Exhibit 4.2
TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
CONSECO FINANCE CORP.
Seller
of
CONSECO FINANCE HOME EQUITY LOAN TRUST 2002-B
Dated as of April 1, 2002
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS ..................................................... 1
SECTION 1.1. General ................................................. 1
SECTION 1.2. Specific Terms .......................................... 1
SECTION 1.3. Usage of Terms .......................................... 3
SECTION 1.4. No Recourse ............................................. 3
ARTICLE II CONVEYANCE OF THE INITIAL AND ADDITIONAL LOANS AND
THE INITIAL OTHER CONVEYED PROPERTY ............................ 3
SECTION 2.1. Conveyance of the Initial and Additional Loans and
the Initial Other Conveyed Property ..................... 3
SECTION 2.2. Purchase Price of Initial and Additional Loans .......... 3
SECTION 2.3. Conveyance of Subsequent Loans and Subsequent Other
Conveyed Property ....................................... 4
ARTICLE III REPRESENTATIONS AND WARRANTIES ................................ 5
SECTION 3.1. Representations and Warranties of CFC ................... 5
SECTION 3.2. Representations and Warranties of CFSC .................. 6
ARTICLE IV COVENANTS OF CFC ............................................... 8
SECTION 4.1. Transfer of Loans ....................................... 8
SECTION 4.2. Costs and Expenses ...................................... 8
SECTION 4.3. Indemnification ......................................... 9
ARTICLE V REPURCHASES ..................................................... 9
SECTION 5.1. Repurchase of Loans Upon Breach of Warranty ............. 9
SECTION 5.2. Reassignment of Purchased Loans ......................... 10
SECTION 5.3. Waivers ................................................. 10
ARTICLE VI MISCELLANEOUS .................................................. 10
SECTION 6.1. Liability of CFC ........................................ 10
SECTION 6.2. Merger or Consolidation of CFC or CFSC .................. 10
SECTION 6.3. Limitation on Liability of CFC and Others ............... 11
SECTION 6.4. Amendment ............................................... 11
SECTION 6.5. Notices ................................................. 12
SECTION 6.6. Merger and Integration .................................. 12
SECTION 6.7. Severability of Provisions .............................. 12
SECTION 6.8. Intention of the Parties ................................ 13
SECTION 6.9. Governing Law ........................................... 13
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SECTION 6.10. Counterparts ............................................ 13
SECTION 6.11. Conveyance of the Initial and Additional Loans and
the Initial Other Conveyed Property to the Trust ........ 13
SECTION 6.12. Non-petition Covenant ................................... 13
SCHEDULES
Schedule A -- Schedule of Initial and Additional Loans
EXHIBITS
Exhibit A -- Form of Subsequent Transfer Agreement
Exhibit B -- Form of Assignment
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TRANSFER AGREEMENT
------------------
THIS TRANSFER AGREEMENT, dated as of April 1, 2002, 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, pursuant to this
Agreement, is transferring to CFSC the certain home equity loans specified in
the Schedule of Initial and Additional Loans attached hereto as Schedule A (the
"Initial and Additional Loans") and the Initial Other Conveyed Property; and
WHEREAS, CFSC has agreed to purchase from CFC and CFC has agreed to
transfer to CFSC the Subsequent Loans and Subsequent Other Conveyed Property in
an amount set forth herein, prior to [May 14], 2002.
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 April 1, 2002, by
and among Conseco Finance Securitizations Corp. (as Seller), Conseco Finance
Corp. (as Originator and Servicer), and U.S. Bank National Association, as
Trustee (the "Trustee").
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 April 25, 2002.
"Initial Other Conveyed Property" means all monies at any time paid or
payable on the Initial and Additional Loans or in respect thereof after the
Cut-off Date (excluding amounts due on or before the Cut-off Date but received
by CFC after the Cut-off Date), an assignment of security interests in the
related real estate, the Certificate Account (including all Eligible Investments
therein and all proceeds therefrom), all items contained in the Loan Files
relating to
the Initial and Additional Loans, any and all other documents or electronic
records that CFC keeps on file in accordance with its customary procedures
relating to the Initial and Additional Loans, the Obligors or the related real
estate, property (including the right to receive future Liquidation Proceeds)
that secures an Initial Loan and that has been acquired by or on behalf of the
Trust pursuant to liquidation of such Initial Loan, and all proceeds of the
foregoing.
