Financial Statement Disclosure. Conseco Finance's
------------------------------
financial statements will disclose that the Initial, Additional and Subsequent
Contracts have been transferred by Conseco Finance to CFSC, and by CFSC to the
Trust, and that these Contracts and any other assets of CFSC are not available
to satisfy claims of Conseco Finance's creditors.
ARTICLE V
REPURCHASES
SECTION 5.1. Repurchase of Contracts Upon Breach of Warranty.
-----------------------------------------------
(a) Upon the occurrence of a Repurchase Event, Conseco Finance shall,
unless such breach shall have been cured in all material respects, repurchase
such Contract from the Trust pursuant to Section 3.05 of the Pooling and
Servicing Agreement, subject to the limitation of Section 3.06 of the Pooling
and Servicing Agreement. It is understood and agreed that the obligation of
Conseco Finance 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 Conseco Finance 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 Conseco Finance to demand performance hereunder, and in connection
therewith, Conseco Finance waives any requirement of prior demand against CFSC
with respect to such repurchase obligation. Any such purchase shall take place
in the manner specified in Section 3.06 of the Pooling and Servicing Agreement.
Notwithstanding any other provision of this Agreement, any Subsequent Purchase
Agreement or the Pooling and Servicing Agreement or any Subsequent Transfer
Agreement to the contrary, the obligation of Conseco Finance under this Section
shall not terminate upon a termination of Conseco Finance 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.
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(b) In addition to the foregoing and notwithstanding whether the
related Contract shall have been purchased by Conseco Finance, Conseco Finance
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
-----------------------------------
purchase amount of any Contract repurchased or replaced by Conseco Finance under
Section 5.1, CFSC shall cause the Trustee to take such steps as may be
reasonably requested by Conseco Finance in order to assign to Conseco Finance
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 Conseco Finance 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 Conseco Finance, take
such steps as Conseco Finance 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 Conseco Finance. Conseco Finance 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
Conseco Finance and the representations and warranties of Conseco Finance.
SECTION 6.2. Merger or Consolidation of Conseco Finance or CFSC. Any
--------------------------------------------------
corporation or other entity (i) into which Conseco Finance or CFSC may be merged
or consolidated, (ii) resulting from any merger or consolidation to which
Conseco Finance or CFSC is a party or (iii) succeeding to the business of
Conseco Finance or CFSC, in the case of CFSC, which corporation has articles of
incorporation containing provisions relating to limitations on business and
other matters substantively identical to those contained in CFSC's articles of
incorporation, provided that in any of the foregoing cases such corporation
shall execute an agreement of assumption to perform every obligation of Conseco
Finance or CFSC, as the case may be, under this Agreement and each Subsequent
Transfer Agreement and, whether or not such assumption agreement is executed,
shall be the successor to Conseco Finance or CFSC, as
-11-
<PAGE>
the case may be, hereunder and under each such Subsequent Transfer Agreement
(without relieving Conseco Finance 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. Conseco Finance or CFSC shall promptly inform the
other party, the Trustee of such merger, consolidation or purchase and
assumption. Notwithstanding the foregoing, as a condition to the consummation of
the transactions referred to in clauses (i), (ii) and (iii) above, (x)
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Sections 3.1 and 3.2 and this Agreement, or similar
representation or warranty made in any Subsequent 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) Conseco
Finance 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) Conseco Finance or CFSC, as
applicable, shall have delivered to the Trustee an Opinion of Counsel, stating
that, in the opinion of such counsel, either (A) all financing statements and
continuation statements and amendments thereto have been executed and filed that
are necessary to preserve and protect the interest of the Trustee in the Trust
and reciting the details of the filings or (B) no such action shall be necessary
to preserve and protect such interest.
SECTION 6.3. Limitation on Liability of Conseco Finance and Others.
-----------------------------------------------------
Conseco Finance 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 Conseco Finance 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 Certificateholder.
(b) This Agreement may also be amended from time to time by Conseco
Finance and CFSC, with the prior written consent of the Trustee and the Holders
of Certificates representing, in the aggregate, 66 2/3% or more of the Aggregate
Cut-off Date Principal Balance, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement,
or of modifying in any manner the rights of the Certificateholders; provided,
--------
however, that no such amendment shall (i) increase or reduce in any manner the
-------
amount of, or accelerate or delay the timing of, collections of payments on the
Contracts or, distributions that are required to be made on any Certificate or
(ii) reduce the aforesaid
-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 S&P, Moody's and
Fitch. Promptly after the execution of any amendment or consent pursuant to this
Section 6.4, CFSC shall furnish written notification of the substance of such
amendment to S&P, Moody's, Fitch, each Certificateholder and the Class C
Certificateholders.
