EXECUTION
Certificates for Home Equity Loans
Series 2000-F
POOLING AND SERVICING AGREEMENT
among
CONSECO FINANCE SECURITIZATIONS CORP.
as Seller
and
CONSECO FINANCE CORP.
as Originator and Servicer
and
U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as Trustee
of
CONSECO FINANCE HOME EQUITY LOAN TRUST 2000-F
Dated as of October 1, 2000
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS.............................................................. 1-1
Section 1.01. General....................................................... 1-1
Section 1.02. Specific Terms................................................ 1-1
Section 1.03. Calculation of Interest on the Certificates................... 1-37
ARTICLE II. ESTABLISHMENT OF TRUST; TRANSFER OF LOANS............................... 2-1
Section 2.01. Closing....................................................... 2-1
Section 2.02. Conditions to the Closing..................................... 2-1
Section 2.03. Conveyance of the Subsequent Loans............................ 2-2
Section 2.04. Acceptance by Trustee......................................... 2-4
Section 2.05. REMIC Provisions.............................................. 2-5
Section 2.06. Seller Option to Substitute for Prepaid Loans................. 2-7
ARTICLE III. REPRESENTATIONS AND WARRANTIES......................................... 3-1
Section 3.01. Representations and Warranties Regarding the Seller........... 3-1
Section 3.02. Representations and Warranties Regarding Each Loan............ 3-2
Section 3.03. Additional Representations and Warranties..................... 3-5
Section 3.04. Representations and Warranties Regarding the Loans
in the Aggregate.............................................. 3-5
Section 3.05. Representations and Warranties Regarding the
Loan Files.................................................... 3-9
Section 3.06. Repurchases of Loans for Breach of Representations and
Warranties.................................................... 3-9
Section 3.07. No Repurchase Under Certain Circumstances..................... 3-11
ARTICLE IV. PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS............. 4-1
Section 4.01. Transfer of Loans............................................. 4-1
Section 4.02. Costs and Expenses............................................ 4-1
ARTICLE V. SERVICING OF LOANS....................................................... 5-1
Section 5.01. Responsibility for Loan Administration........................ 5-1
Section 5.02. Standard of Care.............................................. 5-1
Section 5.03. Records....................................................... 5-1
Section 5.04. Inspection.................................................... 5-1
Section 5.05. Certificate Account........................................... 5-2
Section 5.06. Enforcement................................................... 5-4
Section 5.07. Trustee to Cooperate.......................................... 5-5
Section 5.08. Costs and Expenses............................................ 5-6
Section 5.09. Maintenance of Insurance...................................... 5-6
Section 5.10. Merger or Consolidation of Servicer........................... 5-7
ARTICLE VI. REPORTS AND TAX MATTERS................................................. . 6-1
Section 6.01. Monthly Reports............................................... 6-1
Section 6.02. Officer's Certificate......................................... 6-1
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Section 6.03. Other Data.................................................... 6-1
Section 6.04. Annual Report of Accountants.................................. 6-1
Section 6.05. Statements to Certificateholders and the Class C
Certificateholder............................................. 6-1
Section 6.06. Payment of Taxes.............................................. 6-6
ARTICLE VII. SERVICE TRANSFER....................................................... 7-1
Section 7.01. Events of Termination......................................... 7-1
Section 7.02. Transfer...................................................... 7-1
Section 7.03. Trustee to Act; Appointment of Successor...................... 7-2
Section 7.04. Notification to Certificateholders and Class C
Certificateholder............................................. 7-2
Section 7.05. Effect of Transfer............................................ 7-3
Section 7.06. Transfer of Certificate Account............................... 7-3
ARTICLE VIII. PAYMENTS.............................................................. 8-1
Section 8.01. Monthly Payments.............................................. 8-1
Section 8.02. Advances...................................................... 8-1
Section 8.03. Reserved...................................................... 8-2
Section 8.04. Permitted Withdrawals from the Certificate Account;
Payments...................................................... 8-2
Section 8.05. Reassignment of Repurchased and Replaced Loans................ 8-10
Section 8.06. Class C Certificateholder's Purchase Option; Auction Sale;
Additional Principal Distribution Amount...................... 8-10
Section 8.07. Capitalized Interest Account.................................. 8-13
Section 8.08. Pre-Funding Account........................................... 8-14
ARTICLE IX. THE CERTIFICATES AND THE CLASS C CERTIFICATE............................ 9-1
Section 9.01. The Certificates and the Class C Certificate.................. 9-1
Section 9.02. Registration of Transfer and Exchange of Certificates and
the Class C Certificate....................................... 9-2
Section 9.03. No Charge; Disposition of Void Certificates or Class C
Certificate................................................... 9-5
Section 9.04. Mutilated, Destroyed, Lost or Stolen Certificates or
Class C Certificate........................................... 9-5
Section 9.05. Persons Deemed Owners......................................... 9-6
Section 9.06. Access to List of Certificateholders' and Class C
Certificateholder's Names And Addresses....................... 9-6
Section 9.07. Authenticating Agents......................................... 9-6
ARTICLE X. INDEMNITIES.............................................................. 10-1
Section 10.01. Real Estate................................................... 10-1
Section 10.02. Liabilities to Obligors....................................... 10-1
Section 10.03. Tax Indemnification........................................... 10-1
Section 10.04. Servicer's Indemnities........................................ 10-1
Section 10.05. Operation of Indemnities...................................... 10-1
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Section 10.06. REMIC Tax Matters............................................. 10-2
ARTICLE XI. THE TRUSTEE............................................................. 11-1
Section 11.01. Duties of Trustee............................................. 11-1
Section 11.02. Certain Matters Affecting the Trustee......................... 11-2
Section 11.03. Trustee Not Liable for Certificates, Class C Certificate
or Loans...................................................... 11-3
Section 11.04. Trustee May Own Certificates.................................. 11-3
Section 11.05. Rights of Certificateholders to Direct Trustee and to
Waive Events of Termination................................... 11-3
Section 11.06. The Servicer to Pay Trustee's Fees and Expenses............... 11-3
Section 11.07. Eligibility Requirements for Trustee.......................... 11-4
Section 11.08. Resignation or Removal of Trustee............................. 11-4
Section 11.09. Successor Trustee............................................. 11-5
Section 11.10. Merger or Consolidation of Trustee............................ 11-5
Section 11.11. Tax Returns................................................... 11-6
Section 11.12. Obligor Claims................................................ 11-6
Section 11.13. Appointment of Co-Trustee or Separate Trustee................. 11-7
Section 11.14. ▇▇▇▇▇▇� and U.S. Bancorp...................................... 11-7
Section 11.15. Trustee Advances.............................................. 11-8
ARTICLE XII. MISCELLANEOUS.......................................................... 12-1
Section 12.01. Servicer Not to Resign; Delegation of Servicing Duties........ 12-1
Section 12.02. Conseco and Seller Not to Engage in Certain Transactions
With Respect to the Trust..................................... 12-1
Section 12.03. Maintenance of Office or Agency............................... 12-1
Section 12.04. Termination................................................... 12-1
Section 12.05. Acts of Certificateholders and Class C Certificateholder...... 12-3
Section 12.06. Calculations.................................................. 12-4
Section 12.07. Assignment or Delegation by Originator........................ 12-4
Section 12.08. Amendment..................................................... 12-4
Section 12.09. Notices....................................................... 12-6
Section 12.10. Merger and Integration........................................ 12-7
Section 12.11. Headings...................................................... 12-7
Section 12.12. Governing Law................................................. 12-7
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Exhibit A-1 - Form of Class AF-[1A][1][2][3][4] Certificate
Exhibit A-2 - Form of Class AV-[1] Certificate
Exhibit B-1 - Form of Class MF-[1][2] Certificate
Exhibit B-2 - Form of Class MV-[1][2] Certificate
Exhibit C-1 - Form of Class BF-[1][2] Certificate
Exhibit C-2 - Form of Class BV-[1][2] Certificate
Exhibit D - Form of Assignment
Exhibit E-1 - Form of Certificate of Officer - Conseco Finance Corp.
Exhibit E-2 - Form of Certificate of Officer - Conseco Finance
Securitizations Corp.
Exhibit F - Form of Opinion of Counsel
Exhibit G - Form of Trustee's Acknowledgment
Exhibit H - Form of Certificate of Servicing Officer
Exhibit I - Form of Class C Certificate
Exhibit J-1 - Form of Certificate Regarding Repurchased Loans
Exhibit J-2 - Form of Certificate Regarding Repurchased Loans
Exhibit J-3 - Form of Certificate Regarding Substitution for Prepaid Loans
Exhibit K - Form of Representation Letter
Exhibit L-1 - List of Initial and Additional Adjustable Rate Loans
Exhibit L-2 - List of Initial and Additional Fixed Rate Group I Loans
Exhibit L-3 - List of Initial and Additional Fixed Rate Group II Loans
Exhibit M - Form of Monthly Report
Exhibit N - Form of Addition Notice
Exhibit O - Form of Subsequent Transfer Instrument
Exhibit P - Form of Officer's Certificate (Subsequent Transfer) - Conseco Finance Securitizations Corp.
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AGREEMENT, dated as of October 1, 2000, among Conseco Finance
Securitizations Corp., a corporation organized and existing under the laws of
the State of Minnesota, as Seller (the "Seller"), Conseco Finance Corp., a
corporation organized and existing under the laws of the State of Delaware, as
originator of the home equity loans described herein (the "Originator") and as
initial Servicer (the "Servicer"), and U.S. Bank Trust 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 (the "Trustee") of
Conseco Finance Home Equity Loan Trust 2000-F (the "Trust").
WHEREAS, in the regular course of its business, Conseco Finance Corp.
purchases, originates and services home equity loans, which loans provide for
installment payments by or on behalf of the borrowers and grant mortgages, deeds
of trust or security deeds on certain real estate securing such loans;
WHEREAS, the Seller, in the ordinary course of its business, acquires pools
of home equity loans and other receivables from Conseco Finance Corp. and
arranges the securitization of those receivables;
WHEREAS, the Seller intends to sell the Certificates (as defined herein) to
be issued hereunder in fourteen classes which, together with the Class C
Certificate (as defined herein), in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund (as defined herein), consisting
primarily of the Loans (as defined herein); and
WHEREAS, the Seller, the Originator, the Servicer and the Trustee wish to
set forth the terms and conditions on which the Trustee, on behalf of the
Certificateholders and Class C Certificateholder (as defined herein) will
acquire the Loans and the Servicer will service the Loans;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the parties hereto agree as provided herein:
ARTICLE I.
DEFINITIONS
-----------
SECTION 1.01. General. For the purpose of this Agreement, except as
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otherwise expressly provided or unless the context otherwise requires, the 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 Section references refer to Sections of this Agreement.
SECTION 1.02. Specific Terms.
--------------
"Addition Notice" means, with respect to the transfer of Subsequent Loans
---------------
to the Trust pursuant to Section 2.03 of this Agreement, a notice, substantially
in the form of Exhibit N, which shall be given not later than five Business Days
prior to the related Subsequent Transfer Date, of the Seller's designation of
Subsequent Loans to be sold to the Trust and the aggregate Cut-off Date
Principal Balances of such Subsequent Loans.
"Additional Loan" means a Loan identified as such on the List of Loans
---------------
attached hereto as Exhibit L-1, L-2, and L-3, the aggregate Cut-off Date
Principal Balance of which is $203,579,015.55.
"Additional Principal Entitlement Date" means the Payment Date occurring in
-------------------------------------
the month following the Determination Date specified in Section 8.06(d) if the
Class C Certificateholder has not delivered to the Trustee the notice described
in Section 8.06(b) of its purchase option.
"Adjustable Rate Certificates" means the Class AV-1, Class MV-1, Class MV-
----------------------------
2, Class BV-1 and Class BV-2 Certificates.
"Adjustable Rate Certificate Liquidation Losses" means, for any Payment
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Date, the excess, if any, of (a) the aggregate Principal Balances of the
Adjustable Rate Certificates, minus all distributions of principal on the
Adjustable Rate Certificates on such Payment Date, over (b) the sum of the
aggregate Scheduled Principal Balances of the Adjustable Rate Loans and the Pre-
Funded ARM Amount for such Payment Date.
"Adjustable Rate Loan" means each closed-end home equity loan identified as
--------------------
such in the List of Loans, including, without limitation, all related mortgages,
deeds of trust and security deeds and any and all rights to receive payments due
pursuant thereto after the applicable Cut-off Date.
"Advance" means, with respect to any Payment Date, the amounts, if any,
-------
deposited by the Servicer or the Trustee, as applicable, in the Certificate
Account for such Payment Date pursuant to Section 8.02.
"Advance Payment" means any payment by an Obligor in advance of the Due
---------------
Period in which it would be due under such Loan and which payment is not a
Principal Prepayment.
"Affiliate" of any specified Person means any other Person controlling or
---------
controlled by or under common control with such specified Person. For the
purposes of this definition, "control"
1-1
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" or "controlled" have meanings correlative to the foregoing.
"Aggregate Certificate Principal Balance" means the sum of the Class AV-1,
---------------------------------------
Class MV-1, Class MV-2, Class BV-1, Class BV-2, Class AF-1, Class AF-1A, Class
AF-2, Class AF-3, Class AF-4, Class MF-1, Class MF-2, Class BF-1 and Class BF-2
Principal Balances. The Aggregate Certificate Principal Balance as of the
Closing Date is $910,000,000.
"Agreement" means this Pooling and Servicing Agreement, as it may be
---------
amended from time to time.
"Amount Available" means, for any Payment Date, and the Adjustable Rate
----------------
Certificates, the Class AF-1A Certificates, and the Fixed Rate Group II
Certificates, respectively, an amount equal to:
(a) the sum of
(i) the amount on deposit in the Certificate Account in respect of
the Adjustable Rate Loans, the Fixed Rate Group I Loans and the Fixed Rate
Group II Loans, respectively, as of the close of business on the last day
of the related Due Period,
(ii) any Advances in respect of the Adjustable Rate Loans, the Fixed
Rate Group I Loans and the Fixed Rate Group II Loans, respectively,
deposited in the Certificate Account with respect to such Payment Date,
(iii) any amount withdrawn from the Capitalized Interest Account
pursuant to Section 8.07 and deposited in the Certificate Account in
respect of the Adjustable Rate Certificates, Class AF-1A Certificates, or
Fixed Rate Group II Certificates, respectively, and
(iv) any amount withdrawn from the Pre-Funding ARM Subaccount, Pre-
Funding Fixed Rate Group I Subaccount or Pre-Funding Fixed Rate Group II
Subaccount, as applicable, pursuant to Section 8.08 and deposited in the
Certificate Account, minus
-----
(b) the sum of
(i) the Amount Held for Future Distribution in respect of the
Adjustable Rate Loans, the Fixed Rate Group I Loans and the Fixed Rate
Group II Loans, respectively ,
(ii) amounts permitted to be withdrawn by the Trustee from the
Certificate Account pursuant to clauses (2) through (5) of Section 8.04(a)
in respect of the Adjustable Rate Loans, the Fixed Rate Group I Loans and
the Fixed Rate Group II Loans, respectively, and
1-2
(iii) any amounts on deposit in the Certificate Account as of the
close of business on the last day of the related Due Period representing
collections in respect of Principal Prepayments in Full (other than any
amounts referred to in Section 2.06(vi)) in respect of Adjustable Rate
Loans, Fixed Rate Group I Loans and Fixed Rate Group II Loans,
respectively, for which a substitution has been made in accordance with
Section 2.06.
"Amount Held for Future Distribution" means, for any Payment Date, and the
-----------------------------------
Adjustable Rate Loans, Fixed Rate Group I Loans and Fixed Rate Group II Loans,
respectively, the total of the amounts held in the Certificate Account in
respect of such Loans on the last day of the preceding Due Period on account of
Advance Payments in respect of such Due Period.
"Applicants" has the meaning assigned in Section 9.06.
---------- ------------
"Authenticating Agent" means any authenticating agent appointed pursuant to
--------------------
Section 9.07.
------------
"Available Funds Pass-Through Rate" means, for any Payment Date, a rate per
---------------------------------
annum equal to the weighted average of the Expense Adjusted Loan Rates on the
then outstanding Adjustable Rate Loans.
"Average Sixty-Day Delinquency Ratio Test" means, to be considered
----------------------------------------
"satisfied" for any Payment Date, that the arithmetic average of the Sixty-Day
Delinquency Ratios for the Fixed Rate Loans or the Adjustable Rate Loans, as
applicable, for such Payment Date and for the two immediately preceding Payment
Dates is less than or equal to 35.00% of the Senior Enhancement Percentage for
the Fixed Rate Certificates or the Adjustable Rate Certificates, as applicable.
"Balloon Loan" means a Loan that provides for the payment of the
------------
unamortized principal balance of such Loan in a single payment at the maturity
of such Loan that is greater than the preceding monthly payments.
"Book-Entry Certificate" means any Certificate registered in the name of
----------------------
the Depository or its nominee, ownership of which is reflected on the books of
the Depository or on the books of a person maintaining an account with such
Depository (directly or as an indirect participant in accordance with the rules
of such Depository).
"Business Day" means any day other than (a) a Saturday or a Sunday, or (b)
------------
another day on which banking institutions in the city in which the Person taking
action hereunder are authorized or obligated by law, executive order, or
governmental decree to be closed.
"Calculation Agent" means the Person who establishes LIBOR with respect to
-----------------
each Interest Reset Period. The Calculation Agent shall be the Trustee unless
the Trustee is unable or unwilling so to act, in which case the Calculation
Agent shall be a financial institution appointed by the Seller.
"Capitalized Interest Account" means a separate trust account created and
----------------------------
maintained pursuant to Section 8.07 in the name of the Trust in an Eligible
Institution.
1-3
"Certificate" means a Certificate for Home Equity Loans, Series 2000-F,
-----------
Class AV-1, Class MV-1, Class MV-2, Class BV-1, Class BV-2, Class AF-1A, Class
AF-1, Class AF-2, Class AF-3, Class AF-4, Class MF-1, Class MF-2, Class BF-1 or
Class BF-2, executed and delivered by the Trustee substantially in the form of
Exhibit A-1, A-2, B-1, B-2, C-1, or C-2, as applicable, but does not include the
Class C Certificate.
"Certificate Account" means a separate trust account created and maintained
-------------------
pursuant to Section 5.05 in the name of the Trust in an Eligible Institution.
"Certificate Owner" means the person who is the beneficial owner of a Book-
-----------------
Entry Certificate or, if Definitive Certificates have been issued,
Certificateholders.
"Certificate Register" means the register maintained pursuant to Section
--------------------
9.02.
"Certificate Registrar" or "Registrar" means the registrar appointed
--------------------- ---------
pursuant to Section 9.02.
"Certificateholder" or "Holder" means the person in whose name a
----------------- ------
Certificate or Class C Certificate is registered on the Certificate Register,
except that, solely for the purposes of giving any consent, waiver, request or
demand pursuant to this Agreement, any Certificate or Class C Certificate
registered in the name of the Originator or the Seller or any of their
Affiliates shall be deemed not to be outstanding and the Percentage Interest
evidenced thereby shall not be taken into account in determining whether the
requisite Percentage Interest necessary to effect any such consent, request,
waiver or demand has been obtained; provided, however, that, solely for the
-------- -------
purpose of determining whether the Trustee is entitled to rely upon any such
consent, waiver, request or demand, only Certificates or Class C Certificate
which the Trustee knows to be so owned shall be so disregarded.
"Class," "Class A," "Class M," "Class B," or "Class C" means pertaining to
----------------------------------------------------
Class A Certificates, Class M Certificates, Class B Certificates and/or the
Class C Certificate, as the case may be.
"Class A Certificates" means the Class AV-1 and Class AF Certificates,
--------------------
collectively.
"Class A Formula Interest Distribution Amount" means, as to each Class of
--------------------------------------------
Class A Certificates and any Payment Date, the sum of (a) one month's interest
(or, as to the first Payment Date, interest from and including the Closing Date
to but excluding December 15, 2000) at (1) the Class AV-1 Pass-Through Rate on
the Class AV-1 Principal Balance, (2) the Class AF-1A Pass-Through Rate on the
Class AF-1A Principal Balance, (3) the Class AF-1 Pass-Through Rate on the Class
AF-1 Principal Balance, (4) the Class AF-2 Pass-Through Rate on the Class AF-2
Principal Balance, (5) the Class AF-3 Pass-Through Rate on the Class AF-3
Principal Balance, and (6) the Class AF-4 Pass-Through Rate on the Class AF-4
Principal Balance, in each case to be calculated immediately prior to such
Payment Date, and (b) the Unpaid Class A Interest Shortfall, if any, with
respect to such Class.
"Class A Interest Shortfall" means, as to each Class of Class A
--------------------------
Certificates and any Payment Date, the amount, if any, by which the Class A
Formula Interest Distribution Amount
1-4
for such Class exceeds the amount distributed to Holders of such Class on such
Payment Date pursuant to Section 8.04(b)(2), 8.04(c)(2), or 8.04(d)(2), as
applicable.