"Initial and Additional Loans" means the Loans listed on the Schedule of
Initial and Additional Loans attached hereto as Schedule A.
"Other Conveyed Property" means the Initial Other Conveyed Property
conveyed by CFC to CFSC pursuant to this Agreement together with any and all
Subsequent Other Conveyed Property conveyed by CFC to CFSC pursuant to each
Subsequent Transfer Agreement.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, dated as of April 1, 2002, executed and delivered by CFC, as
Originator and Servicer, CFSC, 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 Loan by CFC
under the Pooling and Servicing Agreement.
"Schedule of Initial and Additional Loans" means the schedule of all Loans
sold and transferred pursuant to this Agreement which is attached hereto as
Schedule A.
"Schedule of Loans" means the Schedule of Initial and Additional Loans
attached hereto as Schedule A as supplemented by each Schedule of Subsequent
Loans attached to each Subsequent Transfer Agreement as Schedule A.
"Schedule of Subsequent Loans" means the schedule of all Loans sold and
transferred pursuant to a Subsequent Transfer Agreement which is attached to
such Subsequent Transfer Agreement as Schedule A, which Schedule of Subsequent
Loans shall supplement the Schedule of Initial and Additional Loans.
"Subsequent Loans" means the Loans specified in the Schedule of Subsequent
Loans attached as Schedule A to each Subsequent Transfer Agreement.
"Subsequent Other Conveyed Property" means the Subsequent Other Conveyed
Property conveyed by CFC to CFSC pursuant to each Subsequent Transfer Agreement.
"Subsequent Transfer Agreement" shall have the meaning given in Section
2.3(b)(iii).
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"Trust" means the trust created by the Pooling and Servicing Agreement, the
estate of which consists of the Trust Fund.
"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.
"Trust Property" means the property and proceeds of every description
conveyed by the Seller to the Trustee pursuant to the Pooling and Servicing
Agreement and pursuant to any Subsequent Transfer Instrument, together with the
Certificate Account and the Pre-Funding Account (including all investments of
the Certificate Account and all proceeds therefrom).
SECTION 1.3. Usage of Terms. With respect to all terms used in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement or the Pooling and
Servicing Agreement; references to Persons include their permitted successors
and assigns; and the terms "include" or "including" mean "include without
limitation" or "including without limitation."
SECTION 1.4. No Recourse. Without limiting the obligations of 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.
ARTICLE II
CONVEYANCE OF THE INITIAL AND ADDITIONAL LOANS
AND THE INITIAL OTHER CONVEYED PROPERTY
SECTION 2.1. Conveyance of the Initial and Additional Loans and the Initial
Other Conveyed Property. 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 and Additional Loans and the Initial
Other Conveyed Property. It is the intention of CFC and CFSC that the transfer
and assignment contemplated by this Agreement shall constitute a sale of the
Initial and Additional Loans and the Initial Other Conveyed Property from CFC to
CFSC, conveying good title thereto free and clear of any Liens, and the Initial
and Additional Loans and the Initial Other Conveyed Property 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 and Additional Loans. Simultaneously
with the conveyance of the Initial and Additional Loans and the Initial Other
Conveyed Property to CFSC, CFSC has paid or caused to be paid to or upon the
order of CFC approximately $____________ by wire transfer of immediately
available funds (representing the proceeds to
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CFSC from the sale of the Initial and Additional Loans after (i) deducting
expenses of approximately $425,000 incurred by CFSC in connection with such sale
and (ii) depositing the Pre-Funded Amount in the Pre-Funding Account.
SECTION 2.3. Conveyance of Subsequent Loans and Subsequent Other Conveyed
Property.
(a) Subject to the conditions set forth in paragraph (b) below and the
terms and conditions in the related Subsequent 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
Loans (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 Loans and the Subsequent
Other Conveyed Property described in the related Subsequent Transfer Agreement.