(e) It shall not be necessary for the consent of Certificateholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Trustee, as applicable, may
prescribe, including the establishment of record dates. The consent of any
Holder of a Certificate given pursuant to this Section or pursuant to any other
provision of this Agreement shall be conclusive and binding on such Holder and
on all future Holders of such 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
-------
Conseco Finance 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 Conseco Finance, to
Conseco Finance Corp., 300 Landmark Towers, 345 St. Peter Street, Saint Paul,
Minnesota 55102-1639, Attention: Chief Financial Officer, or such other address
as shall be designated by Conseco Finance in a written notice delivered to the
other party or to the Trustee, as applicable, or (b) in case of CFSC, to Conseco
Finance Securitizations Corp., 1100 Landmark Towers, 345 St. Peter Street, Saint
Paul, Minnesota 55102-1639, Attention: Chief Financial Officer.
SECTION 6.6. Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement and the Related Documents set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and the
Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 6.7. Severability of Provisions. If any one or more of the
--------------------------
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
-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 Conseco Finance 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 Conseco Finance 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 Conseco Finance'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, Conseco
Finance. 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 Conseco
Finance, the parties intend that Conseco Finance shall have granted to CFSC a
security interest in all of Conseco Finance's right, title and interest in and
to the Initial Contracts and the Initial Collateral Security and the Subsequent
Contracts and Subsequent Collateral Security, as the case may be, conveyed
pursuant to Section 2.1 hereof or pursuant to any Subsequent Transfer Agreement,
and that this Agreement and each Subsequent Transfer Agreement shall constitute
a security agreement under applicable law.
SECTION 6.9. Governing Law. This Agreement shall be construed in
-------------
accordance with, the laws of the State of Minnesota without regard to the
principles of conflicts of laws thereof, and the obligations, rights and
remedies of the parties under this Agreement shall be determined in accordance
with such laws.
SECTION 6.10. Counterparts. For the purpose of facilitating the
------------
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 6.11. Conveyance of the Initial Contracts and the Initial
---------------------------------------------------
Collateral Security to the Trust. Conseco Finance 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. Conseco Finance acknowledges
and consents to such conveyance and waives any further notice thereof and
covenants and agrees that the representations and warranties of Conseco Finance
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, Conseco Finance covenants and agrees to perform its duties and
obligations hereunder, in accordance with the terms hereof for the benefit of
the Trustee, the Trust, and the Certificateholders and that, notwithstanding
anything to the contrary in this Agreement, Conseco Finance 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 Conseco Finance under this Agreement against Conseco Finance for the benefit
of the Trust and the Certificateholders.
-14-
<PAGE>
SECTION 6.12. Nonpetition Covenant. Neither CFSC nor Conseco Finance
--------------------
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 Conseco Finance, 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 day and year first above
written.
CONSECO FINANCE CORP., as Seller
By /s/ Timothy R. Jacobson
-------------------------------------
Timothy R. Jacobson
Vice President and Assistant Treasurer
CONSECO FINANCE SECURITIZATIONS CORP.,
as
Purchaser
By /s/ Timothy R. Jacobson
-------------------------------------
Timothy R. Jacobson
Vice President and Assistant Treasurer
-16-
<PAGE>
SCHEDULE A
SCHEDULE OF INITIAL CONTRACTS
A-1
<PAGE>
EXHIBIT A
FORM OF
SUBSEQUENT TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
CONSECO FINANCE CORP.
Seller
dated as of
________, 2000
<PAGE>
SUBSEQUENT TRANSFER AGREEMENT, dated as of ____________, 2000, between
Conseco Finance Securitizations Corp., a Minnesota corporation, as purchaser
("CFSC"), and Conseco Finance Corp., a Delaware corporation, as seller ("Conseco
Finance"), pursuant to the Transfer Agreement, dated as of December 1, 2000
between CFSC and Conseco Finance.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Conseco Finance and CFSC are parties to a Transfer Agreement,
dated as of August 1, 2000 (as amended or supplemented, the "Transfer
Agreement");
WHEREAS, pursuant to the Transfer Agreement and this Agreement, CFSC
has agreed to purchase from Conseco Finance and Conseco Finance 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 Conseco Finance, intending to be
legally bound, hereby agree as follows:
1. Defined Terms. Capitalized terms used but not otherwise defined
-------------
herein shall have the respective meanings assigned to such terms in the Transfer
Agreement.