"Class AF Certificates" means the Class AF-1A, Class AF-1, Class AF-2,
---------------------
Class AF-3 and Class AF-4 Certificates.
"Class AF Formula Principal Distribution Amount" means, for any Payment
----------------------------------------------
Date,
(i) if the Payment Date is before the Stepdown Date or a Trigger
Event exists, the sum of the Fixed Rate Group I Formula Principal
Distribution Amount and the Fixed Rate Group II Formula Principal
Distribution Amount; and
(ii) if the Payment Date is on or after the Stepdown Date and no
Trigger Event exists, the excess of (A) the Class AF Principal Balance over
(B) the lesser of (x) 56.80% of the aggregate Scheduled Principal Balances
of the Fixed Rate Loans and (y) the aggregate Scheduled Principal Balances
of the Fixed Rate Loans minus $18,200,000.
"Class AF Group II Certificates" means the Class AF Certificates other than
------------------------------
the Class AF-1A Certificates.
"Class AF Group II Formula Principal Distribution Amount" means, for any
-------------------------------------------------------
Payment Date, the lesser of:
(a) the Class AF Group II Principal Balance and
(b) (i) if the Payment Date is before the Stepdown Date or a Trigger
Event exists, the Fixed Rate Group II Formula Principal Distribution
Amount; and
(ii) if the Payment Date is on or after the Stepdown Date and no
Trigger Event exists, the lesser of (A) the Fixed Rate Group II Formula
Principal Distribution Amount and (B) the Class AF Formula Principal
Distribution Amount minus the Class AF-1A Formula Principal Distribution
Amount.
"Class AF Group II Principal Balance" means the sum of the Class AF-1,
-----------------------------------
Class AF-2, Class AF-3, and Class AF-4 Principal Balance.
"Class AF Principal Balance" means, for any Payment Date, the sum of the
--------------------------
Class Principal Balance of each Class of Class AF Certificates.
"Class AF-1 Certificate" means any one of the Class AF-1 Certificates
----------------------
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit A-1 and evidencing an
interest designated as a "regular interest" for purposes of the REMIC
Provisions.
"Class AF-1 Principal Balance" means, for any Payment Date, the Original
----------------------------
Class AF-1 Principal Balance less all amounts previously distributed to Holders
of Class AF-1 Certificates in respect of principal.
1-5
"Class AF-1A Certificate" means any one of the Class AF-1A Certificates
-----------------------
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit A-1 and evidencing an
interest designated as a "regular interest" for purposes of the REMIC
Provisions.
"Class AF-1A Formula Principal Distribution Amount" means, for any Payment
-------------------------------------------------
Date, the lesser of:
(a) the Class AF-1A Principal Balance and
(b) (i) if the Payment Date is before the Stepdown Date or a Trigger
Event exists, the Fixed Rate Group I Formula Principal Distribution Amount;
and
(ii) if the Payment Date is on or after the Stepdown Date and no
Trigger Event exists, the lesser of (A) the Fixed Rate Group I Formula
Principal Distribution Amount and (B) the Class AF Formula Principal
Distribution Amount.
"Class AF-1A Principal Balance" means, for any Payment Date, the Original
-----------------------------
Class AF-1A Principal Balance less all amounts previously distributed to Holders
of Class AF-1A Certificates in respect of principal.
"Class AF-2 Certificate" means any one of the Class AF-2 Certificates
----------------------
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit A-1 and evidencing an
interest designated as a "regular interest" for purposes of the REMIC
Provisions.
"Class AF-2 Principal Balance" means, for any Payment Date, the Original
----------------------------
Class AF-2 Principal Balance less all amounts previously distributed to Holders
of Class AF-2 Certificates in respect of principal.
"Class AF-3 Certificate" means any one of the Class AF-3 Certificates
----------------------
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit A-1 and evidencing an
interest designated as a "regular interest" for purposes of the REMIC
Provisions.
"Class AF-3 Principal Balance" means, for any Payment Date, the Original
----------------------------
Class AF-3 Principal Balance less all amounts previously distributed to Holders
of Class AF-3 Certificates in respect of principal.
"Class AF-4 Certificate" means any one of the Class AF-4 Certificates
----------------------
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit A-1 and evidencing an
interest designated as a "regular interest" for purposes of the REMIC
Provisions.
"Class AF-4 Principal Balance" means, for any Payment Date, the Original
----------------------------
Class AF-4 Principal Balance less all amounts previously distributed to Holders
of Class AF-4 Certificates in respect of principal.
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"Class AV-1 Available Funds Cap Carryover Amount" means, for any Payment
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Date, an amount equal to the sum of (1) the excess, if any, of (a) one month's
interest (or, as to the first Payment Date, interest from and including the
Closing Date to but excluding December 15, 2000) at the Class AV-1 Pass-Through
Rate (determined without respect to any limitation imposed by the Available
Funds Pass-Through Rate) on the Class AV-1 Principal Balance over (b) the amount
specified in clause (a)(1) of the definition of the term "Class A Formula
Interest Distribution Amount" and (2) the amount of any Class AV-1 Available
Funds Cap Carryover Amount for the preceding Payment Date to the extent not
distributed on such preceding Payment Date and (3) interest accrued on the
amounts described in clauses (1) and (2) above during the accrual period for the
current Payment Date at the Class AV-1 Pass-Through Rate for such Payment Date.
"Class AV-1 Certificate" means any one of the Class AV-1 Certificates
----------------------
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit A-2 and evidencing an
interest designated as a "regular interest" for purposes of the REMIC
Provisions.
"Class AV-1 Formula Principal Distribution Amount" means, for any Payment
------------------------------------------------
Date, the lesser of:
(a) the Class AV-1 Principal Balance and
(b) (i) if the Payment Date is before the Stepdown Date or a Trigger
Event exists, the Formula Principal Distribution Amount; and
(ii) if the Payment Date is on or after the Stepdown Date and no
Trigger Event exists, the excess of (A) the Class AV-1 Principal Balance
over (B) the lesser of (x) 57.00% of the aggregate Scheduled Principal
Balances of the Adjustable Rate Loans or (y) the aggregate Scheduled
Principal Balances of the Adjustable Rate Loans minus $3,150,000.
"Class AV-1 Principal Balance" means, for any Payment Date, the Original
----------------------------
Class AV-1 Principal Balance less all amounts previously distributed to Holders
of Class AV-1 Certificates in respect of principal.
"Class B Certificates" means the Class B-1 and Class B-2 Certificates,
--------------------
collectively.
"Class B-1 Certificates" means the Class BF-1 Certificates and the Class
----------------------
BV-1 Certificates, collectively.
"Class B-2 Certificates" means the Class BF-2 Certificates and the Class
----------------------
BV-2 Certificates, collectively.
"Class BF Formula Principal Distribution Amount" means, for any Payment
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Date,
(i) if the Payment Date is (A) before the Stepdown Date or (B) on or
after the Stepdown Date and a Trigger Event exists, the sum of the Fixed
Rate Group I Formula Principal Distribution Amount and the Fixed Rate Group
II Formula Principal
1-7
Distribution Amount, less any Class AF-1A, Class AF Group II, Class MF-1
and Class MF-2 Formula Principal Distribution Amounts on such Payment Date;
and
(ii) if the Payment Date is on or after the Stepdown Date and no
Trigger Event exists, the excess of (A) the sum of the Class AF, Class MF-
1, Class MF-2, Class BF-1 and Class BF-2 Principal Balances over (B) the
lesser of (x) 94.80% of the aggregate Scheduled Principal Balances of the
Fixed Rate Loans or (y) the aggregate Scheduled Principal Balances of the
Fixed Rate Loans minus $18,200,000.
"Class BF-1 Adjusted Principal Balance" means, for any Payment Date, the
-------------------------------------
Class BF-1 Principal Balance minus the Class BF-1 Liquidation Loss Principal
Amount (if any) for the immediately preceding Payment Date.
"Class BF-1 Certificate" means any one of the Class BF-1 Certificates
----------------------
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit C-1 and evidencing an
interest designated as a "regular interest" for purposes of the REMIC
Provisions.
"Class BF-1 Formula Interest Distribution Amount" means, for any Payment
-----------------------------------------------
Date, the sum of (1) one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December 15, 2000)
at the Class BF-1 Pass-Through Rate on the Class BF-1 Adjusted Principal Balance
and (2) the Unpaid Class BF-1 Interest Shortfall, if any.
"Class BF-1 Formula Liquidation Loss Interest Distribution Amount" means,
----------------------------------------------------------------
as to any Payment Date, the sum of (a) the Class BF-1 Liquidation Loss Interest
Amount, if any, and (b) the Unpaid Class BF-1 Liquidation Loss Interest
Shortfall, if any, for the immediately preceding Payment Date.
"Class BF-1 Formula Principal Distribution Amount" means for any Payment
------------------------------------------------
Date, the lesser of (a) the Class BF-1 Principal Balance and (b) the Class BF
Formula Principal Distribution Amount.
"Class BF-1 Interest Shortfall" means, as to any Payment Date, the amount,
-----------------------------
if any, by which (a) the Class BF-1 Formula Interest Distribution Amount exceeds
(b) the amount distributed to Holders of such Class on such Payment Date
pursuant to Section 8.04(d)(6).
"Class BF-1 Liquidation Loss Interest Amount" means, for any Payment Date,
-------------------------------------------
an amount equal to one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December 15, 2000)
at the Class BF-1 Pass-Through Rate on the Class BF-1 Liquidation Loss Principal
Amount (if any) for the immediately preceding Payment Date.
"Class BF-1 Liquidation Loss Interest Shortfall" means, as to any Payment
----------------------------------------------
Date, the amount, if any, by which (a) the Class BF-1 Formula Liquidation Loss
Interest Distribution Amount exceeds (b) any amount distributed to the Holders
of such Class on such Payment Date pursuant to Section 8.04(d)(14).
1-8
"Class BF-1 Liquidation Loss Principal Amount" means, for any Payment Date,
--------------------------------------------
the lesser of (A) the Class BF-1 Principal Balance (after giving effect to all
distributions of principal on the Class BF-1 Certificates on such Payment Date)
and (B) the Fixed Rate Certificate Liquidation Losses, if any, minus the Class
BF-2 Liquidation Loss Principal Amount, if any, for such Payment Date.
"Class BF-1 Principal Balance" means, for any Payment Date, the Original
----------------------------
Class BF-1 Principal Balance less all amounts previously distributed to Holders
of Class BF-1 Certificates in respect of principal.
"Class BF-2 Certificate" means any one of the Class BF-2 Certificates
----------------------
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit C-1 and evidencing an
interest designated as a "regular interest" for purposes of the REMIC
Provisions.
"Class BF-2 Formula Interest Distribution Amount" means, for any Payment
-----------------------------------------------
Date, the sum of (1) one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December 15, 2000)
at the Class BF-2 Pass-Through Rate on the Class BF-2 Principal Balance and (2)
the Unpaid Class BF-2 Interest Shortfall, if any.
"Class BF-2 Formula Principal Distribution Amount" means, for any Payment
------------------------------------------------
Date, the lesser of:
(a) the Class BF-2 Principal Balance and
(b) the Class BF Formula Principal Distribution Amount minus the Class BF-
1 Formula Principal Distribution Amount.
"Class BF-2 Interest Shortfall" means, as to any Payment Date, the amount,
-----------------------------
if any, by which (a) the Class BF-2 Formula Interest Distribution Amount exceeds
(b) the amount distributed to Holders of such Class on such Payment Date
pursuant to Section 8.04(d)(15)(i).
"Class BF-2 Liquidation Loss Principal Amount" means, for any Payment Date,
--------------------------------------------
the lesser of (A) the Class BF-2 Principal Balance (after giving effect to all
distributions of principal on the Class BF-2 Certificates on such Payment Date)
and (B) the Fixed Rate Certificate Liquidation Losses for such Payment Date.
"Class BF-2 Principal Balance" means, for any Payment Date, the Original
----------------------------
Class BF-2 Principal Balance less the sum of all amounts previously distributed
to Holders of Class BF-2 Certificates in respect of principal and the Class BF-2
Liquidation Loss Principal Amount for such Payment Date.
"Class BV Formula Principal Distribution Amount" means, for any Payment
----------------------------------------------
Date,
(i) if the Payment Date is (A) before the Stepdown Date or (B) on or
after the Stepdown Date and a Trigger Event exists, the Formula Principal
Distribution Amount less the Class AV-1, Class MV-1 and Class MV-2 Formula
Principal Distribution Amounts on such Payment Date; and
1-9
(ii) if the Payment Date is on or after the Stepdown Date and no
Trigger Event exists, the excess of (A) the sum of the Class AV-1, Class
MV-1, Class MV-2, Class BV-1 and Class BV-2 Principal Balances over (B) the
lesser of (x) 97% of the aggregate Scheduled Principal Balances of the
Adjustable Rate Loans or (y) the aggregate Scheduled Principal Balances of
the Adjustable Rate Loans minus $3,150,000.
"Class BV-1 Adjusted Principal Balance" means, for any Payment Date, the
-------------------------------------
Class BV-1 Principal Balance minus the Class BV-1 Liquidation Loss Principal
Amount (if any) for the immediately preceding Payment Date.
"Class BV-1 Available Funds Cap Carryover Amount" means, for any Payment
-----------------------------------------------
Date, an amount equal to the sum of (1) the excess, if any, of (a) one month's
interest (or, as to the first Payment Date, interest from and including the
Closing Date to but excluding December 15, 2000) at the Class BV-1 Pass-Through
Rate (determined without respect to any limitation imposed by the Available
Funds Pass-Through Rate) on the Class BV-1 Adjusted Principal Balance over (b)
the amount specified in clause (1) of the definition of the term "Class BV-1
Formula Interest Distribution Amount" and (2) the amount of any Class BV-1
Available Funds Cap Carryover Amount for the preceding Payment Date to the
extent not distributed on such preceding Payment Date and (3) interest accrued
on the amounts described in clauses (1) and (2) above during the accrual period
for the current Payment Date at the Class BV-1 Pass Through Rate for such
Payment Date.
"Class BV-1 Certificate" means any one of the Class BV-1 Certificates
----------------------
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit C-2 and evidencing an
interest designated as a "regular interest" for purposes of the REMIC
Provisions.
"Class BV-1 Formula Interest Distribution Amount" means, for any Payment
-----------------------------------------------
Date, the sum of (1) one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December 15, 2000)
at the Class BV-1 Pass-Through Rate on the Class BV-1 Adjusted Principal Balance
and (2) the Unpaid Class BV-1 Interest Shortfall, if any.
"Class BV-1 Formula Liquidation Loss Interest Distribution Amount" means,
----------------------------------------------------------------
as to any Payment Date, the sum of (a) the Class BV-1 Liquidation Loss Interest
Amount, if any, and (b) the Unpaid Class BV-1 Liquidation Loss Interest
Shortfall, if any, for the immediately preceding Payment Date.
"Class BV-1 Formula Principal Distribution Amount" means, for any Payment
------------------------------------------------
Date, the lesser of (a) the Class BV-1 Principal Balance and (b) the Class BV
Formula Principal Distribution Amount.
"Class BV-1 Interest Shortfall" means, as to any Payment Date, the amount,
-----------------------------
if any, by which (a) the Class BV-1 Formula Interest Distribution Amount exceeds
(b) the amount distributed to Holders of such Class on such Payment Date
pursuant to Section 8.04(b)(5).
"Class BV-1 Liquidation Loss Interest Amount" means, for any Payment Date,
-------------------------------------------
an amount equal to one month's interest (or, as to the first Payment Date,
interest from and
1-10
including the Closing Date to but excluding December 15, 2000) at the Class BV-1
Pass-Through Rate on the Class BV-1 Liquidation Loss Principal Amount (if any)
for the immediately preceding Payment Date.
"Class BV-1 Liquidation Loss Interest Shortfall" means, as to any Payment
----------------------------------------------
Date, the amount, if any, by which (a) the Class BV-1 Formula Liquidation Loss
Interest Distribution Amount exceeds (b) any amount distributed to the Holders
of such Class on such Payment Date pursuant to Section 8.04(b)(12).
"Class BV-1 Liquidation Loss Principal Amount" means, for any Payment Date,
--------------------------------------------
the lesser of (A) the Class BV-1 Principal Balance (after giving effect to all
distributions of principal on the Class BV-1 Certificates on such Payment Date)
and (B) the Adjustable Rate Certificate Liquidation Losses, if any, minus the
Class BV-2 Liquidation Loss Principal Amount, if any, for such Payment Date.
"Class BV-1 Principal Balance" means, for any Payment Date, the Original
----------------------------
Class BV-1 Principal Balance less all amounts previously distributed to Holders
of Class BV-1 Certificates in respect of principal.
"Class BV-2 Available Funds Cap Carryover Amount" means, for any Payment
-----------------------------------------------
Date, an amount equal to the sum of (1) the excess, if any, of (a) one month's
interest (or, as to the first Payment Date, interest from and including the
Closing Date to but excluding December 15, 2000) at the Class BV-2 Pass-Through
Rate (determined without respect to any limitation imposed by the Available
Funds Pass-Through Rate) on the Class BV-2 Principal Balance over (b) the amount
specified in clause (1) of the definition of the term "Class BV-2 Formula
Interest Distribution Amount" and (2) the amount of any Class BV-2 Available
Funds Cap Carryover Amount for the preceding Payment Date to the extent not
distributed on such preceding Payment Date and (3) interest accrued on the
amounts described in clauses (1) and (2) above during the accrual period for the
current Payment Date at the Class BV-2 Pass Through Rate for such Payment Date.
"Class BV-2 Certificate" means any one of the Class BV-2 Certificates
----------------------
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit C-2 and evidencing an
interest designated as a "regular interest" for purposes of the REMIC
Provisions.
"Class BV-2 Formula Interest Distribution Amount" means, for any Payment
-----------------------------------------------
Date, the sum of (1) one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December 15, 2000)
at the Class BV-2 Pass-Through Rate on the Class BV-2 Principal Balance and (2)
the Unpaid Class BV-2 Interest Shortfall, if any.
"Class BV-2 Formula Principal Distribution Amount" means, for any Payment
------------------------------------------------
Date, the lesser of (a) the Class BV-2 Principal Balance and (b) the Class BV
Formula Principal Distribution Amount minus the Class BV-1 Formula Principal
Distribution Amount.
"Class BV-2 Interest Shortfall" means, as to any Payment Date, the amount,
-----------------------------
if any, by which (a) the Class BV-2 Formula Interest Distribution Amount exceeds
(b) the amount distributed to Holders of such Class on such Payment Date
pursuant to Section 8.04(b)(13).
1-11
"Class BV-2 Liquidation Loss Principal Amount" means, for any Payment Date,
--------------------------------------------
the lesser of (A) the Class BV-2 Principal Balance (after giving effect to all
distributions of principal on the Class BV-2 Certificates on such Payment Date)
and (B) the Adjustable Rate Certificate Liquidation Losses, if any, minus the
Class BV-2 Liquidation Loss Principal Amount, if any, for such Payment Date.
"Class BV-2 Principal Balance" means, for any Payment Date, the Original
----------------------------
Class BV-2 Principal Balance less the sum of all amounts previously distributed
to Holders of Class BV-2 Certificates in respect of principal and the Class BV-2
Liquidation Loss Principal Amount for such Payment Date.
"Class C Certificateholder" means the person in whose name the Class C
-------------------------
Certificate is registered on the Certificate Register.
"Class C Certificate" means a Certificate for Home Equity Loans, Series
-------------------
2000-F, bearing the designation Class C, executed and delivered by the Trustee
substantially in the form of Exhibit I, and evidencing an interest designated as
a "residual interest" for purposes of the REMIC Provisions.
"Class C Distribution Amount" means, for any Payment Date, the amount, if
---------------------------
any, available for distribution to the Class C Certificateholder pursuant to
clauses (b), (c) and (d) of Section 8.04.
"Class M Certificates" means the Class MF-1, Class MF-2, Class MV-1 and
--------------------
Class MV-2 Certificates, collectively.
"Class MF-1 Adjusted Principal Balance" means, for any Payment Date, the
-------------------------------------
Class MF-1 Principal Balance minus the Class MF-1 Liquidation Loss Principal
Amount (if any) for the immediately preceding Payment Date.
"Class MF-1 Certificate" means any one of the Class MF-1 Certificates
----------------------
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit B-1 and evidencing an
interest designated as a "regular interest" for purposes of the REMIC
Provisions.
"Class MF-1 Formula Interest Distribution Amount" means, for any Payment
-----------------------------------------------
Date, the sum of (1) one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December 15, 2000)
at the Class MF-1 Pass-Through Rate on the Class MF-1 Adjusted Principal Balance
and (2) the Unpaid Class MF-1 Interest Shortfall, if any.
"Class MF-1 Formula Liquidation Loss Interest Distribution Amount" means,
----------------------------------------------------------------
as to any Payment Date, the sum of (a) the Class MF-1 Liquidation Loss Interest
Amount, if any, and (b) the Unpaid Class MF-1 Liquidation Loss Interest
Shortfall, if any, for the immediately preceding Payment Date.