(b) CFC shall transfer to CFSC, and CFSC shall acquire, the Subsequent
Loans and the Subsequent Other Conveyed Property to be transferred on any
Subsequent Transfer Date only upon the satisfaction of each of the following
conditions on or prior to such Subsequent Transfer Date:
(i) 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 Loans;
(ii) CFC shall have delivered the related Loan File for each
Subsequent Loan to the Trustee at least two Business Days prior to the
Subsequent Transfer Date;
(iii) CFC shall have delivered to CFSC a duly executed Subsequent
Transfer Agreement substantially in the form of Exhibit A hereto (the
"Subsequent Transfer Agreement"), which shall include a List of Loans
identifying the related Subsequent Loans;
(iv) as of each Subsequent Transfer Date, as evidenced by delivery of
the Subsequent Transfer 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 REMIC or the Certificateholders or
Class R Certificateholder;
(vi) the Pre-Funding Period shall not have ended; and
(vii) no Subsequent Loan will have a Combined LTV greater than 100%.
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(c) CFC covenants to transfer to CFSC pursuant to paragraph (a) above
Subsequent Loans with aggregate Scheduled Principal Balances of approximately
equal to $__________; provided, however, that the sole remedy of CFSC with
respect to a failure of such covenant shall be to enforce the provisions of
Section 8.08 of the Pooling and Servicing Agreement.
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
and Additional Loans and the Initial Other Conveyed Property and in transferring
the Initial and Additional Loans and the Initial Other Conveyed Property to the
Trustee 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 and Additional Loans and the Initial
Other Conveyed Property hereunder and the sale, transfer and assignment thereof
by CFSC to the Trustee under the Pooling and Servicing Agreement. 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 Trustee's own name.
(a) Representations Regarding Loans. 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 and Additional Loans and the
Initial Other Conveyed Property 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 and Additional Loans and the Initial Other Conveyed Property to be
sold and assigned to and deposited with CFSC hereunder and has duly authorized
such sale and assignment to CFSC by all necessary corporate action; and the
execution, delivery and performance of this Agreement and 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 and Additional Loans and the Initial
Other Conveyed Property, enforceable against CFC and creditors of and purchasers
from CFC; and this Agreement and CFC's Related Documents constitute legal, valid
and binding obligations of CFC enforceable in accordance with their
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respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by equitable limitations on the availability of
specific remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(f) No Violation. The consummation of the transactions contemplated by this
Agreement and the Related Documents and the fulfillment of the terms of this
Agreement and the Related Documents shall not conflict with, result in any
breach of any of the terms and provisions of or constitute (with or without
notice, lapse of time or both) a default under, the articles of incorporation or
bylaws of 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 and Additional Loans and the Initial
Other Conveyed Property hereunder or under the Pooling and Servicing Agreement.
(h) Chief Executive Office. The chief executive office of CFC is located at
1100 Landmark Towers, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
(i) Licensing. CFC is duly licensed in each state in which Loans were
originated to the extent CFC is required to be licensed by applicable law in
connection with the origination and servicing of the Loans.
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 and Additional Loans and the
Initial Other Conveyed Property to CFSC hereunder. Such representations are made
as of the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Initial and Additional Loans and the Initial
Other Conveyed Property hereunder and the sale, transfer and assignment thereof
by CFSC to the Trust under the Pooling and Servicing Agreement.
(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
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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 and Additional Loans and the Initial Other Conveyed Property
and to transfer the Initial and Additional Loans and the Initial Other Conveyed
Property to the Trust pursuant to the Sale and Servicing Agreement.
(b) Due Qualification. CFSC is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions where the failure to do so would materially and
adversely affect (i) CFSC's ability to acquire the Initial and Additional Loans
or the Initial Other Conveyed Property, (ii) the validity or enforceability of
the Initial and Additional Loans and the Initial Other Conveyed Property or
(iii) CFSC's ability to perform its obligations hereunder and under the Related
Documents.
(c) Power and Authority. CFSC has the power, authority and legal right to
execute and deliver this Agreement and its Related Documents and to carry out
the terms hereof and thereof and to acquire the Initial and Additional Loans and
the Initial Other Conveyed Property hereunder; and the execution, delivery and
performance of this Agreement and its Related Documents and all of the documents
required pursuant hereto or thereto have been duly authorized by CFSC by all
necessary action.