"Schedule of Subsequent Contracts" means the schedule of all
--------------------------------
manufactured housing contracts sold and transferred pursuant to this Agreement
attached hereto as Schedule A, which Schedule of Subsequent Contracts shall
supplement the Schedule of Initial Contracts attached to the Transfer Agreement.
"Subsequent Cut-off Date" shall mean, with respect to the Subsequent
-----------------------
Contracts conveyed hereby, ____________, 2000.
"Subsequent Collateral Security" means the Subsequent Collateral
------------------------------
Security conveyed by Conseco Finance to CFSC pursuant to each Subsequent
Transfer Agreement.
"Subsequent Contracts" means, for purposes of this Agreement, the
--------------------
Contracts listed in the Schedule of Subsequent Contracts.
2. Conveyance of the Subsequent Contracts and the Collateral
---------------------------------------------------------
Security. Subject to the terms and conditions of this Agreement and the Transfer
--------
Agreement, Conseco Finance 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 Conseco Finance in and to the Subsequent Contracts
and the Subsequent Transfer Agreement, including (i) all the right, title and
interest of Conseco Finance in and to the Subsequent Contracts identified on the
list attached hereto as Exhibit A (the "Subsequent Contracts"), including,
without limitation, all right, title and interest in and to the Collateral
Security and all rights to receive payments on or with respect to the
Ex. A-1
<PAGE>
Subsequent Contracts (other than the principal and interest due on the
Subsequent Contracts before the applicable 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, (vi) all rights of Conseco Finance under the
Subsequent Transfer Agreement between Conseco Finance and CFSC, and (vii) all
proceeds and products of the foregoing. It is the intention of Conseco Finance
and CFSC that the transfer and assignment contemplated by this Agreement shall
constitute a sale of the Subsequent Contracts and the Collateral Security from
Conseco Finance 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 Conseco Finance's estate in the event of the filing of a bankruptcy
petition by or against Conseco Finance under any bankruptcy or similar law.
Conseco Finance's financial statements will disclose that the Subsequent
Contracts have been transferred by Conseco Finance to CFSC, and by CFSC to the
Trust, and are not available to satisfy claims of Conseco Finance's creditors.
3. Purchase Price. Simultaneously with the conveyance of the
--------------
Subsequent Contracts and the Collateral Security to CFSC, CFSC has paid or
caused to be paid to or upon the order of Conseco Finance, 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 Conseco Finance: $________
4. Representations and Warranties of Conseco Finance. Conseco
-------------------------------------------------
Finance makes the following representations and warranties, on which CFSC relies
in purchasing the Subsequent Contracts and the Collateral Security and in
transferring the Subsequent Contracts and the Collateral Security to the Trust
under this Agreement. Such representations are made as of the execution and
delivery of this Agreement, but shall survive the sale, transfer and assignment
of the Subsequent Contracts and the Collateral Security hereunder, and the sale,
transfer and assignment thereof by CFSC to the Trust hereunder. Conseco Finance
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 Conseco Finance in the Trust's own name.
(a) Schedule of Representations. The representations and warranties
---------------------------
set forth in Sections 3.02, 3.03 and 3.04 of the Pooling and Servicing
Agreement are true and correct.
(b) Organization and Good Standing. Conseco Finance has been duly
------------------------------
organized and is validly existing as a corporation in good standing under
the laws of the
Ex. A-2
<PAGE>
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.
(c) Due Qualification. Conseco Finance 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. Conseco Finance has the power and authority
-------------------
to execute and deliver this Agreement and to carry out its terms and their
terms, respectively; Conseco Finance has full power and authority to sell
and assign the Subsequent Contracts and the 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 Conseco Finance 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 Conseco Finance and creditors of and purchasers from Conseco
Finance; and this Agreement constitutes the legal, valid and binding
obligations of Conseco Finance 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 Conseco Finance, or
any indenture, agreement, mortgage, deed of trust or other instrument to
which Conseco Finance 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 Conseco Finance of
any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over Conseco
Finance or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
--------------
pending or, to Conseco Finance's knowledge, threatened against Conseco
Finance, before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over Conseco
Finance or its properties (i) asserting the invalidity of
Ex. A-3
<PAGE>
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 Conseco Finance 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 Conseco Finance nor CFSC is insolvent nor will
either of them have been made insolvent after giving effect to the
conveyance set forth in Section 2 of this Agreement, nor are any of them
aware of any pending insolvency.