"Class MF-1 Formula Principal Distribution Amount" means, for any Payment
------------------------------------------------
Date, the lesser of
1-12
(a) the Class MF-1 Principal Balance and
(b) (i) if the Payment Date is (A) before the Stepdown Date or (B) on or
after the Stepdown Date and a Trigger Event exists, the sum of the Fixed
Rate Group I Formula Principal Distribution Amount and the Fixed Rate Group
II Group Formula Principal Distribution Amount, less the Class AF-1A and
the Class AF Group II Formula Principal Distribution Amounts on such
Payment Date; and
(ii) if the Payment Date is on or after the Stepdown Date and no
Trigger Event exists, the excess of (A) the sum of the Class AF and Class
MF-1 Principal Balances over (B) the lesser of (x) 70.80% of the aggregate
Scheduled Principal Balances of the Fixed Rate Loans or (y) the aggregate
Scheduled Principal Balances of the Fixed Rate Loans minus $18,200,000.
"Class MF-1 Interest Shortfall" means, as to any Payment Date, the amount,
-----------------------------
if any, by which (a) the Class MF-1 Formula Interest Distribution Amount exceeds
(b) the amount distributed to Holders of such Class on such Payment Date
pursuant to Section 8.04(d)(4).
"Class MF-1 Liquidation Loss Interest Amount" means, for any Payment Date,
-------------------------------------------
an amount equal to one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December 15, 2000)
at the Class MF-1 Pass-Through Rate on the Class MF-1 Liquidation Loss Principal
Amount (if any) for the immediately preceding Payment Date.
"Class MF-1 Liquidation Loss Interest Shortfall" means, as to any Payment
----------------------------------------------
Date, the amount, if any, by which (a) the Class MF-1 Formula Liquidation Loss
Interest Distribution Amount exceeds (b) any amount distributed to the Holders
of such Class on such Payment Date pursuant to Section 8.04(d)(12).
"Class MF-1 Liquidation Loss Principal Amount" means, for any Payment Date,
--------------------------------------------
the lesser of (A) the Class MF-1 Principal Balance (after giving effect to all
distributions of principal on the Class MF 1 Certificates on such Payment Date)
and (B) the excess, if any, of the Fixed Rate Certificate Liquidation Losses
over the sum of the Class MF-2, Class BF-1 and Class BF-2 Principal Balances
(after giving effect to all distributions of principal on the Class MF-2, Class
BF-1 and Class BF-2 Certificates on such Payment Date).
"Class MF-1 Principal Balance" means, for any Payment Date, the Original
----------------------------
Class MF-1 Principal Balance less all amounts previously distributed to Holders
of Class MF-1 Certificates in respect of principal.
"Class MF-2 Adjusted Principal Balance" means, for any Payment Date, the
-------------------------------------
Class MF-2 Principal Balance minus the Class MF-2 Liquidation Loss Principal
Amount (if any) for the immediately preceding Payment Date.
"Class MF-2 Certificate" means any one of the Class MF-2 Certificates
----------------------
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit B-1 and evidencing an
interest designated as a "regular interest" for purposes of the REMIC
Provisions.
1-13
"Class MF-2 Formula Interest Distribution Amount" means, for any Payment
-----------------------------------------------
Date, the sum of (1) one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December 15, 2000)
at the Class MF-2 Pass-Through Rate on the Class MF-2 Adjusted Principal Balance
and (2) the Unpaid Class MF-2 Interest Shortfall, if any.
"Class MF-2 Formula Liquidation Loss Interest Distribution Amount" means,
----------------------------------------------------------------
as to any Payment Date, the sum of (a) the Class MF-2 Liquidation Loss Interest
Amount, if any, and (b) the Unpaid Class MF-2 Liquidation Loss Interest
Shortfall, if any, for the immediately preceding Payment Date.
"Class MF-2 Formula Principal Distribution Amount" means, for any Payment
------------------------------------------------
Date, the lesser of:
(a) the Class MF-2 Principal Balance and
(b) (i) if the Payment Date is (A) before the Stepdown Date or (B) on or
after the Stepdown Date and a Trigger Event exists, the sum of the Fixed
Rate Group I Formula Principal Distribution Amount and the Fixed Rate Group
II Formula Principal Distribution Amount, less the Class AF-1A, Class AF
Group II and Class MF-1 Formula Principal Distribution Amounts on such
Payment Date; and
(ii) if the Payment Date is on or after the Stepdown Date and no
Trigger Event exists, the excess of (A) the sum of the Class AF, Class MF-1
and Class MF-2 Principal Balances over (B) the lesser of (x) 80.80% of the
aggregate Scheduled Principal Balances of the Fixed Rate Loans or (y) the
aggregate Scheduled Principal Balances of the Fixed Rate Loans minus
$18,200,000.
"Class MF-2 Interest Shortfall" means, as to any Payment Date, the amount,
-----------------------------
if any, by which (a) the Class MF-2 Formula Interest Distribution Amount exceeds
(b) the amount distributed to Holders of such Class on such Payment Date
pursuant to Section 8.04(d)(5).
"Class MF-2 Liquidation Loss Interest Amount" means, for any Payment Date,
-------------------------------------------
an amount equal to one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December 15, 2000)
at the Class MF-2 Pass-Through Rate on the Class MF-2 Liquidation Loss Principal
Amount (if any) for the immediately preceding Payment Date.
"Class MF-2 Liquidation Loss Interest Shortfall" means, as to any Payment
----------------------------------------------
Date, the amount, if any, by which (a) the Class MF-2 Formula Liquidation Loss
Interest Distribution Amount exceeds (b) any amount distributed to the Holders
of such Class on such Payment Date pursuant to Section 8.04(d)(13).
"Class MF-2 Liquidation Loss Principal Amount" means, for any Payment Date,
--------------------------------------------
the lesser of (A) the Class MF-2 Principal Balance (after giving effect to all
distributions of principal on the Class MF-2 Certificates on such Payment Date)
and (B) the excess, if any, of the Fixed Rate Certificate Liquidation Losses
over the sum of the Class BF-1 and Class BF-2 Principal Balances (after giving
effect to all distributions of principal on the Class BF-1 and Class BF-2
Certificates on such Payment Date).
1-14
"Class MF-2 Principal Balance" means, for any Payment Date, the Original
----------------------------
Class MF-2 Principal Balance less all amounts previously distributed to Holders
of Class MF-2 Certificates in respect of principal.
"Class MV-1 Adjusted Principal Balance" means, for any Payment Date, the
-------------------------------------
Class MV-1 Principal Balance minus the Class MV-1 Liquidation Loss Principal
Amount (if any) for the immediately preceding Payment Date.
"Class MV-1 Available Funds Cap Carryover Amount" means, for any Payment
-----------------------------------------------
Date, an amount equal to the sum of (1) the excess, if any, of (a) one month's
interest (or, as to the first Payment Date, interest from and including the
Closing Date to but excluding December 15, 2000) at the Class MV-1 Pass-Through
Rate (determined without respect to any limitation imposed by the Available
Funds Pass-Through Rate) on the Class MV-1 Adjusted Principal Balance over (b)
the amount specified in clause (1) of the definition of the term "Class MV-1
Formula Interest Distribution Amount" and (2) the amount of any Class MV-1
Available Funds Cap Carryover Amount for the preceding Payment Date to the
extent not distributed on such preceding Payment Date and (3) interest accrued
on the amounts described in clauses (1) and (2) above during the accrual period
for the current Payment Date at the Class MV-1 Pass Through Rate for such
Payment Date.
"Class MV-1 Certificate" means any one of the Class MV-1 Certificates
----------------------
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit B-2 and evidencing an
interest designated as a "regular interest" for purposes of the REMIC
Provisions.
"Class MV-1 Formula Interest Distribution Amount" means, for any Payment
-----------------------------------------------
Date, the sum of (1) one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December 15, 2000)
at the Class MV-1 Pass-Through Rate on the Class MV-1 Adjusted Principal Balance
and (2) the Unpaid Class MV-1 Interest Shortfall, if any.
"Class MV-1 Formula Liquidation Loss Interest Distribution Amount" means,
----------------------------------------------------------------
as to any Payment Date, the sum of (a) the Class MV-1 Liquidation Loss Interest
Amount, if any, and (b) the Unpaid Class MV-1 Liquidation Loss Interest
Shortfall, if any, for the immediately preceding Payment Date.
"Class MV-1 Formula Principal Distribution Amount" means, for any Payment
------------------------------------------------
Date, the lesser of:
(a) the Class MV-1 Principal Balance and
(b) (i) if the Payment Date is (A) before the Stepdown Date or (B) on or
after the Stepdown Date and a Trigger Event exists, the Formula Principal
Distribution Amount less the Class AV-1 Formula Principal Distribution
Amount on such Payment Date; and
(ii) if the Payment Date is on or after the Stepdown Date and no
Trigger Event exists, the excess of (A) the sum of the Class AV-1 and Class
MV-1 Principal Balances over (B) the lesser of (x) 72.00% of the aggregate
Scheduled Principal Balances of the
1-15
Adjustable Rate Loans or (y) the aggregate Scheduled Principal Balances of
the Adjustable Rate Loans minus $3,150,000.
"Class MV-1 Interest Shortfall" means, as to any Payment Date, the amount,
-----------------------------
if any, by which (a) the Class MV-1 Formula Interest Distribution Amount exceeds
(b) the amount distributed to Holders of such Class on such Payment Date
pursuant to Section 8.04(b)(3).
"Class MV-1 Liquidation Loss Interest Amount" means, for any Payment Date,
-------------------------------------------
an amount equal to one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December 15, 2000)
at the Class MV-1 Pass-Through Rate on the Class MV-1 Liquidation Loss Principal
Amount (if any) for the immediately preceding Payment Date
"Class MV-1 Liquidation Loss Interest Shortfall" means, as to any Payment
----------------------------------------------
Date, the amount, if any, by which (a) the Class MV-1 Formula Liquidation Loss
Interest Distribution Amount exceeds (b) any amount distributed to the Holders
of such Class on such Payment Date pursuant to Section 8.04(b)(10).
"Class MV-1 Liquidation Loss Principal Amount" means, for any Payment Date,
--------------------------------------------
the lesser of (A) the Class MV-1 Principal Balance (after giving effect to all
distributions of principal on the Class MV-1 Certificates on such Payment Date)
and (B) the excess, if any, of the Adjustable Rate Certificate Liquidation
Losses over the sum of the Class MV-2, Class BV-1 and Class BV-2 Principal
Balances (after giving effect to all distributions of principal on the Class MV-
2, Class BV-1 and Class BV-2 Certificates on such Payment Date).
"Class MV-1 Principal Balance" means, for any Payment Date, the Original
----------------------------
Class MV-1 Principal Balance less all amounts previously distributed to Holders
of Class MV-1 Certificates in respect of principal.
"Class MV-2 Adjusted Principal Balance" means, for any Payment Date, the
-------------------------------------
Class MV-2 Principal Balance minus the Class MV-2 Liquidation Loss Principal
Amount (if any) for the immediately preceding Payment Date.
"Class MV-2 Available Funds Cap Carryover Amount" means, for any Payment
-----------------------------------------------
Date, an amount equal to the sum of (1) the excess, if any, of (a) one month's
interest (or, as to the first Payment Date, interest from and including the
Closing Date to but excluding December 15, 2000) at the Class MV-2 Pass-Through
Rate (determined without respect to any limitation imposed by the Available
Funds Pass-Through Rate) on the Class MV-2 Adjusted Principal Balance over (b)
the amount specified in clause (1) of the definition of the term "Class MV-2
Formula Interest Distribution Amount" and (2) the amount of any Class MV-2
Available Funds Cap Carryover Amount for the preceding Payment Date to the
extent not distributed on such preceding Payment Date and (3) interest accrued
on the amounts described in clauses (1) and (2) above during the accrual period
for the current Payment Date at the Class MV-2 Pass Through Rate for such
Payment Date.
"Class MV-2 Certificate" means any one of the Class MV-2 Certificates
----------------------
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form
1-16
set forth in Exhibit B-2 and evidencing an interest designated as a "regular
interest" for purposes of the REMIC Provisions.
"Class MV-2 Formula Interest Distribution Amount" means, for any Payment
-----------------------------------------------
Date, the sum of (1) one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December 15, 2000)
at the Class MV-2 Pass-Through Rate on the Class MV-2 Adjusted Principal Balance
and (2) the Unpaid Class MV-2 Interest Shortfall, if any.
"Class MV-2 Formula Liquidation Loss Interest Distribution Amount" means,
----------------------------------------------------------------
as to any Payment Date, the sum of (a) the Class MV-2 Liquidation Loss Interest
Amount, if any, and (b) the Unpaid Class MV-2 Liquidation Loss Interest
Shortfall, if any, for the immediately preceding Payment Date.
"Class MV-2 Formula Principal Distribution Amount" means, for any Payment
------------------------------------------------
Date, the lesser of:
(a) the Class MV-2 Principal Balance and
(b) (i) if the Payment Date is (A) before the Stepdown Date or (B) on or
after the Stepdown Date and a Trigger Event exists, the Formula Principal
Distribution Amount less the Class AV-1 and Class MV-1 Formula Principal
Distribution Amounts on such Payment Date; and
(ii) if the Payment Date is on or after the Stepdown Date and no
Trigger Event exists, the excess of (A) the sum of the Class AV-1, Class
MV-1 and Class MV-2 Principal Balances over (B) the lesser of (x) 82.00% of
the aggregate Scheduled Principal Balances of the Adjustable Rate Loans or
(y) the aggregate Scheduled Principal Balances of the Adjustable Rate Loans
minus $3,150,000.
"Class MV-2 Interest Shortfall" means, as to any Payment Date, the amount,
-----------------------------
if any, by which (a) the Class MV-2 Formula Interest Distribution Amount exceeds
(b) the amount distributed to Holders of such Class on such Payment Date
pursuant to Section 8.04(b)(4).
"Class MV-2 Liquidation Loss Interest Amount" means, for any Payment Date,
-------------------------------------------
an amount equal to one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December 15, 2000)
at the Class MV-2 Pass-Through Rate on the Class MV-2 Liquidation Loss Principal
Amount (if any) for the immediately preceding Payment Date.
"Class MV-2 Liquidation Loss Interest Shortfall" means, as to any Payment
----------------------------------------------
Date, the amount, if any, by which (a) the Class MV-2 Formula Liquidation Loss
Interest Distribution Amount exceeds (b) any amount distributed to the Holders
of such Class on such Payment Date pursuant to Section 8.04(b)(11).
"Class MV-2 Liquidation Loss Principal Amount" means, for any Payment Date,
--------------------------------------------
the lesser of (A) the Class MV-2 Principal Balance (after giving effect to all
distributions of principal on the Class MV-2 Certificates on such Payment Date)
and (B) the excess, if any, of
1-17
the Adjustable Rate Certificate Liquidation Losses over the sum of the Class BV-
1 and Class BV-2 Principal Balances (after giving effect to all distributions of
principal on the Class BV-1 and Class BV-2 Certificates on such Payment Date).
"Class MV-2 Principal Balance" means, for any Payment Date, the Original
----------------------------
Class MV-2 Principal Balance less all amounts previously distributed to Holders
of Class MV-2 Certificates in respect of principal.
"Class Principal Balance" means any of the Class AV-1, Class MV-1, Class
-----------------------
MV-2, Class BV-1, Class BV-2, Class AF-1A, Class AF-1, Class AF-2, Class AF-3,
Class AF-4, Class MF-1, Class MF-2, Class BF-1, or Class BF-2 Principal
Balances.
"Closing Date" means October 31, 2000.
------------
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Combined LTV" means, with respect to any Loan, the percentage obtained by
------------
dividing (i) the sum of (a) the current principal balance of such Loan, plus (b)
the outstanding principal balance, as of the date of origination of such Loan,
of any loan secured by a prior lien on the property which secures the Loan (the
"Collateral"), by (ii) the lesser of (a) the appraised value of the Collateral
based on an appraisal made for the originator of the Loan by an independent fee
appraiser (or by an employee of the Originator who is a licensed appraiser) at
the time of origination of the Loan, and (b) the sales price of the Collateral
at the time of origination of the Loan; provided that, in the case of a Loan the
--------
proceeds of which were used to refinance an existing mortgage loan, the amount
described in clause (ii)(a) shall be the amount to be used for purposes of
clause (ii).
"Computer Tape" means the computer tape generated by the Originator which
-------------
provides information relating to the Loans and which was used by the Originator
in selecting the Loans, and includes the master file and the history file.
"Corporate Trust Office" means the office of the Trustee at which at any
----------------------
particular time its corporate trust business shall be principally administered,
which office at the date of the execution of this Agreement is located at the
address set forth in Section 12.09.
"Counsel for the Originator" means ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Professional
--------------------------
Association, or other legal counsel for the Originator.
"Counsel for the Seller" means ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Professional Association,
----------------------
or other legal counsel for the Seller.
1-18
"Cumulative Realized Loss Ratio" means, for any Payment Date:
------------------------------
(a) with respect to the Fixed Rate Loans, a fraction, expressed as a
percentage, the numerator of which is the Cumulative Realized Losses for
the Fixed Rate Loans for that Payment Date and the denominator of which is
the sum of the Cut-off Date Principal Balances of all Fixed Rate Loans; and
(b) with respect to the Adjustable Rate Loans, a fraction, expressed as a
percentage, the numerator of which is the Cumulative Realized Losses for
the Adjustable Rate Loans for that Payment Date and the denominator of
which is the sum of the Cut-off Date Principal Balances of all Adjustable
Rate Loans.
"Cumulative Realized Losses" means, for any Payment Date, the sum of the
--------------------------
Realized Losses for the Fixed Rate Loans or the Adjustable Rate Loans, as
applicable, for that Payment Date and each preceding Payment Date since the Cut-
off Date.
"Cumulative Realized Losses Test" means, to be considered "satisfied" for
-------------------------------
any Payment Date, that the Cumulative Realized Loss Ratio for the Fixed Rate
Loans or Adjustable Rate Loans, as applicable, for such Payment Date is less
than or equal to the percentage set forth below:
Adjustable
Fixed Rate Loans Rate Loans
Payment Date Percentage Percentage
------------ ---------- ----------
December 2003 - November 2004 4.00% 3.75%
December 2004 - November 2005 5.00% 4.50%
December 2005 - November 2007 5.50% 5.00%
December 2007 and thereafter 5.75% 5.25%
"Custodian" means at any time an Eligible Institution, or a financial
---------
institution organized under the laws of the United States or any State, which is
not an Affiliate of the Originator, which is subject to supervision and
examination by Federal or State authorities and whose commercial paper or
unsecured long-term debt (or, in the case of a member of a bank holding company
system, the commercial paper or unsecured long-term debt of such bank holding
company) has been rated A-1+ by S&P, F-1+ by Fitch and P-1 by ▇▇▇▇�'� in the
case of commercial paper, or BBB+ or higher by each of S&P and Fitch and Baa1 or
higher by ▇▇▇▇�'� in the case of unsecured long-term debt, as is acting at such
time as Custodian of the Loan Files pursuant to Section 4.01.
"Cut-off Date" means, with respect to each Initial or Additional Loan,
------------
August 31, 2000 (or the date of origination, if later), and for each Subsequent
Loan, the last day of either the month in which the related Subsequent Transfer
Date occurs or the preceding month, as specified by the Seller in the related
Subsequent Transfer Instrument.
"Cut-off Date Pool Principal Balance" means the aggregate of the Cut-off
-----------------------------------
Date Principal Balances of all Loans.
1-19
"Cut-off Date Principal Balance" means, as to any Loan, the unpaid
------------------------------
principal balance thereof at the applicable Cut-off Date, after giving effect to
all installments of principal due on or prior thereto.
"Defaulted Loan" means a Loan with respect to which the Servicer commenced
--------------
foreclosure proceedings, made a sale of such Loan to a third party for
foreclosure or enforcement, or as to which there was a Delinquent Payment 180 or
more days past due.
"Definitive Certificates" has the meaning assigned in Section 9.02(e).
-----------------------
"Delinquent Payment" means, as to any Loan, with respect to any Due Period,
------------------
any payment or portion of a payment that was originally scheduled to be made
during such Due Period under such Loan (after giving effect to any reduction in
the principal amount deemed owed on such Loan by the Obligor) and was not
received or applied during such Due Period and deposited in the Certificate
Account, whether or not any payment extension has been granted by the Servicer
and whether or not such Loan is subject to a cram-down provision in any
bankruptcy proceeding; provided, however, that with respect to any Liquidated
-------- -------
Loan, the payment scheduled to be made in the Due Period in which such Loan
became a Liquidated Loan shall not be deemed a Delinquent Payment.