(d) No Consent Required. CFSC is not required to obtain the consent of any
other Person, or any consent, license, approval or authorization or registration
or declaration with, any governmental authority, bureau or agency in connection
with the execution, delivery or performance of this Agreement and the Related
Documents, except for such as have been obtained, effected or made.
(e) Binding Obligation. This Agreement and each of its Related Documents
constitutes a legal, valid and binding obligation of CFSC, enforceable against
CFSC in accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws and to general equitable principles.
(f) No Violation. The execution, delivery and performance by CFSC of this
Agreement, the consummation of the transactions contemplated by this Agreement
and the Related Documents and the fulfillment of the terms of this Agreement and
the Related Documents do not and will not conflict with, result in any breach of
any of the terms and provisions of or constitute (with or without notice or
lapse of time) a default under the certificate of incorporation or bylaws of
CFSC, or conflict with or breach any of the terms or provisions of, or
constitute (with or without notice or lapse of time) a default under, any
indenture, agreement, mortgage, deed of trust or other instrument to which CFSC
is a party or by which CFSC is bound or to which any of its properties are
subject, or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument (other than the Pooling and Servicing
Agreement and the Indenture), or violate any law, order, rule or regulation,
applicable to CFSC or its properties, of any federal or state regulatory body or
any court, administrative agency, or other governmental instrumentality having
jurisdiction over CFSC or any of its properties.
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(g) No Proceedings. There are no proceedings or investigations pending, or,
to the knowledge of CFSC, threatened against CFSC, before any court, regulatory
body, administrative agency, or other tribunal or governmental instrumentality
having jurisdiction over CFSC or its properties: (i) asserting the invalidity of
this Agreement or any of the Related Documents, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any of
the Related Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by CFSC of its obligations
under, or the validity or enforceability of, this Agreement or any of the
Related Documents or (iv) that may adversely affect the federal or state income
tax attributes of, or seeking to impose any excise, franchise, transfer or
similar tax upon, the transfer and acquisition of the Initial and Additional
Loans and the Initial Other Conveyed Property hereunder or the transfer of the
Initial and Additional Loans and the Initial Other Conveyed Property 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 Loans.
(a) On or prior to the Closing Date, or the Subsequent Transfer Date in the
case of Subsequent Loans, CFC shall deliver the Loan Files to CFSC. CFC has
filed a form UCC-1 financing statement regarding the sale of the Loans to CFSC,
and shall file continuation statements in respect of such UCC-1 financing
statement as if such financing statement were necessary to perfect such sale.
CFC shall take any other actions necessary to maintain the perfection of the
sale of the Loans to CFSC.
(b) CFC shall file promptly in the appropriate recording offices the
assignments to the Trustee on behalf of the Trust of the mortgage, deed of trust
or security deed securing each Loan relating to real estate located in Maryland,
and shall deliver to the Trustee an Opinion of Counsel to the effect that the
recordation of assignments of the mortgages, deeds of trust and security deeds,
securing Loans relating to real estate located in any state other than Maryland,
is not necessary to effect the assignment to the Trustee on behalf of the Trust
of CFC's lien on the real property securing such Loans.
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.
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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 the use
or ownership of any real estate related to a Loan by CFC or the Servicer or any
Affiliate of either. Notwithstanding any other provision of this Agreement, the
obligation of CFC 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 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 Loans is
intended to be assumed by CFSC under or as a result of this Agreement and the
transactions contemplated hereby and, to the maximum extent permitted and valid
under mandatory provisions of law, CFSC expressly disclaims such assumption.
(c) 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 Loans to CFSC, including, without limitation, any
sales, gross receipts, general corporation, personal property, privilege or
license taxes and costs, expenses and reasonable counsel fees in defending
against the same, whether arising by reason of the acts to be performed by 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 4.3 and CFSC thereafter collects any of such amounts from others, CFSC
will repay such amounts collected to CFC, without interest.