(i) Chief Executive Office. The chief executive office of Conseco
----------------------
Finance 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 Conseco Finance relies in selling,
assigning, transferring and conveying the Subsequent Contracts and the
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 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 Collateral Security, and to transfer the Subsequent
Contracts and the Collateral Security to the Trust pursuant to this
Agreement.
(b) Due Qualification. CFSC is duly qualified to do business as a
-----------------
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so
would materially and adversely affect CFSC's ability to acquire the
Subsequent Contracts or the Collateral Security or the validity or
enforceability of the Subsequent Contracts and the 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 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.
Ex. A-4
<PAGE>
(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, any indenture, agreement,
mortgage, deed of trust or other instrument to which CFSC is a party or by
which CFSC is bound or to which any of its properties are subject, or
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of
trust or other instrument (other than the Pooling and Servicing Agreement
and the Transfer Agreement), or violate any law, order, rule or regulation,
applicable to CFSC or its properties, of any federal or state regulatory
body, any court, administrative agency, or other governmental
instrumentality having jurisdiction over CFSC or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
--------------
pending, or, to the knowledge of CFSC, threatened against CFSC, before any
court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over CFSC or its
properties: (i) asserting the invalidity of this Agreement, (ii) seeking
to prevent the consummation of any of the transactions contemplated by this
Agreement, (iii) seeking any determination or ruling that might materially
and adversely affect the performance by CFSC of its obligations under, or
the validity or enforceability of, this Agreement, or (iv) that may
adversely affect the federal or state income tax attributes of, or seeking
to impose any excise, franchise, transfer or similar tax upon, the transfer
and acquisition of the Subsequent Contracts and the Collateral Security to
the Trust.
In the event of any breach of a representation and warranty made by CFSC
hereunder, Conseco Finance 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. Conseco Finance 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.
Ex. A-5
<PAGE>
6. Conditions Precedent. The obligation of CFSC to acquire the
--------------------
Subsequent Contracts and the Collateral Security hereunder is subject to the
satisfaction, on or prior to the Subsequent Transfer Date, of the following
conditions precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by the Conseco Finance in Section 4 of this Agreement and
in Section 3.1 of the Transfer Agreement shall be true and correct as of
the date of this Agreement and as of the Subsequent Transfer Date.
(b) Transfer Agreement Conditions. Each of the conditions set forth
-----------------------------
in Section 2.3(b) of the Transfer Agreement applicable to the conveyance of
Subsequent Contracts and the Collateral Security shall have been satisfied.
(c) Pooling and Servicing Agreement Representations and Warranties.
--------------------------------------------------------------
Each of the representations and warranties contained in Section 3.04 of the
Pooling and Servicing Agreement shall be true and correct.
(d) Additional Information. Conseco Finance shall have delivered to
----------------------
CFSC such information as was reasonably requested by CFSC to satisfy itself
as to (i) the accuracy of the representations and warranties set forth in
Section 4 of this Agreement and in Section 3.1 of the Transfer Agreement
and (ii) the satisfaction of the conditions set forth in this Section 6.
7. Ratification of Transfer Agreement. As supplemented by this
----------------------------------
Agreement, the Transfer Agreement is in all respects ratified and confirmed and
the Transfer Agreement as so supplemented by this Agreement shall be read, taken
and construed as one and the same instrument.
8. Governing Law. This Agreement shall be construed in accordance
-------------
with the laws of the State of Minnesota without regard to the principles of
conflicts of laws thereof, and the obligations, rights and remedies of the
parties under this Agreement shall be determined in accordance with such laws.
9. Counterparts. For the purposes of facilitating the execution of
------------
this Agreement and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and all of which counterparts shall constitute but
one and the same instrument.
10. Conveyance of the Subsequent Contracts and the Collateral
---------------------------------------------------------
Security to the Trust. Conseco Finance acknowledges that CFSC intends, pursuant
---------------------
to a Subsequent Transfer Instrument, to convey the Subsequent Contracts and the
Collateral Security, together with its rights under this Agreement and under the
Transfer Agreement, to the Trust on the date hereof. Conseco Finance
acknowledges and consents to such conveyance and waives any further notice
thereof and covenants and agrees that the representations and warranties of
Conseco Finance 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, Conseco
Ex. A-6
<PAGE>
Finance 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, Conseco Finance 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 Conseco Finance under this Agreement and the Transfer Agreement
against Conseco Finance for the benefit of the Trust and the Certificateholders.
Ex. A-7
<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:
Title:
CONSECO FINANCE CORP.,
as Seller
By _______________________________
Name:
Title:
Ex. A-8