"Depository" means the initial Depository, The Depository Trust Company,
----------
the nominee of which is Cede & Co., as the registered Holder of (i) one Class
AV-1 Certificate evidencing $168,000,000 in Original Class AV-1 Principal
Balance, (ii) one Class MV-1 Certificate evidencing $15,750,000 in Original
Class MV-1 Principal Balance, (iii) one Class MV-2 Certificate evidencing
$10,500,000 in Original Class MV-2 Principal Balance, (iv) one Class BV-1
Certificate evidencing $9,450,000 in Original Class BV-1 Principal Balance, (v)
one Class BV-2 Certificate evidencing $6,300,000 in Original Class BV-2
Principal Balance, (vi) one Class AF-1A Certificate evidencing $200,000,000 in
Original Class AF-1A Principal Balance, (vii) one Class AF-1 Certificate
evidencing $200,000,000 in Original Class AF-1 Principal Balance, (viii) one
Class AF-2 Certificate evidencing $25,000,000 in Original Class AF-2 Principal
Balance, (ix) one Class AF-3 Certificate evidencing $90,000,000 in Original
Class AF-3 Principal Balance, (x) one Class AF-4 Certificate evidencing
$52,000,000 in Original Class AF-4 Principal Balance, (xi) one Class MF-1
Certificate evidencing $49,000,000 in Original Class MF-1 Principal Balance,
(xii) one Class MF-2 Certificate evidencing $35,000,000 in Original Class MF-2
Principal Balance, (xiii) one Class BF-1 Certificate evidencing $28,000,000 in
Original Class BF-1 Principal Balance and (xiv) one Class BF-2 Certificate
evidencing $21,000,000 in Original Class BF-2 Principal Balance, and any
permitted successor depository. The Depository shall at all times be a
"clearing corporation" as defined in Section 8-102(5) of the Uniform Commercial
Code of the State of New York.
"Depository Participant" means a broker, dealer, bank or other financial
----------------------
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date" means the second Business Day preceding each Payment
------------------
Date during the term of this Agreement.
1-20
"Disqualified Organization" has the meaning assigned in Section 9.02(b)(3).
-------------------------
"Distribution Amount" means, as to any Payment Date and each Class of
-------------------
Certificates and the Class C Certificate, the amount available for distribution
in respect of such Class in accordance with the priorities described in Sections
8.04(b), 8.04(c) and 8.04(d).
"Due Period" means, for any Payment Date after the first Payment Date, a
----------
calendar month during the term of this Agreement and, for the first Payment
Date, the calendar months of September, October and November.
"Electronic Ledger" means the electronic master record of promissory notes
-----------------
of the Originator.
"Eligible Account" means, at any time, an account which is any of the
----------------
following: (i) an account maintained with an Eligible Institution; (ii) an
account or accounts the deposits in which are fully insured by either the Bank
Insurance Fund or the Savings Association Insurance Fund of the Federal Deposit
Insurance Corporation; (iii) a trust account (which shall be a "segregated trust
account") maintained with the corporate trust department of a federal or state
chartered depository institution or trust company with trust powers and acting
in its fiduciary capacity for the benefit of the Trustee hereunder, which
depository institution or trust company shall have capital and surplus of not
less than $50,000,000; or (iv) an account that will not cause any of the Rating
Agencies to downgrade or withdraw its then-current rating assigned to the
Certificates, as evidenced in writing by each of the Rating Agencies.
"Eligible Institution" means any depository institution (which may be the
--------------------
Trustee or an Affiliate of the Trustee) organized under the laws of the United
States or any State, the deposits of which are insured to the full extent
permitted by law by the Federal Deposit Insurance Corporation, which is subject
to supervision and examination by Federal or State authorities and whose short-
term deposits have been rated A-1+ by S&P, F-1+ by Fitch (if rated by Fitch) and
P-1 by ▇▇▇▇�'� (if rated by ▇▇▇▇�'�) or whose unsecured long-term debt has been
rated in one of the two highest rating categories by S&P and Fitch (if rated by
Fitch) and ▇▇▇▇�'�(if rated by ▇▇▇▇�'�).
"Eligible Investments" has the meaning assigned in Section 5.05(b).
--------------------
"Eligible Servicer" means the Originator or any Person which is qualified
-----------------
to act as Servicer of the Loans under applicable federal and state laws and
regulations and services home equity loans with an outstanding principal balance
of not less than $100,000,000.
"Eligible Substitute Loan" means, as to (1) any Replaced Loan for which an
------------------------
Eligible Substitute Loan is being substituted pursuant to Section 3.06(b), and
(2) any Prepaid Loan for which an Eligible Substitute Loan is being substituted
pursuant to Section 2.06, a Loan that (a) as of the date of its substitution,
satisfies all of the representations and warranties (which, except when
expressly stated to be as of origination, shall be deemed to be made as of the
date of its substitution rather than as of the applicable Cut-off Date or the
Closing Date) in Sections 3.02 and 3.03 and does not cause any of the
representations and warranties in Sections 3.03, 3.04 and 3.05, after giving
effect to such substitution, to be incorrect, (b) after giving effect to the
scheduled payment due in the month of such substitution, has a Scheduled
Principal Balance that
1-21
is not greater than the Scheduled Principal Balance of such Replaced Loan or,
but for such Principal Prepayment in Full, the Scheduled Principal Balance of
such Prepaid Loan, as the case may be, (c) has a Loan Interest Rate that is at
least equal to the Loan Interest Rate of such Replaced Loan or Prepaid Loan, as
the case may be, (d) has a remaining term to scheduled maturity that is not
greater than the remaining term to scheduled maturity of the Replaced Loan or
Prepaid Loan, as the case may be, (e) is of the same type (viz., Fixed-Rate
----
Group I Loan or Adjustable Rate Loan) as the Replaced Loan or Prepaid Loan, as
the case may be, (f) if an Adjustable Rate Loan, bears interest at a Loan
Interest Rate that (i) is subject to adjustment based on the same index as the
Replaced Loan or Prepaid Loan, as the case may be, (ii) is calculated by adding
a specified percentage amount (the "gross margin") to the index that is no less
than the gross margin on the Replaced Loan or Prepaid Loan, as the case may be,
and (iii) is subject to a minimum rate of interest no less than the minimum rate
of interest on the Replaced Loan or Prepaid Loan, as the case may be, and a
maximum rate of interest no more than 1.0% greater than the rate of interest on
the Replaced Loan or Prepaid Loan, as the case may be, (g) as of the date of its
origination, was identified by the Originator under its standard underwriting
criteria as the same credit grade as the Replaced Loan or Prepaid Loan, as the
case may be, (h) the mortgage securing such Loan is in a lien position that is
the same or better than the mortgage securing the Replaced Loan or Prepaid Loan,
as the case may be, and (i) the Combined LTV of such Loan is not more than 100
basis points higher than the Combined LTV of the Replaced Loan or Prepaid Loan,
as the case may be.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended.
"Errors and Omissions Protection Policy" means the employee errors and
--------------------------------------
omissions policy maintained by the Servicer or any similar replacement policy
covering errors and omissions by the Servicer's employees, and meeting the
requirements of Section 5.09, all as such policy relates to Loans comprising a
portion of the corpus of the Trust.
"Event of Termination" has the meaning assigned in Section 7.01.
--------------------
"Expense Adjusted Loan Rate" means, with respect to any Adjustable Rate
--------------------------
Loan, the then applicable mortgage rate thereon, minus the Expense Fee Rate.
"Expense Fee Rate" means .50%.
----------------
"Federal Bankruptcy Code" means 11 U.S.C. Section 101 et seq.
-----------------------
"FHA-Insured Loan" means a home equity loan that has been or is being
----------------
reported to the Federal Housing Administration, or any successor thereto
("FHA"), as eligible for credit insurance provided by FHA pursuant to Title I of
the National Housing Act.
"Fidelity Bond" means the fidelity bond maintained by the Servicer or any
-------------
similar replacement bond, meeting the requirements of Section 5.09, as such bond
relates to Loans comprising a portion of the corpus of the Trust.
"Final Payment Date" means the Payment Date on which the final distribution
------------------
in respect of the Certificates will be made pursuant to Section 12.04.
1-22
"Fitch" means Fitch, Inc., or any successor thereto; provided that, if
----- --------
Fitch no longer has a rating outstanding on any Class of the Certificates, then
references herein to "Fitch" shall be deemed to refer to the NRSRO then rating
any Class of the Certificates (or, if more than one such NRSRO is then rating
any Class of the Certificates, to such NRSRO as may be designated by the
Servicer), and references herein to ratings by or requirements of Fitch shall be
deemed to have the equivalent meanings with respect to ratings by or
requirements of such NRSRO.
"Fixed Rate Certificates" means the Class AF, Class MF-1, Class MF-2, Class
-----------------------
BF-1 and Class BF-2 Certificates, collectively.
"Fixed Rate Certificate Liquidation Losses" means, for any Payment Date,
-----------------------------------------
the excess, if any, of (a) the aggregate Certificate Principal Balances of the
Fixed Rate Certificates, minus all distributions of principal on the Fixed Rate
Certificates on such Payment Date, over (b) the sum of the aggregate Scheduled
Principal Balances of the Fixed Rate Loans and the Prefunded Fixed Rate Group I
Amount and the Prefunded Fixed Rate Group II Amount for such Payment Date.
"Fixed Rate Group I Formula Principal Distribution Amount" means, for any
--------------------------------------------------------
Payment Date, the lesser of (A) the Class AF-1A Principal Balance, or (B) the
sum of the following amounts with respect to the related Due Period, in each
case computed in accordance with the method specified in the relevant Fixed Rate
Group I Loan:
(i) all scheduled payments of principal due on each outstanding
Fixed Rate Group I Loan during the prior Due Period as specified in the
amortization schedule at the time applicable thereto (after adjustments for
previous Partial Principal Prepayments and after any adjustment to such
amortization schedule by reason of any bankruptcy of an Obligor or similar
proceeding or any moratorium or similar waiver or grace period); plus
(ii) the aggregate Scheduled Principal Balances of all Fixed Rate
Group I Loans repurchased, and all amounts deposited in lieu of the
repurchase of any Fixed Rate Group I Loan, during the prior Due Period
pursuant to Section 3.06(a) or, in the event of a substitution of a Fixed
Rate Group I Loan in accordance with Section 2.06 or Section 3.06(b), any
amount required to be deposited by the Servicer in the Certificate Account
during the prior Due Period pursuant to Section 2.06(vi) or Section
3.06(b)(v); plus
(iii) the aggregate Scheduled Principal Balances of all Fixed Rate
Group I Loans that became Liquidated Loans during the prior Due Period plus
the amount of any reduction in principal balance of any Fixed Rate Group I
Loan during the prior Due Period pursuant to bankruptcy proceedings
involving the related Obligor; plus
(iv) all Partial Principal Prepayments applied and all Principal
Prepayments in Full received during the prior Due Period with respect to
the Fixed Rate Group I Loans; plus
(v) any amount described in clauses (i) through (iv) above that was
not previously distributed because of an insufficient amount of funds
available in the Certificate Account; plus
1-23
(vi) on the Post-Funding Payment Date, any amount withdrawn from the
Pre-Funding Fixed Rate Group I Subaccount and deposited in the Certificate
Account.
"Fixed Rate Group I Loan" means each closed-end home equity loan identified
-----------------------
as such in the List of Loans, including, without limitation, all related
mortgages, deeds of trust and security deeds and any and all rights to receive
payments due pursuant thereto after the applicable Cut-off Date.
"Fixed Rate Group II Certificates" means the Class AF Group II, Class BF-1,
--------------------------------
Class BF-2, Class MF-1, and Class MF-2 Certificates.
"Fixed Rate Group II Formula Principal Distribution Amount" means, for any
---------------------------------------------------------
Payment Date, the sum of the following amounts with respect to the related Due
Period, in each case computed in accordance with the method specified in the
relevant Fixed Rate Loan:
(i) all scheduled payments of principal due on each outstanding
Fixed Rate Loan during the prior Due Period as specified in the
amortization schedule at the time applicable thereto (after adjustments for
previous Partial Principal Prepayments and after any adjustment to such
amortization schedule by reason of any bankruptcy of an Obligor or similar
proceeding or any moratorium or similar waiver or grace period); plus
(ii) the aggregate Scheduled Principal Balance of all Fixed Rate
Loans repurchased, and all amounts deposited in lieu of the repurchase of
any Fixed Rate Loan, during the prior Due Period pursuant to Section 2.06
or Section 3.06(a) or, in the event of a substitution of a Fixed Rate Loan
in accordance with Section 3.06(b), any amount required to be deposited by
the Servicer in the Certificate Account during the prior Due Period
pursuant to Section 2.06(vi) or Section 3.06(b)(v); plus
(iii) the aggregate Scheduled Principal Balance of all Fixed Rate
Loans that became Liquidated Loans during the prior Due Period plus the
amount of any reduction in principal balance of any Fixed Rate Loan during
the prior Due Period pursuant to bankruptcy proceedings involving the
related Obligor; plus (iv) all Partial Principal Prepayments applied and
all Principal Prepayments in Full received during the prior Due Period with
respect to the Fixed Rate Loans; plus
(v) any amount described in clauses (i) through (iv) above that was
not previously distributed because of an insufficient amount of funds
available in the Certificate Account; plus
(vi) on the Post-Funding Payment Date, any amount withdrawn from the
Pre-Funding Fixed Rate Group II Subaccount and deposited in the Certificate
Account; minus
-----
(vii) the Fixed Rate Group I Formula Principal Distribution Amount.
"Fixed Rate Group II Loan" means each closed-end home equity loan
------------------------
identified as such in the List of Loans, including, without limitation, all
related mortgages, deeds of trust and security deeds and any and all rights to
receive payments due pursuant thereto after the applicable Cut-off Date.
1-24
"Fixed Rate Loan" means each Fixed Rate Group I Loan or Fixed Rate Group II
---------------
Loan.
"Formula Distribution Amount" means, for any Payment Date and each Class of
---------------------------
Certificates, the amount distributable in respect of such Class in accordance
with the priorities described in Sections 8.04(b), 8.04(c) and 8.04(d), assuming
a sufficient Amount Available for the Adjustable Rate Certificates, the Class
AF-1A Certificates and the Class AF Group II Certificates.
"Formula Principal Distribution Amount" means, for any Payment Date, the
-------------------------------------
sum of:
(i) all scheduled payments of principal due on each outstanding
Loan during the prior Due Period as specified in the amortization schedule
at the time applicable thereto (after adjustments for previous Partial
Principal Prepayments and after any adjustment to such amortization
schedule by reason of any bankruptcy of an Obligor or similar proceeding or
any moratorium or similar waiver or grace period); plus
(ii) all Partial Principal Prepayments applied and all Principal
Prepayments in Full received during the prior Due Period with respect to
the Loans; plus
(iii) the aggregate Scheduled Principal Balance of all Loans that
became Liquidated Loans during the prior Due Period plus the amount of any
reduction in principal balance of any Loan during the prior Due Period
pursuant to bankruptcy proceedings involving the related Obligor; plus
(iv) the aggregate Scheduled Principal Balance of all Loans
repurchased, and all amounts deposited in lieu of the repurchase of any
Loan, during the prior Due Period pursuant to Section 2.06 or Section
3.06(a) or, in the event of a substitution of a Loan in accordance with
Section 3.06(b), any amount required to be deposited by the Servicer in the
Certificate Account during the prior Due Period pursuant to Section
2.06(vi) or Section 3.06(b)(v); plus
(v) any amount described in clauses (i) through (iv) above that was
not previously distributed because of an insufficient amount of funds
available in the Certificate Account; plus
(vi) on the Post-Funding Payment Date, any amount withdrawn from the
Pre-Funding ARM Subaccount and deposited in the Certificate Account; minus
(vii) the sum of the Fixed Rate Group I Formula Principal
Distribution Amount and the Fixed Rate Group II Formula Principal
Distribution Amount.
"GNMA" means the Government National Mortgage Association, or any successor
----
thereto.
"Independent" means, when used with respect to any specified Person, any
-----------
Person who (i) is in fact independent of the Originator, the Servicer and the
Seller, (ii) does not have any direct financial interest or any material
indirect financial interest in the Originator, the Servicer, the Seller or an
Affiliate of the Originator, the Servicer or the Seller, and (iii) is not
connected
1-25
with the Originator, the Servicer or the Seller as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions. Whenever it is provided herein that any Independent Person's opinion
or certificate shall be furnished to the Trustee, such opinion or certificate
shall state that the signatory has read this definition and is Independent
within the meaning set forth herein.
"Initial Fixed Rate Group I Loan" means an Initial Loan that is a Fixed
-------------------------------
Rate Group I Loan.
"Initial Fixed Rate Group II Loan" means an Initial Loan that is a Fixed
--------------------------------
Rate Group II Loan.
"Initial Fixed Rate Loan" means an Initial Loan that is a Fixed Rate Loan.
-----------------------
"Initial Loan" means a Loan identified as such on the List of Loans
------------
attached hereto, the aggregate Cut-off Date Principal Balance of which Loans is
$679,403,205.08.
"Interest Reset Period" means, with respect to any Payment Date, the period
---------------------
from and including the prior Payment Date (or, with respect to the first Payment
Date, from and including the Closing Date) to but excluding such Payment Date.
"LIBOR" means, with respect to any Interest Reset Period, the offered rate,
-----
as established by the Calculation Agent, for United States dollar deposits for
one month that appears on Telerate Page 3750 as of 11:00 A.M., London time, on
the LIBOR Determination Date for such Interest Reset Period. If on any LIBOR
Determination Date the offered rate does not appear on Telerate Page 3750, the
Calculation Agent will request each of the reference banks (which shall be major
banks that are engaged in transactions in the London interbank market selected
by the Calculation Agent) to provide the Trustee with its offered quotation for
United States dollar deposits for one month to prime banks in the London
interbank market as of 11:00 A.M., London time, on such date. If at least two
reference banks provide the Calculation Agent with such offered quotations,
LIBOR on such date will be the arithmetic mean, rounded upwards, if necessary,
to the nearest 1/100,000 of 1% (.0000001), with five one-millionths of a
percentage point rounded upward, of all such quotations. If on such date fewer
than two of the reference banks provide the Calculation Agent with such offered
quotations, LIBOR on such date will be the arithmetic mean, rounded upwards, if
necessary, to the nearest 1/100,000 of 1% (.0000001), with five one-millionths
of a percentage point rounded upward, of the offered per annum rates that one or
more leading banks in the City of New York selected by the Calculation Agent are
quoting as of 11:00 A.M., New York City time, on such date to leading European
banks for United States dollar deposits for one month; provided, however, that
-------- -------
if such banks are not quoting as described above, LIBOR for such date will be
LIBOR applicable to the Interest Reset Period immediately preceding such
Interest Reset Period; and provided, further, that if the result of the
-------- -------
foregoing would be for three consecutive Payment Dates to base LIBOR on the rate
applicable in the immediately preceding Interest Reset Period, for such third
consecutive Payment Date the Calculation Agent shall instead select an
alternative comparable index (over which the Calculation Agent has no control)
used for determining one-month Eurodollar lending rates that is calculated and
published (or otherwise made available) by an independent third party.
1-26
"LIBOR Business Day" as used herein means a day that is both a Business Day
------------------
and a day on which banking institutions in the City of London, England are not
required or authorized by law to be closed.
"LIBOR Determination Date" means the second LIBOR Business Day prior to the
------------------------
first day of the related Interest Reset Period.
"Liquidated Loan" means, with respect to any Due Period, either
---------------
(1) a Defaulted Loan as to which the Servicer has received from the
Obligor, or a third party purchaser of the Loan, all amounts which the Servicer
reasonably and in good faith expects to recover from or on account of such Loan,
or
(2) a Loan (a) upon which all or a portion of the first payment of
interest due by the Obligor was added to principal, and (b) on which the Obligor
failed to pay the full amount of principal due on the Loan, as computed by the
Servicer; provided, however, that any Loan which the Originator is obligated to
-------- -------
repurchase pursuant to Section 3.06, and did so repurchase or substitute
therefor an Eligible Substitute Loan in accordance with Section 3.06, shall be
deemed not to be a Liquidated Loan; and provided, further, that with respect to
-------- -------
Due Periods beginning on or after September 2029, a Liquidated Loan also means
any Loan as to which the Servicer has commenced foreclosure proceedings, or made
a sale of the Loan to a third party for foreclosure or enforcement.
"Liquidation Expenses" means out-of-pocket expenses (exclusive of any
--------------------
overhead expenses) which are incurred by the Servicer in connection with the
liquidation of any Defaulted Loan, including, without limitation, legal fees and
expenses, and any related and unreimbursed expenditures for property taxes,
insurance, property preservation or restoration of the property to marketable
condition.
"Liquidation Proceeds" means cash (including insurance proceeds) received
--------------------
in connection with the liquidation of Defaulted Loans, whether through
repossession, foreclosure sale or otherwise.