ARTICLE V
REPURCHASES
SECTION 5.1. Repurchase of Loans 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 Loan from the
Trust pursuant to Section 3.06 of the Pooling and Servicing Agreement, subject
to the limitation of Section 3.07 of the Pooling and Servicing Agreement. It is
understood and agreed that, the obligation of CFC to repurchase any Loan as to
which a breach has occurred and is continuing shall, if such obligation is
fulfilled, constitute the sole remedy against 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 or any Subsequent Transfer
Agreement to the contrary, the obligation of CFC under this Section shall not
terminate upon a termination of CFC as Servicer under the
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Pooling and Servicing Agreement and shall be performed in accordance with the
terms hereof notwithstanding the failure of the Servicer or CFSC to perform any
of their respective obligations with respect to such Loan under the Pooling and
Servicing Agreement.
(b) In lieu of repurchasing a Loan when required by Section 5.1(a) of this
Agreement and Section 3.06(a) of the Pooling and Servicing Agreement, CFC may
deliver an Eligible Substitute Loan pursuant to the provisions of Section
3.06(b) of the Pooling and Servicing Agreement.
(c) In addition to the foregoing and notwithstanding whether the related
Loan shall have been purchased by 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 Loans. Upon deposit of the
Repurchase Price of any Loan 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 Loan and all security and documents and all Other
Conveyed Property conveyed to CFSC and the Trust directly relating thereto,
without recourse, representation or warranty, except as to the absence of liens,
charges or encumbrances created by or arising as a result of actions of CFSC or
the Trustee. Such assignment shall be a sale and assignment outright, and not
for security. If, following the reassignment of a Loan, in any enforcement suit
or legal proceeding, it is held that CFC may not enforce any such Loan on the
ground that it shall not be a real party in interest or a holder entitled to
enforce the Loan, CFSC and the Trustee shall, at the expense of CFC, take such
steps as CFC deems reasonably necessary to enforce the Loan, including bringing
suit in CFSC's or the Trustee's name.
SECTION 5.3. Waivers. No failure or delay on the part of CFSC, or the
Trustee as assignee of CFSC, in exercising any power, right or remedy under this
Agreement or under any Subsequent 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 a certificate of incorporation containing provisions relating to
limitations on business and other matters substantively identical
10
to those contained in CFSC's certificate of incorporation, provided that in any
of the foregoing cases such corporation shall execute an agreement of assumption
to perform every obligation of 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, 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 and the Pooling and Servicing 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 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 (i) to cure any ambiguity or (ii) 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 CFC and CFSC,
with the prior written consent of the Trustee and the Holders of Certificates
representing, in the aggregate, 66 2/3% or more of the Aggregate Certificate
Principal Balance, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the Certificateholders; provided, however,
that no such amendment shall (i) increase or reduce in any manner the amount of,
or
11
accelerate or delay the timing of, collections of payments on the Loans or,
distributions that are required to be made on any Certificate or (ii) reduce the
aforesaid percentage required to consent to any such amendment or any waiver
hereunder, without the consent of the Holders of all Certificates then
outstanding.
(c) This Agreement shall not be amended under this Section 6.4 without the
consent of 100% of the Certificateholders and the Class R Certificateholder 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, Fitch and ▇▇▇▇▇'▇.
Promptly after the execution of any amendment or consent pursuant to this
Section 6.4, CFSC shall furnish written notification of the substance of such
amendment to S&P, Fitch and ▇▇▇▇▇'▇, each Certificateholder and the Class R
Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders
pursuant to this Section 6.4 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 6.4 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, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Chief
Financial Officer, or such other address as shall be designated by CFC in a
written notice delivered to the other party or to the Trustee or (b) in case of
CFSC, to Conseco Finance Securitizations Corp., 300 Landmark Towers, ▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, 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.
12
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 and Additional Loans and the
Initial Other Conveyed Property and the Subsequent Loans and Subsequent Other
Conveyed Property, as the case may be, conveying good title thereto free and
clear of any liens, from CFC to CFSC, and that the Initial and Additional Loans
and the Initial Other Conveyed Property and the Subsequent Loans and Subsequent
Other Conveyed Property 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 loan made by
CFSC, the Trust or the Certificateholders to CFC, the parties intend that CFC
shall have granted to CFSC a security interest in all of CFC's right, title and
interest in and to the Initial and Additional Loans and the Initial Other
Conveyed Property and the Subsequent Loans and Subsequent Other Conveyed
Property, as the case may be, conveyed pursuant to Section 2.1 hereof or
pursuant to any Subsequent 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 and Additional Loans and the
Initial Other Conveyed Property to the Trust. CFC acknowledges that CFSC
intends, pursuant to the Pooling and Servicing Agreement, to convey the Initial
and Additional Loans and the Initial Other Conveyed Property, 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 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. Non-petition 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
13
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).
14
IN WITNESS WHEREOF, the parties have caused this Transfer Agreement to be
duly executed by their respective officers this 1st day of April, 2002.
CONSECO FINANCE SECURITIZATIONS CORP.,
as Purchaser
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Assistant Treasurer
CONSECO FINANCE CORP., as Seller
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Assistant Treasurer
15
SCHEDULE A
SCHEDULE OF INITIAL AND ADDITIONAL LOANS
[Included as Exhibit L to Pooling and Servicing Agreement]
EXHIBIT A
FORM OF
SUBSEQUENT TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
CONSECO FINANCE CORP.
Seller
Dated as of ________, 2002
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SUBSEQUENT TRANSFER AGREEMENT, dated as of ________, 2002, 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 April 1, 2002, 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
April 1, 2002 (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 Loans
and the Subsequent Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter contained, and for other good and valuable consideration, the
receipt of which is acknowledged, CFSC and 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 all supplements hereto.
"Schedule of Subsequent Loans" means the schedule of all home equity loans
sold and transferred pursuant to this Agreement attached hereto as Schedule A,
which Schedule of Subsequent Loans shall supplement the Schedule of Initial and
Additional Loans attached to the Transfer Agreement.
"Subsequent Cutoff Date" shall mean, with respect to the Subsequent Loans
conveyed hereby, [May 14], 2002.
"Subsequent Other Conveyed Property" means, for the purposes of this
Agreement, all monies at any time paid or payable on the Subsequent Loans
conveyed hereby or in respect thereof after the Subsequent Cut-off Date
(including amounts due on or before the Subsequent Cut-off Date but received by
CFC after the Subsequent Cut-off Date), an assignment of security interests in
the related real estate and any and all other documents or electronic records
that CFC keeps on file in accordance with its customary procedures relating to
the Subsequent Loans, the Obligors or the related real estate, property
(including the right to receive future Liquidation Proceeds) that secures a
Subsequent Loan and that has been acquired by or on behalf of the Trust pursuant
to liquidation of such Subsequent Loan, and all proceeds of the foregoing.
"Subsequent Loans" means, for purposes of this Agreement, the Loans listed
in the Schedule of Subsequent Loans.
2. Conveyance of the Subsequent Loans and the Subsequent Other Conveyed
Property. Subject to the terms and conditions of this Agreement and the Transfer
Agreement, CFC hereby sells, transfers, assigns, and otherwise conveys to CFSC
without recourse (but
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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 Loans and the Subsequent Other Conveyed Property. It is
the intention of CFC and CFSC that the transfer and assignment contemplated by
this Agreement shall constitute a sale of the Subsequent Loans and the
Subsequent Other Conveyed Property from CFC to CFSC, conveying good title
thereto free and clear of any Liens, and the Subsequent Loans and the Subsequent
Other Conveyed Property shall not be part of CFC's estate in the event of the
filing of a bankruptcy petition by or against CFC under any bankruptcy or
similar law.