"List of Loans" means the lists identifying each Loan constituting part of
-------------
the Trust Fund and attached either to this Agreement as Exhibit L-1, L-2, or L-3
or to a Subsequent Transfer Instrument, as such lists may be amended from time
to time pursuant to Section 2.06 or Section 3.06(b) to add Eligible Substitute
Loans and delete Replaced Loans or Prepaid Loans, as the case may be. Each List
of Loans shall set forth as to each Loan identified on it (i) the Cut-off Date
Principal Balance, (ii) the amount of monthly payments due from the Obligor,
(iii) the Loan Interest Rate and (iv) the maturity date.
"Loan" means each Fixed Rate Loan or Adjustable Rate Loan.
----
"Loan File" means, as to each Loan, (a) the original promissory note duly
---------
endorsed in blank or in the name of the Trustee for the benefit of the
Certificateholders, (b) the original or a copy of the mortgage, deed of trust or
security deed or similar evidence of a lien on the related improved property and
evidence of due recording of such mortgage, deed of trust or security deed, if
available, (c) if such Loan was originated by a lender other than the
Originator, the
1-27
original or a copy of an assignment of the mortgage, deed of trust or security
deed by such lender to the Originator, (d) an assignment of the mortgage, deed
of trust or security deed in recordable form to the Trustee or in blank, and (e)
any extension, modification or waiver agreements.
"Loan Interest Rate" means, as to any Loan, the annual rate of interest
------------------
specified in the Loan.
"Minimum Loan Rate" means as to any Adjustable Rate Loan, the minimum Loan
-----------------
Interest Rate set forth in such Loan.
"Monthly Report" has the meaning assigned in Section 6.01.
--------------
"Monthly Servicing Fee" means, for any Payment Date, with respect to the
---------------------
Loans, one-twelfth of the product of .50% and the Pool Scheduled Principal
Balance for the preceding Payment Date (or, in the case of the first Payment
Date, the Cut-off Date).
"Moody's" means ▇▇▇▇�'� Investors Service, Inc., or any successor thereto;
-------
provided that, if Moody's no longer has a rating outstanding on any Class of the
--------
Certificates, then references herein to "▇▇▇▇�'�" shall be deemed to refer to
the NRSRO then rating any Class of the Certificates (or, if more than one such
NRSRO is then rating any Class of the Certificates, to such NRSRO as may be
designated by the Servicer), and references herein to ratings by or requirements
of ▇▇▇▇�'� shall be deemed to have the equivalent meanings with respect to
ratings by or requirements of such NRSRO.
"Net Liquidation Loss" means, as to a Liquidated Loan, the difference
--------------------
between (a) the Repurchase Price of such Loan, and (b) the Net Liquidation
Proceeds with respect to such Liquidated Loan, where such difference is a
positive number.
"Net Liquidation Proceeds" means, as to a Liquidated Loan, the proceeds
------------------------
received, or, for Loans which become Liquidated Loans pursuant to the last
proviso in the definition of "Liquidated Loan," the estimated proceeds to be
received, as of the last day of the Due Period in which such Loan became a
Liquidated Loan, from the Obligor, from a third party purchaser of the Loan,
under insurance, or otherwise, net of Liquidation Expenses.
"NRSRO" means any nationally recognized statistical rating organization.
-----
"Obligor" means the person who owes payments under a Loan.
-------
"Officer's Certificate" means a certificate signed by the Chairman of the
---------------------
Board, President or any Vice President of the Originator or the Seller and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may, except as
------------------
expressly provided herein, be salaried counsel for the Originator, the Seller or
the Servicer, as applicable, acceptable to the Trustee, the Originator and the
Seller.
"Original Aggregate Certificate Principal Balance" means $910,000,000.
------------------------------------------------
1-28
"Original Class Principal Balance" means as to each Class of Certificates,
--------------------------------
the amount set forth with respect to such Class in Section 2.05(b).
"Overcollateralization Amount" means, for any Payment Date,
----------------------------
(a) with respect to the Fixed Rate Certificates, the excess of (A) the sum
of the aggregate Scheduled Principal Balances of the Fixed Rate Loans, the
Pre-Funded Fixed Rate Group I Amount and the Pre-Funded Fixed Rate Group II
Amount over (B) the sum of the Class Principal Balances of the Fixed Rate
Certificates; and
(b) with respect to the Adjustable Rate Certificates, the excess of (A)
the sum of the aggregate Scheduled Principal Balances of the Adjustable
Rate Loans and the Pre-Funded ARM Amount over (B) the sum of the Class
Principal Balances of the Adjustable Rate Certificates.
"Partial Principal Prepayment" means (a) any Principal Prepayment other
----------------------------
than a Principal Prepayment in Full and (b) any cash amount deposited in the
Certificate Account pursuant to the proviso in Section 3.06(a) or pursuant to
Section 3.06(b).
"Pass-Through Rate" means with respect to each Class of Certificates, the
-----------------
rate set forth for such Class in Section 2.05(b).
"Paying Agent" has the meaning assigned in Section 8.01(c).
------------
"Payment Date" means the fifteenth day of each calendar month during the
------------
term of this Agreement, or if such day is not a Business Day, the next
succeeding Business Day, commencing in December 2000.
"Percentage Interest" means, as to any Certificate or the Class C
-------------------
Certificate, the percentage interest evidenced thereby in distributions made on
the related Class, such percentage interest being equal to: (i) as to any
Certificate, the percentage (carried to eight places) obtained from dividing the
denomination of such Certificate by the Original Principal Balance of the
related Class, and (ii) as to the Class C Certificate, the percentage specified
on the face of such Certificate. The aggregate Percentage Interests for each
Class of Certificates and the Class C Certificate shall equal 100%,
respectively.
"Permitted Transferee" means, in the case of a transfer of the Class C
--------------------
Certificate, a Person that is not a Plan or a Disqualified Organization, except
as permitted by Sections 9.02(b)(2) and (3), respectively.
"Person" means any individual, corporation, partnership, limited liability
------
company, joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"Plan" has the meaning assigned in Section 9.02(b)(2).
----
1-29
"Pool Factor" means, at any time, the percentage derived from a fraction,
-----------
the numerator of which is the Aggregate Certificate Principal Balance at such
time and the denominator of which is the Original Aggregate Certificate
Principal Balance.
"Pool Scheduled Principal Balance" means, for any Payment Date, the
--------------------------------
aggregate Scheduled Principal Balance for such Payment Date of all Loans that
were outstanding during the immediately preceding Due Period.
"Post-Funding Payment Date" means the first Payment Date after the last day
-------------------------
of the Pre-Funding Period.
"Pre-Funded Amount" means, with respect to any date of determination, the
-----------------
sum of the Pre-Funded Fixed Rate Group I Amount, the Pre-Funded Fixed Rate Group
II Amount and the Pre-Funded ARM Amount.
"Pre-Funded ARM Amount" means, with respect to any date of determination,
---------------------
the amount then on deposit in the Pre-Funding ARM Subaccount, after giving
effect to any sale of Subsequent Adjustable Rate Loans to the Trust on such
date.
"Pre-Funded Fixed Rate Group I Amount" means, with respect to any date of
------------------------------------
determination, the amount then on deposit in the Pre-Funding Fixed Rate Group I
Subaccount, after giving effect to any sale of Subsequent Fixed Rate Group I
Loans to the Trust on such date.
"Pre-Funded Fixed Rate Group II Amount" means, with respect to any date of
-------------------------------------
determination, the amount then on deposit in the Pre-Funding Fixed Rate Group II
Subaccount, after giving effect to any sale of Subsequent Fixed Rate Group II
Loans to the Trust on such date.
"Pre-Funding Account" means the account so designated, established and
-------------------
maintained pursuant to Section 8.08.
"Pre-Funding ARM Subaccount" means the account so designated, established
--------------------------
and maintained pursuant to Section 8.08.
"Pre-Funding Fixed Rate Group I Subaccount" means the account so
-----------------------------------------
designated, established and maintained pursuant to Section 8.08.
"Pre-Funding Fixed Rate Group II Subaccount" means the account so
------------------------------------------
designated, established and maintained pursuant to Section 8.08.
"Pre-Funding Period" means the period beginning on the Closing Date and
------------------
ending on the earliest of (a) the date on which the amount on deposit in the
Pre-Funding Account is less than $10,000.00, or (b) the close of business on
January 12, 2001, or (c) the date on which an Event of Termination occurs.
"Prepaid Loan" has the meaning assigned in Section 2.06.
------------
1-30
"Principal Distribution Amount" means, for each Class of Certificates and
-----------------------------
any Payment Date, the amount distributed to such Class in respect of principal
on such Payment Date, excluding amounts paid under clauses (15) and (19) of
Section 8.04(b), clauses (7) and (10) of Section 8.04(c), and clauses (17) and
(20) of Section 8.04(d).
"Principal Prepayment" means a payment or other recovery of principal on a
--------------------
Loan (exclusive of Liquidation Proceeds) which is received in advance of its
scheduled due date and applied upon receipt (or, in the case of a partial
prepayment, upon the next scheduled payment date on such Loan) to reduce the
outstanding principal amount due on such Loan prior to the date or dates on
which such principal amount is due.
"Principal Prepayment in Full" means any Principal Prepayment of the entire
----------------------------
principal balance of a Loan.
"Rating Agencies" means S&P, Fitch and Moody's.
---------------
"Realized Losses" means, for any Payment Date, the aggregate Net
---------------
Liquidation Losses for all Loans that became Liquidated Loans during the
immediately preceding Due Period.
"Record Date" means, with respect to any Payment Date, the Business Day
-----------
immediately preceding such Payment Date.
"REMIC" means a "real estate mortgage investment conduit" as defined in
-----
Section 860D of the Code.
"REMIC Provisions" means the provisions of the federal income tax law
----------------
relating to REMICs, which appear at Sections 860A through 860G of the Code, and
related provisions and any temporary, proposed or final regulations promulgated
thereunder, as the foregoing may be in effect from time to time.
"REO" means Loans as to which the real estate collateral has been
---
foreclosed upon and is owned by the Trust.
"Replaced Loan" has the meaning assigned in Section 3.06(b).
-------------
"Repurchase Price" means, with respect to a Loan to be repurchased pursuant
----------------
to Section 3.06 or which becomes a Liquidated Loan, an amount equal to (a) the
remaining principal amount outstanding on such Loan (without giving effect to
any Advances paid by the Servicer or the Trustee, as applicable, with respect to
such Loan pursuant to Section 8.02), plus (b) interest at the Loan Interest Rate
on such Loan from the end of the Due Period with respect to which the Obligor
last made a scheduled payment (without giving effect to any Advances paid by the
Servicer or the Trustee, as applicable, with respect to such Loan pursuant to
Section 8.02) through the date of such repurchase or liquidation.
"Responsible Officer" means, with respect to the Trustee, the chairman and
-------------------
any vice chairman of the board of directors, the president, the chairman and
vice chairman of any executive committee of the board of directors, every vice
president, assistant vice president, the secretary, every assistant secretary,
cashier or any assistant cashier, controller or assistant
1-31
controller, the treasurer, every assistant treasurer, every trust officer,
assistant trust officer and every other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by persons
who at the time shall be such officers, respectively, or to whom a corporate
trust matter is referred because of knowledge of, familiarity with, and
authority to act with respect to a particular matter.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw-
---
Hill Companies, Inc., or any successor thereto; provided that, if S&P no longer
--------
has a rating outstanding on any Class of the Certificates, then references
herein to "S&P" shall be deemed to refer to the NRSRO then rating any Class of
the Certificates (or, if more than one such NRSRO is then rating any Class of
the Certificates, to such NRSRO as may be designated by the Servicer), and
references herein to ratings by or requirements of S&P shall be deemed to have
the equivalent meanings with respect to ratings by or requirements of such
NRSRO.
"Scheduled Principal Balance" means, with respect to any Loan and any
---------------------------
Payment Date or the Cut-off Date, the principal balance of such Loan as of the
due date in the Due Period immediately preceding such Payment Date or Cut-off
Date, as the case may be, as specified in the amortization schedule at the time
relating thereto (before any adjustment to such amortization schedule by reason
of any bankruptcy of an Obligor or similar proceeding or any moratorium or
similar waiver or grace period) after giving effect to any previous Partial
Principal Prepayments and to the payment of principal due on such due date and
irrespective of any delinquency in payment by, or extension granted to, the
related Obligor. If for any Loan the Cut-off Date is the date of origination of
the Loan, its Scheduled Principal Balance as of the Cut-off Date is the
principal balance of the Loan on its date of origination.
"Senior Enhancement Percentage" means, for any Payment Date:
-----------------------------
(a) with respect to the Fixed Rate Certificates, a fraction, expressed as a
percentage, (x) the numerator of which is the excess of (A) the aggregate
Scheduled Principal Balances of the Fixed Rate Loans over (B) the Class AF
Principal Balance and (y) the denominator of which is the aggregate
Scheduled Principal Balances of the Fixed Rate Loans on such Payment Date;
and
(b) with respect to the Adjustable Rate Certificates, a fraction, expressed
as a percentage, (x) the numerator of which is the excess of (A) the
aggregate Scheduled Principal Balances of the Adjustable Rate Loans over
(B) the Class AV-1 Principal Balance and (y) the denominator of which is
the aggregate Scheduled Principal Balances of the Adjustable Rate Loans on
such Payment Date.
"Service Transfer" has the meaning assigned in Section 7.02.
----------------
"Servicer" means the Originator until any Service Transfer hereunder and
--------
thereafter means the new servicer appointed pursuant to Article VII.
"Servicing Officer" means any officer of the Servicer involved in, or
-----------------
responsible for, the administration and servicing of Loans whose name appears on
a list of servicing officers appearing in an Officer's Certificate furnished to
the Trustee by the Servicer, as the same may be amended from time to time.
1-32
"Sixty-Day Delinquency Ratio" means, for any Payment Date:
---------------------------
(a) with respect to the Fixed Rate Loans, a fraction, expressed as a
percentage, the numerator of which is the aggregate of the outstanding
balances of all Fixed Rate Loans that were delinquent 60 days or more as of
the end of the prior Due Period (including such Loans in respect of which
the related real estate has been foreclosed upon but is still in
inventory), and the denominator of which is the aggregate Scheduled
Principal Balances of the Fixed Rate Loans for such Payment Date; and
(b) with respect to the Adjustable Rate Loans, a fraction, expressed as a
percentage, the numerator of which is the aggregate of the outstanding
balances of all Adjustable Rate Loans that were delinquent 60 days or more
as of the end of the prior Due Period (including such Loans in respect of
which the related real estate has been foreclosed upon but is still in
inventory), and the denominator of which is the aggregate Scheduled
Principal Balances of the Adjustable Rate Loans for such Payment Date.
"Stepdown Date" means:
-------------
(a) with respect to the Fixed Rate Certificates, the earlier to occur of:
(i) the later to occur of (A) the Payment Date in December 2003 and
(B) the first Payment Date on which the Class AF Principal Balance is less
than or equal to 56.80% of the aggregate Scheduled Principal Balances of
the Fixed Rate Loans and
(ii) the Payment Date on which the Class AF Principal Balance is
reduced to zero; and
(b) with respect to the Adjustable Rate Certificates, the earlier to occur
of
(i) the later to occur of (A) the Payment Date in December 2003 and
(B) the first Payment Date on which the Class AV-1 Principal Balance is
less than or equal to 57% of the aggregate Scheduled Principal Balances of
the Adjustable Rate Loans and
(ii) the Payment Date on which the Class AV-1 Principal Balance is
reduced to zero.
"Subsequent Adjustable Rate Loan" means a Subsequent Loan that is an
-------------------------------
Adjustable Rate Loan.
"Subsequent Fixed Rate Group I Loan" means a Subsequent Loan that is a
----------------------------------
Fixed Rate Group I Loan.
"Subsequent Fixed Rate Group II Loan" means a Subsequent Loan that is a
-----------------------------------
Fixed Rate Group II Loan.
"Subsequent Loan" means an Adjustable Rate Loan, a Fixed Rate Group I Loan
---------------
or a Fixed Rate Group II Loan sold by the Seller to the Trust pursuant to
Section 2.03, such Loan being identified as such in the related Subsequent
Transfer Instrument.
1-33
"Subsequent Transfer Date" means, with respect to each Subsequent Transfer
------------------------
Instrument, the date on which the related Subsequent Loans are sold to the
Trust.
"Subsequent Transfer Instrument" means each Subsequent Transfer Instrument
------------------------------
dated as of a Subsequent Transfer Date executed by the Seller substantially in
the form of Exhibit O, by which the Seller sells Subsequent Loans to the Trust.
"Target Overcollateralization Amount" means $3,150,000 for the Adjustable
-----------------------------------
Rate Certificates and $18,200,000 for the Fixed Rate Certificates.
"Telerate Page 3750" means the display page so designated on the Dow ▇▇▇▇�
------------------
Telerate Service (or such other page as may replace that page on that service,
or such other service as may be nominated as the information vendor by the
Calculation Agent, for the purpose of displaying London interbank offered rates
of major banks).
"Transfer Agreement" means the Transfer Agreement between Conseco Finance
------------------
Securitizations Corp., as purchaser, and Conseco Finance Corp., as seller, dated
as of October 1, 2000.
"Trigger Event" exists if:
-------------
(a) with respect to the Fixed Rate Certificates, (i) the Average Sixty-Day
Delinquency Ratio Test for the Fixed Rate Loans is not satisfied or (ii)
the Cumulative Realized Losses Test for the Fixed Rate Loans is not
satisfied; and
(b) with respect to the Adjustable Rate Certificates, (i) the Average
Sixty-Day Delinquency Ratio Test for the Adjustable Rate Loans is not
satisfied or (ii) the Cumulative Realized Losses Test for the Adjustable
Rate Loans is not satisfied.
"Trust" means Conseco Finance Home Equity Loan Trust 2000-F.
-----
"Trust Fund" means the corpus of the Trust created by this Agreement which
----------
consists of (i) all the rights, benefits and obligations arising from and in
connection with the Loans, 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 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 owner of such Loan, (iii) all rights of
the Seller under the Transfer Agreement and any Subsequent Transfer Agreement
(as defined in the Transfer Agreement), (iv) all rights the Originator may have
against the originating lender with respect to Loans originated by a lender
other than the Originator, (v) all rights under the Errors and Omissions
Protection Policy and the Fidelity Bond as such policy and bond relate to the
Loans, (vi) all rights under any title insurance policies, if applicable, on any
of the properties securing Loans, (vii) all documents contained in the Loan
Files, (viii) amounts in the Certificate Account, the Capitalized Interest
Account and the Pre-Funding Account (including all proceeds of investments of
funds in the Certificate Account) and (ix) all proceeds and products of the
foregoing.
"Trustee Advance" has the meaning assigned in Section 11.15.
---------------
1-34
"Underwriters" means ▇▇▇▇▇▇� ▇▇▇▇�, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇� Incorporated,
------------
Banc of America Securities LLC, Chase Securities Inc., Credit Suisse First
Boston Corporation, Deutsche Bank Securities Inc. and ▇▇▇▇▇▇ Brothers Inc.
"Underwriting Agreement" means the Underwriting Agreement and related Terms
----------------------
Agreement, each dated October 20, 2000, among the Originator, the Seller and the
Underwriters.
"Unpaid Class A Interest Shortfall" means, as to each Class of Class A
---------------------------------
Certificates and any Payment Date, the amount, if any, of the Class A Interest
Shortfall applicable to such Class for the prior Payment Date, plus one month's
interest thereon (to the extent payment thereof is legally permissible) at the
related Pass-Through Rate.
"Unpaid Class BF-1 Interest Shortfall" means, for any Payment Date, the
------------------------------------
amount, if any, of the Class BF-1 Interest Shortfall for the prior Payment Date,
plus one month's interest thereon (to the extent payment thereof is legally
permissible) at the Class BF-1 Pass-Through Rate.
"Unpaid Class BF-1 Liquidation Loss Interest Shortfall" means, for any
-----------------------------------------------------
Payment Date, the amount, if any, of the Class BF-1 Liquidation Loss Interest
Shortfall for the prior Payment Date, plus one month's interest thereon (to the
extent payment thereof is legally permissible) at the Class BF-1 Pass-Through
Rate.
"Unpaid Class BF-2 Interest Shortfall" means, for any Payment Date, the
------------------------------------
amount, if any, of the Class BF-2 Interest Shortfall for the prior Payment Date,
plus one month's interest thereon (to the extent payment thereof is legally
permissible) at the Class BF-2 Pass-Through Rate.
"Unpaid Class BV-1 Interest Shortfall" means, for any Payment Date, the
------------------------------------
amount, if any, of the Class BV-1 Interest Shortfall for the prior Payment Date,
plus one month's interest thereon (to the extent payment thereof is legally
permissible) at the Class BV-1 Pass-Through Rate.
"Unpaid Class BV-1 Liquidation Loss Interest Shortfall" means, for any
-----------------------------------------------------
Payment Date, the amount, if any, of the Class BV-1 Liquidation Loss Interest
Shortfall for the prior Payment Date, plus one month's interest thereon (to the
extent payment thereof is legally permissible) at the Class BV-1 Pass-Through
Rate.