3. Purchase Price. Simultaneously with the conveyance of the Subsequent
Loans and the Subsequent Other Conveyed Property to CFSC, CFSC has paid or
caused to be paid to or upon the order of 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 Loans: $_______
(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 Loans and the Subsequent Other Conveyed Property an in transferring
the Subsequent Loans and the Subsequent Other Conveyed Property to the Trust
under the Subsequent Transfer Agreement. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Subsequent Loans and the Subsequent Other Conveyed
Property hereunder, and the sale, transfer and assignment thereof by CFSC to the
Trust under the Subsequent Transfer Agreement. CFC and CFSC agree that CFSC will
assign to the Trust all of CFSC's rights under the Agreement, and that the Trust
will thereafter be entitled to enforce this Agreement against CFC 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. 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 Loans and the Subsequent Other Conveyed Property 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 the Subsequent Transfer Agreement and to
carry out its terms
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and their terms, respectively; CFC has full power and authority to sell and
assign the Subsequent Loans and the Subsequent Other Conveyed Property to
be sold and assigned to and deposited with CFSC hereunder and has duly
authorized such sale and assignment to CFSC by all necessary corporate
action; and the execution, delivery and performance of this Agreement and
the Subsequent Transfer Agreement have been duly authorized by CFC by all
necessary corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and the Subsequent
Transfer Agreement have been duly executed and delivered, shall effect a
valid sale, transfer and assignment of the Subsequent Loans and the
Subsequent Other Conveyed Property, enforceable against CFC and creditors
of and purchasers from CFC; and this Agreement constitutes the legal, valid
and binding obligation 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 Subsequent Transfer Agreement and the fulfillment of
the terms of this Agreement and the Subsequent Transfer Agreement shall not
conflict with, result in any breach of any of the terms and provisions of
or constitute (with or without notice, lapse of time or both) a default
under, the 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 Subsequent 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 or the Subsequent Transfer
Agreement, (ii) seeking to prevent or the consummation of any of the
transactions contemplated by this Agreement or the Subsequent Transfer
Agreement, (iii) seeking any determination or ruling that might materially
and adversely affect the performance by CFC of its obligations under, or
the validity or enforceability of, this Agreement or the Subsequent
Transfer Agreement, or (iv) seeking to affect adversely the federal income
tax or other federal, state or local tax attributes of, or seeking to
impose any excise, franchise, transfer or similar tax upon, the transfer
and acquisition of the Subsequent Loans and the Subsequent Other Conveyed
Property hereunder or under the Subsequent Transfer Agreement.
(h) Insolvency. As of the Subsequent Cut-off Date and the Subsequent
Transfer Date, neither CFC nor CFSC is insolvent nor will either of them
have been made
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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 CFC is
located at 1100 Landmark Towers, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
(j) Licensing. CFC is duly licensed in each state in which Loans were
originated to the extent CFC is required to be licensed by applicable law
in connection with the origination and servicing of the Loans.
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 Loans and the Subsequent Other
Conveyed Property to CFSC hereunder. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Subsequent Loans and the Subsequent Other Conveyed
Property hereunder and the sale, transfer and assignment thereof by CFSC to the
Trust under the Subsequent Transfer Instrument.
(a) Organization and Good Standing. CFSC has been duly organized and
is validly existing and in good standing as a corporation under the laws of
the State of Minnesota, with the power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and has,
full power, authority and legal right to acquire and own the Subsequent
Loans and the Subsequent Other Conveyed Property, and to transfer the
Subsequent Loans and the Subsequent Other Conveyed Property to the Trust
pursuant to the Subsequent Transfer Instrument.
(b) Due Qualification. CFSC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so
would materially and adversely affect CFSC's ability to acquire the
Subsequent Loans or the Subsequent Other Conveyed Property or the validity
or enforceability of the Subsequent Loans and the Subsequent Other Conveyed
Property or to perform CFSC's obligations hereunder and under the
Subsequent Transfer Instrument.
(c) Power and Authority. CFSC has the power, authority and legal right
to execute and deliver this Agreement and to carry out the terms hereof and
to acquire the Subsequent Loans and the Subsequent Other Conveyed Property
hereunder; and the execution, delivery and performance of this Agreement
and all of the documents required pursuant hereto have been duly authorized
by CFSC by all necessary action.
(d) No Consent Required. CFSC is not required to obtain the consent of
any other Person, or any consent, license, approval or authorization or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery or performance of this
Agreement and the Subsequent Transfer Agreement, except for such as have
been obtained, effected or made.
A-5
(e) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of CFSC, enforceable against CFSC in accordance with its
terms, subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other
similar laws and to general equitable principles.
(f) No Violation. The execution, delivery and performance by CFSC of
this Agreement, the consummation of the transactions contemplated by this
Agreement and the Subsequent Transfer Instrument and the fulfillment of the
terms of this Agreement and the Subsequent Transfer Instrument 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 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 or the
Subsequent Transfer Instrument, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or the Subsequent
Transfer Instrument, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by CFSC of its obligations
under, or the validity or enforceability of, this Agreement or the
Subsequent Transfer Instrument, or (iv) that may adversely affect the
federal or state income tax attributes of, or seeking to impose any excise,
franchise, transfer or similar tax upon, the transfer and acquisition of
the Subsequent Loans and the Subsequent Other Conveyed Property hereunder
or the transfer of the Subsequent Loans and the Subsequent Other Conveyed
Property to the Trust pursuant to the Subsequent Transfer Instrument.
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
Loans and the Subsequent Other Conveyed Property hereunder is subject to the
satisfaction, on or prior
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to the Subsequent Transfer Date, of the following conditions precedent, and CFC
hereby confirms that such conditions precedent are satisfied;
(a) Representations and Warranties. Each of the representations and
warranties made by the CFC in Section 4 of this Agreement and in Section
3.1 of the Transfer Agreement shall be true and correct as of the date of
this Agreement and as of the Subsequent Transfer Date.
(b) Transfer Agreement Conditions. Each of the conditions set forth in
Section 2.3(b) of the Transfer Agreement applicable to the conveyance of
Subsequent Loans and the Subsequent Other Conveyed Property shall have been
satisfied.
(c) Additional Information. CFC has 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 Loans and the Subsequent Other Conveyed
Property to the Trust. CFC acknowledges that CFSC intends, pursuant to a
Subsequent Transfer Instrument, to convey the Subsequent Loans and the
Subsequent Other Conveyed Property, together with its rights under this
Agreement and under the Transfer Agreement, to the Trust on the date hereof. 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 the Trustee, the Trust and the Certificateholders. In
furtherance of the foregoing, CFC covenants and agrees to perform its duties and
obligations hereunder and under the Transfer Agreement, in accordance with the
terms hereof and thereof for the benefit of the Trustee, the Trust and the
Certificateholders and that, notwithstanding anything to the contrary in this
Agreement or in the Transfer Agreement, 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
Subsequent Transfer Agreement) and that the Trustee may enforce
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the duties and obligations of CFC under this Agreement and the Transfer
Agreement against CFC for the benefit of the Trust and the Certificateholders.
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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
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[Name]
[Title]
CONSECO FINANCE CORP., as Seller
By
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[Name]
[Title]
A-9
EXHIBIT B
FORM OF ASSIGNMENT
In accordance with the Transfer Agreement (the "Agreement") dated as of
April 1, 2002, between the undersigned and Conseco Finance Securitizations
Corp., the undersigned does hereby transfer, convey and assign, set over and
otherwise convey, without recourse, to Conseco Finance Home Equity Loan Trust
2002-B, created by the Agreement, to be held in trust as provided in the
Agreement, (i) all right, title and interest in the home equity loans identified
in the List of Loans attached to the Agreement (including, without limitation,
all related mortgages, deeds of trust and security deeds and any and all rights
to receive payments on or with respect to the Loans due after the applicable
Cut-off Date), (ii) all rights under any hazard, flood or other individual
insurance policy on the real estate securing a Loan for the benefit of the
creditor of such Initial and Additional Loan, (iii) all rights Conseco Finance
Corp. may have against the originating lender with respect to Initial and
Additional Loans originated by a lender other than Conseco Finance Corp., (iv)
all rights of the Seller under the Transfer Agreement, (v) all rights under the
Errors and Omissions Protection Policy and the Fidelity Bond as such policy and
bond relate to the Initial and Additional Loans, (vi) all rights under any title
insurance policies, if applicable, on any of the properties securing Initial and
Additional Loans, (vii) all documents contained in the Loan Files relating to
the Initial and Additional Loans, (viii) amounts in the Certificate Account and
the Pre-Funding Account (including all proceeds of investments of the funds in
Certificate Account) and (ix) all proceeds and products of the foregoing.
This Assignment is made pursuant to and upon the representations and
warranties on the part of the undersigned contained in Article III of the
Agreement and no others. All undefined capitalized terms used in this Assignment
have the meanings given them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this _____ day of __________, 2002.
CONSECO FINANCE CORP.
[Seal]
By
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[Name]
[Title]
B-1