"Unpaid Class BV-2 Interest Shortfall" means, for any Payment Date, the
------------------------------------
amount, if any, of the Class BV-2 Interest Shortfall for the prior Payment Date,
plus one month's interest thereon (to the extent payment thereof is legally
permissible) at the Class BV-2 Pass-Through Rate.
"Unpaid Class MF-1 Interest Shortfall" means, for any Payment Date, the
------------------------------------
amount, if any, of the Class MF-1 Interest Shortfall for the prior Payment Date,
plus one month's interest thereon (to the extent payment thereof is legally
permissible) at the Class MF-1 Pass-Through Rate.
"Unpaid Class MF-1 Liquidation Loss Interest Shortfall" means, for any
-----------------------------------------------------
Payment Date, the amount, if any, of the Class MF-1 Liquidation Loss Interest
Shortfall for the prior Payment
1-35
Date, plus one month's interest thereon (to the extent payment thereof is
legally permissible) at the Class MF-1 Pass-Through Rate.
"Unpaid Class MF-2 Interest Shortfall" means, for any Payment Date, the
------------------------------------
amount, if any, of the Class MF-2 Interest Shortfall for the prior Payment Date,
plus one month's interest thereon (to the extent payment thereof is legally
permissible) at the Class MF-2 Pass-Through Rate.
"Unpaid Class MF-2 Liquidation Loss Interest Shortfall" means, for any
-----------------------------------------------------
Payment Date, the amount, if any, of the Class MF-2 Liquidation Loss Interest
Shortfall for the prior Payment Date, plus one month's interest thereon (to the
extent payment thereof is legally permissible) at the Class MF-2 Pass-Through
Rate.
"Unpaid Class MV-1 Interest Shortfall" means, for any Payment Date, the
------------------------------------
amount, if any, of the Class MV-1 Interest Shortfall for the prior Payment Date,
plus one month's interest thereon (to the extent payment thereof is legally
permissible) at the Class MV-1 Pass-Through Rate.
"Unpaid Class MV-1 Liquidation Loss Interest Shortfall" means, for any
-----------------------------------------------------
Payment Date, the amount, if any, of the Class MV-1 Liquidation Loss Interest
Shortfall for the prior Payment Date, plus one month's interest thereon (to the
extent payment thereof is legally permissible) at the Class MV-1 Pass-Through
Rate.
"Unpaid Class MV-2 Interest Shortfall" means, for any Payment Date, the
------------------------------------
amount, if any, of the Class MV-2 Interest Shortfall for the prior Payment Date,
plus one month's interest thereon (to the extent payment thereof is legally
permissible) at the Class MV-2 Pass-Through Rate.
"Unpaid Class MV-2 Liquidation Loss Interest Shortfall" means, for any
-----------------------------------------------------
Payment Date, the amount, if any, of the Class MV-2 Liquidation Loss Interest
Shortfall for the prior Payment Date, plus one month's interest thereon (to the
extent payment thereof is legally permissible) at the Class MV-2 Pass-Through
Rate.
"Weighted Average Loan Rate" means, for any Payment Date, the weighted
--------------------------
average (determined by Scheduled Principal Balance) of the Loan Interest Rates
for all Loans that were outstanding during the immediately preceding month.
"Weighted Average Debt Consolidation Percentage" means the weighted
----------------------------------------------
average, by Scheduled Principal Balance, of Loans, the proceeds of which were
used by the related Obligors for the purpose of debt consolidation.
"Weighted Average Pass-Through Rate" means, for any Payment Date, with
----------------------------------
respect to any Loan, the sum of (i) the weighted average (expressed as a
percentage and rounded to four decimal places) of the Class AV-1, Class MV-1,
Class MV-2, Class BV-1, Class BV-2, Class AF-1A, Class AF-1, Class AF-2, Class
AF-3, Class AF-4, Class MF-1, Class MF-2, Class BF-1 and Class BF-2 Pass-Through
Rates, weighted on the basis of the respective Class AV-1, Class MV-1, Class MV-
2, Class BV-1, Class BV-2, Class AF-1A, Class AF-1, Class AF-2,
1-36
Class AF-3, Class AF-4, Class MF-1, Class MF-2, Class BF-1 and Class BF-2
Principal Balances.
SECTION 1.03. Calculation of Interest on the Certificates. Interest on the
-------------------------------------------
Adjustable Rate Certificates shall be computed on the basis of actual days
elapsed in a year of 360 days. Interest on each other Class of Certificates
shall be computed on the basis of a 360-day year of twelve 30-day months.
1-37
ARTICLE II.
ESTABLISHMENT OF TRUST; TRANSFER OF LOANS
-----------------------------------------
SECTION 2.01. Closing.
-------
a. There is hereby created, by the Seller as settlor, a separate trust
which shall be known as Conseco Finance Home Equity Loan Trust 2000-F. The Trust
shall be administered pursuant to the provisions of this Agreement for the
benefit of the Certificateholders and the Class C Certificateholder.
b. The Seller hereby transfers, assigns, sets over and otherwise conveys
to the Trustee on behalf of the Trust, by execution and delivery of an
assignment substantially in the form of Exhibit D hereto, all the right, title
and interest of the Seller in and to the Loans, including all rights to receive
payments on or with respect to the Loans due after the Cut-off Date, all rights
of the Seller under the Transfer Agreement and all other assets now or hereafter
included in the Trust Fund. Such transfer and assignment is intended by the
Seller to be a sale of such assets for all purposes, including, without
limitation, the Federal Bankruptcy Code, to the end that all such assets will
hereafter cease to be the property of the Seller and would not be includable in
the estate of the Seller or the Originator for purposes of Section 541 of the
Federal Bankruptcy Code.
c. Although the parties intend that each conveyance pursuant to this
Agreement of the Seller's right, title and interest in and to the Loans
(including the Subsequent Loans) shall constitute a purchase and sale and not a
loan, if such conveyances are deemed to be loans, the parties intend that the
rights and obligations of the parties to such loans shall be established
pursuant to the terms of this Agreement. If the conveyances are deemed to be
loans, the parties further intend and agree that the Originator and the Seller
shall be deemed to have granted to the Trustee and the Originator, and the
Seller does hereby grant to the Trustee, a perfected first-priority security
interest in the Trust Fund and that this Agreement shall constitute a security
agreement under applicable law. If the trust created by this Agreement
terminates prior to the satisfaction of the claims of any Person under any
Certificate or Class C Certificate, the security interest created hereby shall
continue in full force and effect and the Trustee shall be deemed to be the
collateral agent for the benefit of such Person.
SECTION 2.02. Conditions to the Closing. On or before the Closing Date, the
-------------------------
Seller shall deliver or cause to be delivered the following documents to the
Trustee:
a. The List of Loans attached to this Agreement as Exhibits L-1, L-2, and
L-3, certified by the Chairman of the Board, President or any Vice President of
the Seller.
b. A certificate of an officer of the Originator substantially in the form
of Exhibit E-1 and a certificate of an officer of the Seller substantially in
the form of Exhibit E-2 hereto.
c. An Opinion of Counsel for the Seller substantially in the form of
Exhibit F hereto.
d. A letter acceptable to the Underwriters from PricewaterhouseCoopers LLP
or another nationally recognized accounting firm, stating that such firm has
reviewed the Initial Loans on a statistical sampling basis and setting forth the
results of such review.
2-1
e. Copies of resolutions of the board of directors of the Seller or of the
executive committee of the board of directors of the Seller approving the
execution, delivery and performance of this Agreement and the transactions
contemplated hereunder, certified in each case by the secretary or an assistant
secretary of the Seller.
f. Officially certified recent evidence of due incorporation and good
standing of the Seller under the laws of the State of Minnesota and of the
Originator under the laws of the State of Delaware.
g. An Officer's Certificate listing the Servicer's Servicing Officers.
h. Evidence of continued coverage of the Servicer under the Errors and
Omissions Protection Policy.
i. Evidence of deposit in the Certificate Account of all funds received
with respect to the Loans from the Cut-off Date to the Closing Date, other than
principal due on or before the Cut-off Date, together with an Officer's
Certificate to the effect that such amount is correct.
j. The Loan Files for the Initial and Additional Loans and an Officer's
Certificate confirming that the Originator has reviewed the original of each
Initial and Additional Loan and each related Loan File, that each such Loan and
Loan File conforms in all material respects with the List of Loans and that each
such Loan File is complete in accordance with the definition thereof and has
been delivered to the Trustee (or its custodian).
k. An assignment of the Loans from the Seller to the Trustee, substantially
in the form of Exhibit D.
l. Evidence of the deposit of $0.00 in the Pre-Funding Fixed Rate Group I
Subaccount, $1,006.94 in the Pre-Funding Fixed Rate Group II Subaccount and
$16,772.43 in the Pre-Funding ARM Subaccount.
m. Evidence of the deposit of $0.00 in the Capitalized Interest Account.
n. Letters from each of the Rating Agencies evidencing ratings for the
Certificates as required by the prospectus supplement relating to the
Certificates.
o. An executed copy of the Transfer Agreement.
SECTION 2.03. Conveyance of the Subsequent Loans.
----------------------------------
a. Subject to the conditions set forth in paragraph (b) below, in
consideration of the Trustee's delivery on the related Subsequent Transfer Dates
to or upon the order of the Seller of all or a portion of the balance of funds
in the Pre-Funding Fixed Rate Group I Subaccount, the Pre-Funding Fixed Rate
Group II Subaccount and the Pre-Funding ARM Subaccount, the Seller shall on any
Subsequent Transfer Date sell, transfer, assign, set over and convey to the
Trust by execution and delivery of a Subsequent Transfer Instrument, all the
right, title and interest of the Seller in and to the Subsequent Loans
identified on the List of Loans attached to the Subsequent Transfer Instrument,
including all rights to receive payments on or with respect to the
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Subsequent Loans due after the related Cut-off Date, and all items with respect
to such Subsequent Loans in the related Loan Files. The transfer to the Trustee
by the Seller of the Subsequent Loans shall be absolute and is intended by the
Seller, the Trustee, the Certificateholders and the Class C Certificateholder to
constitute and to be treated as a sale of the Subsequent Loans by the Seller or
the Originator to the Trust.
The purchase price paid by the Trustee shall be one hundred percent (100%)
of the aggregate Cut-off Date Principal Balances of such Subsequent Loans. The
purchase price of Subsequent Adjustable Rate Loans shall be paid solely with
amounts in the Pre-Funding ARM Subaccount. The purchase price of Subsequent
Fixed Rate Group I Loans shall be paid solely with amounts in the Pre-Funding
Fixed Rate Group I Subaccount. The purchase price of Subsequent Fixed Rate
Group II Loans shall be paid solely with amounts in the Pre-Funding Fixed Rate
Group II Subaccount. This Agreement shall constitute a fixed price contract in
accordance with Section 860G(a)(3)(A)(ii) of the Code.
b. The Seller shall transfer to the Trustee the Subsequent Loans, and the
Trustee shall release funds from the Pre-Funding Fixed Rate Group I Subaccount,
the Pre-Funding Fixed Rate Group II Subaccount or the Pre-Funding ARM
Subaccount, as applicable, only upon the satisfaction of each of the following
conditions on or prior to the related Subsequent Transfer Date:
(i) the Seller shall have provided the Trustee 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) the Seller 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) the Seller shall have delivered to the Trustee a duly executed
Subsequent Transfer Instrument substantially in the form of Exhibit O,
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 Instrument, the Seller shall not be insolvent nor
shall it have been made insolvent by such transfer nor shall it be aware of
any pending insolvency;
(v) such sale and transfer shall not result in a material adverse
tax consequence to the Trust or the REMIC comprising the Trust or the
Certificateholders or Class C Certificateholder;
(vi) the Pre-Funding Period shall not have ended;
(vii) the Seller shall have delivered to the Trustee an Officer's
Certificate, substantially in the form attached hereto as Exhibit P,
confirming the satisfaction of each condition precedent and the
representations specified in this Section 2.03 and in Sections 3.01 and
3.03;
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(viii) the Seller and the Originator shall have delivered to the
Trustee Opinions of Counsel addressed to the Rating Agencies and the
Trustee with respect to the transfer of the Subsequent Loans substantially
in the form of the Opinions of Counsel delivered to the Trustee on the
Closing Date regarding certain bankruptcy, corporate and tax matters;
(ix) no Subsequent Loan will have a Combined LTV greater than 100%;
(x) the Seller shall have delivered to the Trustee an executed copy
of a Subsequent Transfer Agreement between the Originator and the Seller,
substantially in the form of Exhibit A to the Transfer Agreement and dated
as of the Subsequent Transfer Date; and
(xi) the Trustee shall have delivered its Acknowledgement as
described in Section 2.04(a).
c. On or before the last day of the Pre-Funding Period, the Seller shall
deliver to the Trustee:
(i) A letter from PricewaterhouseCoopers LLP or another nationally
recognized accounting firm retained by the Seller (with copies provided to
the Rating Agencies, the Underwriters and the Trustee) that is in form,
substance and methodology the same as that delivered under Section 2.02(d)
of this Agreement, except that it shall address the Subsequent Loans and
their conformity in all material respects to the characteristics described
in Sections 2.03(b)(ix) and 3.04(b) of this Agreement.
(ii) Evidence that, as a result of the purchase by the Trust of the
Subsequent Loans, none of the ratings assigned to the Certificates as of
the Closing Date by the Rating Agencies will be reduced, withdrawn or
qualified.
(iii) Evidence that the aggregate Cut-off Date Principal Balances of
the Subsequent Loans, not specifically identified as Subsequent Loans as of
the Closing Date, do not exceed 25% of the Original Aggregate Certificate
Principal Balance.
SECTION 2.04. Acceptance by Trustee.
---------------------
a. On the Closing Date and each Subsequent Transfer Date, if the
conditions set forth in Section 2.02 and 2.03, respectively, have been
satisfied, the Trustee shall deliver a certificate to the Seller substantially
in the form of Exhibit G hereto (an "Acknowledgment") acknowledging conveyance
of the Loans identified on the applicable List of Loans and the related Loan
Files to the Trustee and declaring that the Trustee, directly or through a
Custodian, will hold all Loans that have been delivered in trust, upon the
trusts herein set forth, for the use and benefit of all Certificateholders and
the Class C Certificateholder. In consideration of the assignment of the Trust
Fund to it, the Trustee has issued on the Closing Date, to or upon the order of
the Seller, the Certificates and the Class C Certificate representing, in the
aggregate, ownership of the entire beneficial interest in the REMIC comprising
the Trust.
b. The Trustee or a Custodian shall review each Loan File, as described
in Exhibit G, within 60 days of the Closing Date or later receipt by it of the
Loan File. If, in its review of
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the Loan Files as described in Exhibit G, the Trustee or a Custodian discovers a
breach of the representations or warranties set forth in Sections 2.03, 3.02,
3.03, 3.04 or 3.05 of this Agreement, or in the Officer's Certificates delivered
pursuant to Section 2.02(j), 2.03(b)(vii), 2.06(ii) or 3.06(b)(ii), the Trustee
or Custodian, as the case may be, shall notify the Seller and the Originator
shall cure such breach or repurchase or replace such Loan pursuant to Section
3.06.
SECTION 2.05. REMIC Provisions.
----------------
a. The Originator, as Servicer, and the Class C Certificateholder, by
acceptance thereof, each agrees that, in accordance with the requirements of
Section 860D(b)(1) of the Code, the federal tax return of the Trust for its
first taxable year shall provide an election for the Trust, excluding the Pre-
Funding Account and Capitalized Interest Account, to be treated as a REMIC under
the Code for such taxable year and all subsequent taxable years, and the Trustee
shall sign such return. In furtherance of the foregoing, the Trustee (at the
direction of the Originator, the Seller or the Servicer), the Originator, the
Seller and the Servicer shall take, or refrain from taking, all such action as
is necessary to maintain the status of the Trust as a REMIC under the REMIC
Provisions of the Code, including, but not limited to, the taking of such action
as is necessary to cure any inadvertent termination of REMIC status. For
purposes of the REMIC election, (i) the Certificates shall be designated as the
"regular interests" in the REMIC and (ii) the Class C Certificate shall be
designated as the sole class of "residual interests" in the REMIC. The Trustee
shall not permit the creation of any "interests" in the REMIC (within the
meaning of Section 860G of the Code) other than the interests represented by the
Certificates and the Class C Certificate.
b. The Certificates are being issued in fourteen classes. The following
terms of the Certificates are irrevocably established as of the Closing Date:
Class Pass-Through Rate Per Annum Original Class
Principal Balance
----------------- --------------------------------------------- -------------------
Class AV-1 A floating rate per annum equal to the $168,000,000
lesser of (a) one-month LIBOR plus 0.25%,
or (b) the Available Funds Pass-Through
Rate, but in no case more than 14.0%.
Class MV-1 A floating rate per annum equal to the $ 15,750,000
lesser of (a) one-month LIBOR plus 0.75%,
or (b) the Available Funds Pass-Through
Rate, but in no case more than 14.0%.
Class MV-2 A floating rate per annum equal to the $ 10,500,000
lesser of (a) one-month LIBOR plus 1.35%,
or (b) the Available Funds Pass-Through
Rate, but in no case more than 14.0%.
2-5
Class BV-1 A floating rate per annum equal to the $ 9,450,000
lesser of (a) one-month LIBOR plus 2.30%,
or (b) the Available Funds Pass-Through
Rate, but in no case more than 14.0%.
Class BV-2 A floating rate per annum equal to the $ 6,300,000
lesser of (a) one-month LIBOR plus 2.50%,
or (b) the Available Funds Pass-Through
Rate, but in no case more than 14%.
Class AF-1A 7.23% $200,000,000
Class AF-1 6.86% $200,000,000
Class AF-2 6.98% $ 25,000,000
Class AF-3 7.17% $ 90,000,000
Class AF-4 7.67% plus, after the Additional Principal $ 52,000,000
Entitlement Date, 0.50% per annum.
Class MF-1 8.30% $ 49,000,000
Class MF-2 8.93% $ 35,000,000
Class BF-1 A floating rate equal to the Weighted $ 28,000,000
Average Loan Rate, but in no event greater
than 10.55%
Class BF-2 A floating rate equal to the Weighted $ 21,000,000
Average Loan Rate, but in no event greater
than 10.00%
c. The Closing Date, which is the day on which the Trust will issue all
of its regular and residual interests, is hereby designated as the "startup day"
of the REMIC within the meaning of Section 860G(a)(9) of the Code.
d. After the Closing Date, neither the Trustee, the Originator, the
Seller nor any Servicer shall (i) accept any contribution of assets to the
Trust, (ii) dispose of any portion of the Trust other than as provided in
Sections 3.06, 3.07 and 8.06, (iii) engage in any transaction that would result
in the imposition of any tax on "prohibited transactions," as defined in Section
860F(a)(1) of the Code, (iv) accept any contribution after the Closing Date that
is subject to the tax imposed by Section 860G(d) of the Code or (v) engage in
any activity or enter into any agreement that would result in the receipt by the
Trust of any "net income from foreclosure property" as defined in Section
860G(c)(2) of the Code, unless, prior to any such action set forth in clauses
(i), (ii), (iii), (iv) or (v), the Trustee shall have received an unqualified
Opinion of Counsel, which opinion shall not be an expense of the Trust, stating
that such action will not, directly or indirectly, (A) adversely affect the
status of the REMIC as a REMIC or the status of the Certificates and Class C
Certificate as "regular interests" and the sole class of "residual interests,"
respectively, in the REMIC, in each case for federal income tax purposes, (B)
affect the distributions payable hereunder to the Certificateholders or the
Class C Certificateholder or (C) result in the imposition of any lien, charge or
encumbrance upon the Trust.
e. Upon the acquisition of any real property (including interests in real
property), or any personal property incident thereto, in connection with the
default of a Loan, the Servicer and the Trustee (at the direction of the
Servicer) shall take, or cause to be taken, such action as is necessary to sell
or otherwise dispose of such property within such period as is then required by
2-6
the Code in order for such property to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code, unless the Servicer and the
Trustee receive an Opinion of Counsel to the effect that the holding by the
Trust of such property subsequent to the period then permitted by the Code will
not result in the imposition of any taxes on "prohibited transactions" of the
Trust, as defined in Section 860F of the Code, or cause the REMIC to fail to
qualify as a REMIC at any time that the Certificates or Class C Certificate are
outstanding. The Servicer shall manage, conserve, protect and operate such real
property, or any personal property incident thereto, so that such property will
not fail to qualify as "foreclosure property," as defined in Section 860G(a)(8)
of the Code, and that the management, conservation, protection and operation of
such property will not result in the receipt by the REMIC of any income
attributable to any asset which is neither a qualified mortgage nor a permitted
investment within the meaning of the REMIC Provisions.
SECTION 2.06. Seller Option to Substitute for Prepaid Loans. The Seller
---------------------------------------------
may, at its option, substitute new loans for Loans as to which a Principal
Prepayment in Full has been received by the Servicer prior to January 29, 2001
("Prepaid Loans"), up to a maximum of 5% of the Cut-Off Date Pool Principal
Balance, upon satisfaction of the following conditions:
(i) the Seller shall have conveyed to the Trustee the Loan to be
substituted for the Prepaid Loan and the Loan File related to such Loan and
the Seller shall have marked the Electronic Ledger indicating that such
Loan constitutes part of the Trust;
(ii) the Loan to be substituted is an Eligible Substitute Loan and
the Seller delivers an Officers' Certificate, substantially in the form of
Exhibit J-3 hereto, to the Trustee certifying that such Loan is an Eligible
Substitute Loan;
(iii) the Seller shall have delivered to the Trustee evidence of
filing of a UCC-1 financing statement executed by the Seller as debtor,
naming the Trustee as secured party and filed in Minnesota, listing such
Loan to be substituted as collateral;
(iv) such substitution shall be accomplished prior to the
Determination Date immediately following the calendar month in which the
Principal Prepayment in Full was received by the Servicer, and no such
substitution shall take place after February 12, 2001;
(v) the Seller shall have delivered to the Trustee an Opinion of
Counsel (a) to the effect that the substitution of such Loan for such
Prepaid Loan will not cause the REMIC comprising the Trust to fail to
qualify as a REMIC at any time under then applicable REMIC Provisions or
cause any "prohibited transaction" that will result in the imposition of a
tax under such REMIC Provisions and (b) to the effect of paragraph 11 of
Exhibit F hereto; and
(vi) if the Principal Prepayment in Full received in respect of such
Prepaid Loan is greater than the Scheduled Principal Balance of the Loan to
be substituted, such excess shall be distributed to Certificateholders on
the related Payment Date as a prepayment of principal.
2-7
Upon satisfaction of such conditions, the Trustee shall add such Loan to be
substituted to the List of Loans.
Any substitutions pursuant to this Section 2.06 may be accomplished on a
loan-by-loan basis or on an aggregate basis as to all Prepaid Loans with respect
to a given calendar month.
2-8
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
------------------------------
The Seller and the Originator make the following representations and
warranties. The Trustee will rely on the representations and warranties in
accepting the Loans in trust and issuing the Certificates and the Class C
Certificate on behalf of the Trust. The repurchase or substitution and
indemnification obligations of the Originator set forth in Section 3.06
constitute the sole remedies available to the Trust, the Certificateholders or
the Class C Certificateholder for a breach of a representation or warranty set
forth in Sections 2.03, 3.02, 3.03, 3.04 or 3.05 of this Agreement, or in the
Officer's Certificates delivered pursuant to Sections 2.02(j) or 2.03(b)(vii) of
this Agreement.
SECTION 3.01. Representations and Warranties Regarding the Seller. The
---------------------------------------------------
Seller represents and warrants to the Certificateholders and the Class C
Certificateholder, effective on the Closing Date and each Subsequent Transfer
Date, that:
a. Organization and Good Standing. The Seller is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its assets
and to transact the business in which it is currently engaged. The Seller is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Seller.
b. Authorization; Binding Obligations. The Seller has the power and
----------------------------------
authority to make, execute, deliver and perform this Agreement and all of the
transactions contemplated under this Agreement, and to create the Trust and
cause it to make, execute, deliver and perform its obligations under this
Agreement and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement and to cause the Trust to
be created. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of the Seller enforceable in accordance with
its terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
c. No Consent Required. The Seller is not required to obtain the consent
-------------------
of any other party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement.
d. No Violations. The execution, delivery and performance of this
-------------
Agreement by the Seller will not violate any provision of any existing law or
regulation or any order or decree of any court or the Certificate of
Incorporation or Bylaws of the Seller, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which the Seller is a party
or by which the Seller may be bound.
3-1
e. Litigation. No litigation or administrative proceeding of or before
----------
any court, tribunal or governmental body is currently pending, or to the
knowledge of the Seller threatened, against the Seller or any of its properties
or with respect to this Agreement, the Certificates or the Class C Certificate
which, if adversely determined, would in the opinion of the Seller have a
material adverse effect on the transactions contemplated by this Agreement.
f. Licensing. The Seller is duly licensed in each state in which Loans
---------
were originated to the extent the Seller is required to be licensed by
applicable law in connection with the origination and servicing of the Loans.
SECTION 3.02. Representations and Warranties Regarding Each Loan. The
--------------------------------------------------
Originator has made the following representations and warranties to the Seller
in the Transfer Agreement, which representations and warranties the Seller has
assigned to the Trustee for the benefit of the Certificateholders and the Class
C Certificateholder, as of the Closing Date with respect to each Loan identified
on the List of Loans attached to this Agreement as Exhibits L-1, L-2 and L-3 and
as of each Subsequent Transfer Date with respect to each Subsequent Loan
identified on the List of Loans attached to the related Subsequent Transfer
Instrument:
a. List of Loans. The information set forth in the List of Loans is true
-------------
and correct as of its date.
b. Payments. As of its Cut-off Date, no scheduled payment due under the
--------
Loan was delinquent over 30 days.
c. Costs Paid and No Waivers. The terms of the Loan have not been waived,
-------------------------
altered or modified in any respect, except by instruments or documents
identified in the Loan File. All costs, fees and expenses incurred in making,
closing and perfecting the lien of the Loan have been paid. The subject real
property has not been released from the lien of such Loan.
d. Binding Obligation. The Loan is the legal, valid and binding
------------------
obligation of the Obligor thereunder and is enforceable in accordance with its
terms, except as such enforceability may be limited by laws affecting the
enforcement of creditors' rights generally.
e. No Defenses. The Loan is not subject to any right of rescission,
-----------
setoff, counterclaim or defense, including the defense of usury, and the
operation of any of the terms of the Loan or the exercise of any right
thereunder will not render the Loan unenforceable in whole or in part or subject
to any right of rescission, setoff, counterclaim or defense, including the
defense of usury, and no such right of rescission, setoff, counterclaim or
defense has been asserted with respect thereto.
f. Insurance Coverage. The Originator has been named as an additional
------------------
insured party under any hazard insurance on the property described in the Loan,
to the extent required by the Originator's underwriting guidelines. If upon
origination of the Loan, the property securing the Loan was in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards (and if flood insurance was required by federal
regulation and such flood insurance has been made available in the locale where
the property is located), the property is covered by a flood insurance policy of
the nature and in an amount which is consistent with the servicing standard set
forth in Section 5.02.
3-2
g. Combined LTV. The Combined LTV for the Loan is not greater than 100%.
------------
h. Lawful Assignment. The Loan was not originated in and is not subject
-----------------
to the laws of any jurisdiction whose laws would make the transfer of the Loan
under this Agreement or pursuant to transfers of the Certificates or Class C
Certificate unlawful or render the Loan unenforceable. The Originator has duly
executed a valid blanket assignment of the Loans transferred to the Seller, and
has transferred all its right, title and interest in such Loans, including all
rights the Originator may have against the originating lender with respect to
Loans originated by a lender other than the Originator, to the Seller. The
blanket assignment, any and all documents executed and delivered by the
Originator pursuant to Sections 2.01(b) and 2.03(b), and this Agreement each
constitutes the legal, valid and binding obligation of the Originator
enforceable in accordance with its respective terms.
i. Compliance with Law. At the date of origination of the Loan, all
-------------------
requirements of any federal and state laws, rules and regulations applicable to
the Loan, including, without limitation, usury and truth in lending laws, have
been complied with and the Originator shall for at least the period of this
Agreement, maintain in its possession, available for the Trustee's inspection,
and shall deliver to the Trustee upon demand, evidence of compliance with all
such requirements.
j. Loan in Force. The Loan has not been satisfied or subordinated in
-------------
whole or in part or rescinded, and the real estate securing such Loan has not
been released from the lien of such Loan in whole or in part.
k. Valid Lien. The Loan has been duly executed and delivered by the
----------
Obligor, and the lien created thereby has been duly recorded, or has been
delivered to the appropriate governmental authority for recording and will be
duly recorded within 180 days, and constitutes a valid and perfected first,
second or third priority lien, as the case may be on the real estate described
in such Loan.
l. Capacity of Parties. The signature(s) of the Obligor(s) on the Loan
-------------------
are genuine and all parties to the Loan had full legal capacity to execute the
Loan.
m. Good Title. The Originator is the sole owner of the Loan and has the
----------
authority to sell, transfer and assign such Loan to the Seller under the terms
of the Transfer Agreement. There has been no assignment, sale or hypothecation
of the Loan by the Originator except the usual past hypothecation of the Loan in
connection with the Originator's normal banking transactions in the conduct of
its business, which hypothecation terminates upon sale of the Loan to the
Seller. The Originator has good and marketable title to the Loan, free and
clear of any encumbrance, equity, loan, pledge, charge, claim, lien or
encumbrance of any type and has full right to transfer the Loan to the Seller.
n. No Defaults. As of the Cut-off Date, there was no default, breach,
-----------
violation or event permitting acceleration existing under the Loan and no event
which, with notice and the expiration of any grace or cure period, would
constitute such a default, breach, violation or event permitting acceleration
under such Loan (except payment delinquencies permitted by clause (b)
3-3
above). The Originator has not waived any such default, breach, violation or
event permitting acceleration except payment delinquencies permitted by clause
(b) above.
o. Equal Installments. The Loan, unless it is an Adjustable Rate Loan,
------------------
has a fixed Loan Interest Rate and provides for monthly payments (except, in the
case of a Balloon Loan, for the final monthly payment of such Loan) which fully
amortize the Loan over its term.
p. Enforceability. Each Loan contains customary and enforceable
--------------
provisions so as to render the rights and remedies of the holder thereof
adequate for the realization against the collateral of the benefits of the lien
provided thereby.
q. One Original. There is only one original executed promissory note,
------------
which promissory note has been delivered to the Trustee or its Custodian on or
before the Closing Date or Subsequent Transfer Date if a Subsequent Loan.
r. Genuine Documents. All documents submitted are genuine, and all other
-----------------
representations as to the Loan, including the List of Loans, are true and
correct. Any copies of documents provided by the Originator are accurate and
complete (except that, with respect to each Loan that was originated by a lender
other than the Originator, the Originator makes such representation and warranty
only to the best of the Originator's knowledge).
s. Origination. The Loan was originated by a home equity lender in the
-----------
ordinary course of such lender's business or was originated by the Originator
directly.
t. Underwriting Guidelines. Each Loan was originated or purchased in
-----------------------
accordance with the Originator's then-current underwriting guidelines.
u. Good Repair. The property described in the Loan is, to the best of the
-----------
Originator's knowledge, free of damage and in good repair.
v. Qualified Mortgage. The Loan is a "qualified mortgage" within the
------------------
meaning of the REMIC Provisions. The Originator represents and warrants that,
either as of (i) the date of origination (within the meaning of the REMIC
Provisions) or (ii) the Closing Date or, if a Subsequent Loan, the Subsequent
Transfer Date, the fair market value of the interest in real property securing
the Loan was not less than 80% of the "adjusted issue price" (in each case
within the meaning of the REMIC Provisions) of such Loan.
w. Interest Rate and Payment Amount Adjustments. With respect to each
--------------------------------------------
Adjustable Rate Loan, the Loan Interest Rate and monthly payment have been
adjusted in accordance with the terms of the Loan. All required notices of
interest rate and payment amount adjustments have been sent to the Obligor on a
timely basis and the computations of such adjustments were properly calculated.
All Loan Interest Rate adjustments have been made in strict compliance with
state and federal law and the terms of the related Loan.
x. Adjustable Rate Loans. If an Adjustable Rate Loan, it is covered by an
---------------------
American Land Title Association lender's title insurance policy, with an
adjustable rate mortgage endorsement, such endorsement substantially in the form
of ALTA Form 6.0 or 6.1. The applicable terms of the Adjustable Rate Loan
pertaining to adjustments of the Loan Interest Rate
3-4
and the monthly payment and payment adjustments in connection therewith are
enforceable and will not affect the priority of the lien of the related
mortgage. The Loan Interest Rate and monthly payment on the Adjustable Rate Loan
have been timely and appropriately adjusted, if such adjustment is required, and
the respective Obligor timely and appropriately advised.
SECTION 3.03. Additional Representations and Warranties. The Seller hereby
-----------------------------------------
represents and warrants to the Trustee for the benefit of the Certificateholders
and the Class C Certificateholder, as of the Closing Date with respect to each
Loan identified on the List of Loans attached to this Agreement as Exhibits L-1,
L-2 and L-3 and as of each Subsequent Transfer Date with respect to each
Subsequent Loan identified on the List of Loans attached to the related
Subsequent Transfer Instrument:
a. Lawful Assignment. The Loan was not originated in and is not subject
-----------------
to the laws of any jurisdiction whose laws would make the transfer of the Loan
under this Agreement or pursuant to transfers of the Certificates or Class C
Certificate unlawful or render the Loan unenforceable. The Seller has duly
executed a valid blanket assignment of the Loans transferred to the Trust, and
has transferred all its right, title and interest in such Loans. The blanket
assignment, any and all documents executed and delivered by the Seller pursuant
to Sections 2.01(b) and 2.03(b), and this Agreement each constitutes the legal,
valid and binding obligation of the Seller enforceable in accordance with its
respective terms.
b. Good Title. The Seller is the sole owner of the Loan and has the
----------
authority to sell, transfer and assign such Loan to the Trust under the terms of
this Agreement. There has been no assignment, sale or hypothecation of the Loan
by the Seller. The Seller has good and marketable title to the Loan, free and
clear of any encumbrance, equity, loan, pledge, charge, claim, lien or
encumbrance of any type and has full right to transfer the Loan to the Trust.
SECTION 3.04. Representations and Warranties Regarding the Loans in the
---------------------------------------------------------
Aggregate. The Originator has represented and warranted to the Seller in the
---------
Transfer Agreement, which representations and warranties the Seller has assigned
to the Trustee for the benefit of the Certificateholders and the Class C
Certificateholder, as of the Closing Date with respect to the Initial Loans and
Additional Loans, and as of each Subsequent Transfer Date with respect to the
related Subsequent Loans, that:
a. Amounts. As of the Closing Date, the sum of the Cut-off Date Pool
-------
Principal Balance, plus the sum of the amounts deposited in the Pre-Funding
Account pursuant to Section 2.02(l), equals at least the Original Aggregate
Certificate Principal Balance. By Cut-off Date Principal Balance, the Initial
Loans and the Additional Loans, plus the Subsequent Loans specifically
identified as of the Closing Date, represent at least 75% of the Original
Aggregate Certificate Principal Balance.
3-5
b. Characteristics.
---------------
Fixed Rate Loans. The Fixed Rate Loans have the following characteristics:
----------------
(i) 100% are secured by a mortgage, deed of trust or security deed on the
related real estate; (ii) none has a remaining maturity of more than 360 months;
(iii) no Initial or Additional Fixed Rate Loan has a final scheduled payment
date later than November 2030 and no such Subsequent Loan has a final scheduled
payment date later than January 2031; and (iv) none of the Initial or Additional
Fixed Rate Loans has a Loan Interest Rate less than 7.00%.
LTV. The weighted average (by Scheduled Principal Balance) Combined LTV of
---
the Fixed Rate Loans as of the Post-Funding Payment Date is not more than 200
basis points more than such ratio with respect to the Initial Fixed Rate Loans.
WAC. The weighted average (by Scheduled Principal Balance) of the Loan
---
Interest Rates of the Fixed Rate Loans as of the Post-Funding Payment Date is
not more than 25 basis points less than the weighted average of the Loan
Interest Rates of the Initial Fixed Rate Loans. No Subsequent Fixed Rate Loan
has a Loan Interest Rate less than 7.0%.
Debt Consolidation. As of the Closing Date and the Post-Funding Payment
------------------
Date, the percentage (by Scheduled Principal Balance) of the Fixed Rate Loans
which are identified by the Originator as debt consolidation loans is not more
than 22.50%.
Debt-to-Income. The weighted average (by Scheduled Principal Balance) of
--------------
the debt-to-income ratios of the Obligors on the Fixed Rate Loans is not more
than 45% as of the Post-Funding Payment Date.
Collateral Type. The percentage (by Scheduled Principal Balance) of the
---------------
Fixed Rate Loans as of the Post-Funding Payment Date secured by owner-occupied
dwellings is at least 96.50% and by single-family dwellings is at least 89.00%.
FICO Score. The weighted average (by Scheduled Principal Balance) FICO
----------
score of the Additional and Subsequent Fixed Rate Loans is not less than 619.
As of the Post-Funding Payment Date, the percentage of Fixed Rate Loans (by
aggregate principal balance) with a FICO score of less than 619 is not more than
2% higher than such percentage of the Initial Fixed Rate Loans.
Lien Priority. By Scheduled Principal Balance, not more than 18.78% of the
-------------
Initial Fixed Rate Loans are secured by a second priority lien and not more than
.42% are secured by a third priority lien and, as of the Post-Funding Payment
Date, not more than 22% of the Fixed Rate Loans are secured by a second priority
lien and not more than .70% are secured by a third priority lien.
Underwriting Criteria. The percentage (by Scheduled Principal Balance) of
---------------------
the Fixed Rate Loans as of the Post-Funding Payment Date which are identified by
the Originator under its standard underwriting criteria as "B," "C," and "D"
credits is not more than 300 basis points, 200 basis points, and 100 basis
points, respectively, more than the percentage of Initial Fixed Rate Loans
identified as "B," "C," and "D" credits.
3-6
Adjustable Rate Loans. The Adjustable Rate Loans have the following
---------------------
characteristics: (i) 100% are secured by a mortgage, deed of trust or security
deed creating a first lien on the related real estate; (ii) none has a remaining
maturity of more than 360 months; (iii) no Initial or Additional Adjustable Rate
Loan has a final scheduled payment date later than October 2030 and no such
Subsequent Loan has a final scheduled payment date later than January 2031; (iv)
the Loan Interest Rate on each is subject to semiannual adjustment, after an
initial period of up to 37 months, to equal the sum of (A) the per annum rate
equal to the average of interbank offered rates for six-month U.S. dollar-
denominated deposits in the London market based on quotations of major banks, as
published in The Wall Street Journal, plus (B) a fixed percentage amount
specified in the related Loan (the "gross margin"), provided that the Loan
--------
Interest Rate will not increase or decrease on any adjustment date by more than
7.00% per annum and will not exceed a maximum rate specified in the related
Loan; (v) none has a gross margin of less than 3.0% or more than 9.25%; and (vi)
none had a principal balance at origination of more than $350,000.
LTV. The weighted average (by Scheduled Principal Balance) loan to value
---
ratio of the Adjustable Rate Loans as of the Post-Funding Payment Date is not
more than 100 basis points more than such ratio with respect to the Initial
Adjustable Rate Loans.
WAC. The weighted average (by Scheduled Principal Balance) of the Loan
---
Interest Rates of the Adjustable Rate Loans as of the Post-Funding Payment Date
is not more than 25 basis points less than the weighted average of the Loan
Interest Rates of the Initial Adjustable Rate Loans.
Debt Consolidation. The percentage (by Scheduled Principal Balance) of the
------------------
Adjustable Rate Loans which are identified by the Originator as debt
consolidation loans is not more than 10%.
Collateral Type: The percentage (by Scheduled Principal Balance) of the
---------------
Adjustable Rate Loan as of the Post-Funding Payment Date secured by owner-
occupied dwellings is at least 98.00% and by single-family dwellings is at least
94.00%.
FICO Score. The weighted average (by Scheduled Principal Balance) FICO
----------
score of the Additional and Subsequent Fixed Rate Loans is not less than 600.
As of the Post-Funding Payment Date, the percentage of Fixed Rate Loans (by
aggregate principal balance) with a FICO score of less than 600 is not more than
2% higher than such percentage of the Initial Fixed Rate Loans.
Underwriting Criteria. The percentage (by Scheduled Principal Balance) of
---------------------
the Adjustable Rate Loans as of the Post-Funding Payment Date which are
identified by the Originator under its standard underwriting criteria as "B,"
"C," and "D" credits is not more than 300 basis points, 200 basis points, and
100 basis points, respectively, more than the percentage of Initial Adjustable
Rate Loans identified as "B," "C," and "D" credits.
Additional and Subsequent Loans. No Additional or Subsequent Loan is an
-------------------------------
FHA-Insured Loan.
All Loans: LTV. As of the Post-Funding Payment Date, the weighted average
---------------
(by Scheduled Principal Balance) Combined LTV of the Fixed Rate Loans is not
more than 200
3-7
basis points more than such ratio with respect to the Initial Fixed Rate Loans
and the loan to value ratio of the Adjustable Rate Loans is not more than 100
basis points more than such ratio with respect to the Initial Adjustable Rate
Loans.
c. Geographic Concentrations.
-------------------------
Fixed Rate Group I Loans. By Cut-off Date Principal Balance, 20.38% of the
------------------------
Initial and Additional Fixed Rate Group I Loans are secured by property located
in Texas, 6.11% in California and 5.05% in Florida. No other state represents
more than 5% of the aggregate Cut-off Date Principal Balances of the Initial and
Additional Fixed Rate Group I Loans.
Fixed Rate Group II Loans. By Cut-off Date Principal Balance, 15.63% of
-------------------------
the Initial and Additional Fixed Rate Group II Loans are secured by property
located in Texas and 11.20% in California. No other state represents more than
5% of the aggregate Cut-off Date Principal Balances of the Initial and
Additional Fixed Rate Group II Loans.
No more than 1% of the Fixed Rate Loans by Cut-off Date Principal Balance
are secured by property located in an area with the same five-digit zip code.
Adjustable Rate Loans. By Cut-off Date Principal Balance, 14.29% of the
---------------------
Initial and Additional Adjustable Rate Loans are secured by property located in
California, 7.17% in Ohio, 6.61% in Maryland, 5.83% in Illinois, 5.64% in North
Carolina and 5.05% in Virginia. No other state represents more than 5% of the
aggregate Cut-off Date Principal Balances of the Initial and Additional
Adjustable Rate Loans.
No more than 1% of the Adjustable Rate Loans by Cut-off Date Principal
Balance are secured by property located in an area with the same five-digit zip
code.
d. Marking Records. The Originator has caused the portions of the
---------------
Electronic Ledger relating to the Loans to be clearly and unambiguously marked
to indicate that such Loans constitute part of the Trust and are owned by the
Trust in accordance with the terms of the Trust created hereunder.
e. No Adverse Selection. No adverse selection procedures have been
--------------------
employed in selecting the Loans.
f. Lender Concentration. By Cut-off Date Principal Balance, no more than
--------------------
5% of the Fixed Rate Loans, and no more than 10% of the Adjustable Rate Loans,
were originated by any one lender (other than the Originator).
g. Home Ownership and Equity Protection Act. With respect to any Loan
----------------------------------------
subject to the Home Ownership and Equity Protection Act of 1994, each such Loan
has been originated and serviced in compliance with the provisions thereof.
h. Collection Rewrite Loans. Fewer than 1% of the Loans (by number and
------------------------
Scheduled Principal Balance) are Collection Rewrite Loans. A "Collection
Rewrite Loan" is a Loan that refinanced (before the Cut-off Date) a prior loan
as a result of collection activities on the prior loan.
3-8
SECTION 3.05. Representations and Warranties Regarding the Loan Files. The
-------------------------------------------------------
Originator has represented and warranted to the Seller in the Transfer
Agreement, which representations and warranties the Seller has assigned to the
Trustee for the benefit of the Certificateholders and the Class C
Certificateholder that:
a. Possession. On the Closing Date, the Trustee or a Custodian will have
----------
possession of each original Initial Loan and Additional Loan and the related
Loan File. On each Subsequent Transfer Date, the Originator will have
possession of each original Subsequent Loan being transferred to the Trust on
that Subsequent Transfer Date and the related Loan File. There are and there
will be no custodial agreements or servicing contracts in effect materially and
adversely affecting the rights of the Originator to make, or cause to be made,
any delivery required hereunder or under the Transfer Agreement.
b. Bulk Transfer Laws. The transfer, assignment and conveyance of the
------------------
Loans and the Loan Files by the Originator pursuant to the Transfer Agreement is
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction.
SECTION 3.06. Repurchases of Loans for Breach of Representations and
------------------------------------------------------
Warranties.
----------
a. Subject to Section 3.07, the Originator shall repurchase a Loan, at
its Repurchase Price, not later than 90 days after the day on which the
Originator, the Servicer, the Seller or the Trustee first discovers or should
have discovered a breach of a representation or warranty set forth in Sections
2.03, 3.02, 3.03, 3.04 or 3.05, or in the Officer's Certificates delivered
pursuant to Sections 2.02(j), 2.03(b)(vii), 2.06(ii) or 3.06(b)(vi), that
materially and adversely affects the Trust's, the Certificateholders' or the
Class C Certificateholder's interest in such Loan and which breach has not been
cured within such time and the Originator shall repurchase each Collection
Rewrite Loan (as defined in Section 3.04(h)), at its Repurchase Price, within 30
days of its becoming a Defaulted Loan; provided, however, that (i) in the event
-------- -------
that a party other than the Originator first becomes aware of such breach, such
discovering party shall notify the Originator in writing within 5 Business Days
of the date of such discovery and (ii) with respect to any Loan incorrectly
described on the List of Loans with respect to Cut-off Date Principal Balance,
which the Originator would otherwise be required to repurchase pursuant to this
Section, the Originator may, in lieu of repurchasing such Loan, deliver to the
Seller for deposit in the Certificate Account within 90 days from the date of
such discovery cash in an amount sufficient to cure such deficiency or
discrepancy. Any such cash so deposited shall be distributed to
Certificateholders and the Class C Certificateholder on the immediately
following Payment Date as a collection of principal or interest on such Loan,
according to the nature of the deficiency or discrepancy. Notwithstanding any
other provision of this Agreement, the obligation of the Originator under this
Section shall not terminate upon a Service Transfer pursuant to Article VII.
b. On or prior to the date that is the second anniversary of the Closing
Date, the Originator may, at its election, substitute an Eligible Substitute
Loan for a Loan that it is obligated to repurchase pursuant to Section 3.06(a)
(such Loan being referred to as the "Replaced Loan") upon satisfaction of the
following conditions:
3-9
(i) the Originator shall have conveyed to the Seller the Loan to be
substituted for the Replaced Loan and the Loan File related to such Loan
and the Originator shall have marked the Electronic Ledger indicating that
such Loan constitutes part of the Trust;
(ii) the Loan to be substituted is an Eligible Substitute Loan and
the Originator delivers an Officer's Certificate, substantially in the form
of Exhibit J-2 hereto, to the Trustee certifying that such Loan is an
Eligible Substitute Loan;
(iii) the Originator shall have delivered to the Trustee evidence of
filing of a UCC-1 financing statement executed by the Originator as debtor,
naming the Seller as secured party and filed in Minnesota, listing such
Loan to be substituted as collateral;
(iv) the Originator shall have delivered to the Trustee an Opinion
of Counsel (a) to the effect that the substitution of such Loan for such
Replaced Loan will not cause the REMIC comprising the Trust to fail to
qualify as a REMIC at any time under then applicable REMIC Provisions or
cause any "prohibited transaction" that will result in the imposition of a
tax under such REMIC Provisions and (b) to the effect of paragraph 9 of
Exhibit F hereto; and
(v) if the Scheduled Principal Balance of such Replaced Loan is
greater than the Scheduled Principal Balance of the Loan to be substituted,
the Originator shall have delivered to the Seller for deposit in the
Certificate Account the amount of such excess and shall have included in
the Officer's Certificate required by clause (ii) above a certification
that such deposit has been made.
Upon satisfaction of such conditions, the Trustee shall add such Loan to be
substituted to, and delete such Replaced Loan from, the List of Loans. Such
substitution shall be effected prior to the first Determination Date that occurs
more than 90 days after the Originator becomes aware, or should have become
aware, or receives written notice from the Trustee, of the breach referred to in
Section 3.06(a). Promptly after any such substitution of a Loan, the Originator
shall give written notice of such substitution to each of the Rating Agencies.
c. If the Originator is required to repurchase a Loan under Section
3.06(a) or has elected to substitute an Eligible Substitute Loan for a Loan
under Section 3.06(b), and if the reason for such repurchase or substitution is
that the Originator has failed to deliver to the Trustee the Loan File for the
Loan to be repurchased or substituted for (except in the case of a failure to
deliver evidence of the lien on the related improved property and evidence of
due recording of such mortgage, deed of trust or security deed, if available),
then, notwithstanding the time periods set out in Sections 3.06(a) and 3.06(b),
the Originator shall either (i) repurchase such Loan, at its respective
Repurchase Price, within 30 days of the Closing Date, or (ii) substitute an
Eligible Substitute Loan for the Loan within 90 days of the Closing Date.
d. The Originator shall defend and indemnify the Seller, the Trustee, the
Certificateholders, and the Class C Certificateholder 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 any third-party action arising out of any breach of any such
representation and warranty.
3-10
SECTION 3.07. No Repurchase Under Certain Circumstances. Notwithstanding
-----------------------------------------
any provision of this Agreement to the contrary, no repurchase or substitution
pursuant to Section 3.06 shall be made unless the Originator (at its own
expense) obtains for the Trustee an Opinion of Counsel addressed to the Trustee
that any such repurchase or substitution would not, under the REMIC Provisions,
(i) cause the REMIC comprising the Trust to fail to qualify as a REMIC while any
regular interest in such REMIC is outstanding, (ii) result in a tax on
prohibited transactions within the meaning of Section 860F(a)(2) of the Code or
(iii) constitute a contribution after the startup day subject to tax under
Section 860G(d) of the Code. The Originator diligently shall attempt to obtain
such Opinion of Counsel. In the case of a repurchase or deposit pursuant to
Section 3.06(a) or (b), the Originator shall, notwithstanding the absence of
such opinion as to the imposition of any tax as the result of such purchase or
deposit, repurchase such Loan or make such deposit and shall guarantee the
payment of such tax by paying to the Trustee the amount of such tax not later
than five Business Days before such tax shall be due and payable to the extent
that amounts previously paid over to and then held by the Trustee pursuant to
Section 6.06 are insufficient to pay such tax and all other taxes chargeable
under Section 6.06. Pursuant to Section 6.06, the Servicer is hereby directed to
withhold, and shall withhold and pay over to the Trustee, an amount sufficient
to pay such tax and any other taxes imposed on "prohibited transactions" under
Section 860F(a)(i) of the Code or imposed on "contributions after startup date"
under Section 860G(d) of the Code from amounts otherwise distributable to the
Class C Certificateholder. The Servicer shall give notice to the Trustee at the
time of such repurchase of the amounts due from the Originator pursuant to the
guarantee of the Originator described above and give notice as to who should
receive such payment.
The Trustee shall have no obligation to pay any such amounts pursuant to
this Section other than from moneys provided to it by the Originator or from
moneys held in the funds and accounts created under this Agreement. The Trustee
shall be deemed conclusively to have complied with this Section if it follows
the directions of the Originator.
In the event any tax that is guaranteed by the Originator pursuant to this
Section 3.07 is refunded to the Trust or otherwise is determined not to be
payable, the Originator shall be repaid the amount of such refund or that
portion of any guarantee payment made by the Originator that is not applied to
the payment of such tax.
SECTION 3.08. Negative Covenants of the Trust. Except as otherwise
-------------------------------
expressly permitted by this Agreement, the Trust shall not:
a. sell, transfer, exchange or otherwise dispose of any of the assets of
the Trust;
b. dissolve or liquidate in whole or in part;
c. engage, directly or indirectly, in any business other than that
arising out of the issue of the Certificates, and the actions contemplated or
required to be performed under this Agreement;
d. incur, create or assume any indebtedness for borrowed money other than
the Certificates;
3-11
e. voluntarily file a petition for bankruptcy, reorganization, assignment
for the benefit of creditors or similar proceeding; or
f. merge, convert or consolidate with any other Person.
3-12
ARTICLE IV.
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
-----------------------------------------------------------
SECTION 4.01. Transfer of Loans.
-----------------
a. On or prior to the Closing Date, or the related Subsequent Transfer
Date in the case of Subsequent Loans, the Originator shall deliver the Loan
Files to the Trustee. The Trustee shall maintain the Loan Files at its office or
with a duly appointed ▇▇▇▇▇▇▇▇�, who shall act as the agent of the Trustee on
behalf of the Certificateholders. The Trustee may release a Loan File to the
Servicer pursuant to Section 5.07. The Originator has filed a form UCC-1
financing statement regarding the sale of the Loans to the Seller, and shall
file continuation statements in respect of such UCC-1 financing statement as if
such financing statement were necessary to perfect the security interest granted
pursuant to Section 2.01. The Originator shall take any other actions necessary
to maintain the perfection of such security interest.
b. The Originator has delivered to the Trustee an Opinion of Counsel to
the effect that the execution and recording of the assignments of the mortgages,
deeds of trust and security deeds securing the Loans is not necessary, in any
jurisdiction other than the State of Maryland, to effect the assignment to the
Trustee of the Originator's lien on the real property securing each Loan. The
Originator will, or will cause the Trustee, at the Originator's expense, to file
in the appropriate recording offices within 60 days of the Closing Date, each
mortgage, deed of trust and security deed that encumbers real property located
in Maryland.
SECTION 4.02. Costs and Expenses. The Originator agrees to pay all
reasonable costs and disbursements in connection with the vesting (including the
perfection and the maintenance of perfection, as against all third parties) in
the Trust of all right, title and interest in and to the Loans (including,
without limitation, the mortgage or deed of trust on the related real estate
granted thereby).
4-1
ARTICLE V.
SERVICING OF LOANS
------------------
SECTION 5.01. Responsibility for Loan Administration. The Servicer will
--------------------------------------
have the sole obligation to manage, administer, service and make collections on
the Loans and perform or cause to be performed all contractual and customary
undertakings of the holder of the Loans to the Obligor. Conseco Finance Corp.,
if it is the Servicer, may delegate some or all of its servicing duties to a
wholly owned subsidiary of Conseco Finance Corp., for so long as such subsidiary
remains, directly or indirectly, a wholly owned subsidiary of Conseco Finance
Corp. Notwithstanding any such delegation, Conseco Finance Corp. shall retain
all of the rights and obligations of the Servicer hereunder. The Trustee, at the
request of a Servicing Officer, shall furnish the Servicer with any powers of
attorney or other documents necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties hereunder. Conseco Finance
Corp. is hereby appointed the Servicer until such time as any Service Transfer
shall be effected under Article VII.
The Servicer shall, with respect to each Adjustable Rate Loan, make
adjustments to the interest rate and the payments due on such Loan in compliance
with applicable regulatory adjustable mortgage loan requirements and the terms
of the Loan. The Servicer shall establish procedures to monitor the interest
rate adjustment dates and the interest rate in order to assure that it correctly
calculates any applicable interest rate change, and it will comply with those
procedures. The Servicer shall execute and deliver all appropriate notices
required by the applicable adjustable mortgage loan laws and regulations and the
Loans regarding such interest rate adjustments and payment adjustments.
SECTION 5.02. Standard of Care. In managing, administering, servicing and
----------------
making collections on the Loans pursuant to this Agreement, the Servicer will
exercise that degree of skill and care consistent with the highest degree of
skill and care that the Servicer exercises with respect to similar loans
(including manufactured housing contracts) serviced by the Servicer; provided,
--------
however, that such degree of skill and care shall be at least as favorable as
-------
the degree of skill and care generally applied by prudent servicers of home
equity loans for prudent institutional investors.
SECTION 5.03. Records. The Servicer shall, during the period it is
-------
servicer hereunder, maintain such books of account and other records as will
enable the Trustee to determine the status of each Loan.
SECTION 5.04. Inspection.
----------
a. At all times during the term hereof, the Servicer shall afford the
Trustee and its authorized agents reasonable access during normal business hours
to the Servicer's records relating to the Loans, which have not previously been
provided to the Trust, and will cause its personnel to assist in any examination
of such records by the Trustee. The examination referred to in this Section will
be conducted in a manner which does not unreasonably interfere with the
Servicer's normal operations or customer or employee relations. Without
otherwise limiting the scope of the examination the Trustee may make, the
Trustee may, using generally accepted audit procedures, verify the status of
each Loan and review the Electronic Ledger and records relating
5-1
thereto for conformity to Monthly Reports prepared pursuant to Article VI and
compliance with the standards represented to exist as to each Loan in this
Agreement.
b. At all times during the term hereof, the Servicer shall keep available
a copy of the List of Loans at its principal executive office for inspection by
Certificateholders.
c. A Certificateholder holding Certificates representing in the aggregate
at least 5% of the Aggregate Certificate Principal Balance shall have the rights
of inspection afforded to the Trustee pursuant to this Section 5.04.
SECTION 5.05. Certificate Account.
-------------------
a. On or before the Closing Date, the Servicer shall establish the
Certificate Account on behalf of the Trust, which shall be an Eligible Account.
The Servicer shall pay into the Certificate Account, as promptly as practicable
(but not later than the next Business Day) following receipt thereof, all
amounts received with respect to the Loans, other than extension fees and
assumption fees, which fees shall be retained by the Servicer as compensation
for servicing the Loans, and other than Liquidation Expenses permitted by
Section 5.08. The Trustee shall hold all amounts paid into the Certificate
Account under this Agreement in trust for the Trustee, the Certificateholders
and the Class C Certificateholder until payment of any such amounts is
authorized under this Agreement. Only the Trustee may withdraw funds from the
Certificate Account.
b. If the Servicer so directs, the institution maintaining the
Certificate Account shall, in the name of the Trustee in its capacity as such,
invest the amounts in the Certificate Account in Eligible Investments that
mature not later than one Business Day prior to the next succeeding Payment
Date. Any investment of funds in the Certificate Account shall be made in
Eligible Investments held by a financial institution in accordance with the
following requirements: (1) all Eligible Investments shall be held in an account
with such financial institution in the name of the Trustee, and the agreement
governing such account shall be governed by the laws of the State of Minnesota,
(2) with respect to securities held in such account, such securities shall be
(i) certificated securities (as such term is used in N.Y. U.C.C. (S) 8-
102(4)(i)), securities deemed to be certificated securities under applicable
regulations of the United States government, or uncertificated securities issued
by an issuer organized under the laws of the State of New York or the State of
Delaware, (ii) either (A) in the possession of such institution, (B) in the
possession of a clearing corporation (as such term is used in Minn. Stat. (S) 8-
102(5)) in the State of New York, registered in the name of such clearing
corporation or its nominee, not endorsed for collection or surrender or any
other purpose not involving transfer, not containing any evidence of a right or
interest inconsistent with the Trustee's security interest therein, and held by
such clearing corporation in an account of such institution, (C) held in an
account of such institution with the Federal Reserve Bank of New York or the
Federal Reserve Bank of Minneapolis, or (D) in the case of uncertificated
securities, issued in the name of such institution, and (iii) identified, by
book entry or otherwise, as held for the account of, or pledged to, the Trustee
on the records of such institution, and such institution shall have sent the
Trustee a confirmation thereof, and (3) with respect to repurchase obligations
held in such account, such repurchase obligations shall be identified by such
institution, by book entry or otherwise, as held for the account of, or pledged
to, the Trustee on the records of such institution, and the related securities
shall be held
5-2
in accordance with the requirements of clause (2) above. Once such funds are
invested, such institution shall not change the investment of such funds. All
income and gain from such investments shall be added to the Certificate Account
and distributed on such Payment Date pursuant to Section 8.04. Losses, if any,
realized on amounts in the Certificate Account invested pursuant to this
paragraph shall first be credited against undistributed investment earnings on
amounts in the Certificate Account invested pursuant to this paragraph, and
shall thereafter be deemed to reduce the amount on deposit in the Certificate
Account and otherwise available for distribution to Certificateholders and the
Class C Certificateholder pursuant to Section 8.01. The Servicer and the Trustee
shall in no way be liable for losses on amounts invested in accordance with the
provisions hereof. Funds in the Certificate Account not so invested must be
insured to the extent permitted by law by the Federal Deposit Insurance
Corporation. "Eligible Investments" are any of the following:
--------------------
(i) direct obligations of, and obligations fully guaranteed by,
the United States of America, or any agency or instrumentality of the
United States of America the obligations of which are backed by the full
faith and credit of the United States of America;
(ii) (A) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by, or federal funds sold by any depository
institution or trust company (including the Trustee or any Affiliate of the
Trustee, acting in its commercial capacity) incorporated under the laws of
the United States of America or any state thereof and subject to
supervision and examination by federal and/or state authorities, so long
as, at the time of such investment or contractual commitment providing for
such investment, the commercial paper or other short-term debt obligations
of such depository institution or trust company are rated at least A-1+ by
S&P, F-1+ by Fitch (if rated by Fitch) and P-1 by ▇▇▇▇�'� (if rated by
▇▇▇▇�'�) and (B) any other demand or time deposit or certificate of deposit
which is fully insured by the Federal Deposit Insurance Corporation;
(iii) shares of an investment company registered under the
Investment Company Act of 1940, whose shares are registered under the
Securities Act of 1933 and have a rating of AAA by each of the Rating
Agencies, and whose only investments are in securities described in clauses
(i) and (ii) above;
(iv) repurchase obligations with respect to (A) any security
described in clause (i) above or (B) any other security issued or
guaranteed by an agency or instrumentality of the United States of America,
in either case entered into with a depository institution or trust company
(acting as principal) described in clause (ii)(A) above;
(v) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States of America
or any State thereof which at the time of such investment has a credit
rating of at least AA from each of the Rating Agencies that has rated the
corporation; provided, however, that securities issued by any particular
-------- -------
corporation will not be Eligible Investments to the extent that investment
therein will cause the then outstanding principal amount of securities
issued by such corporation and held as part of the corpus of the Trust to
exceed 10% of amounts held in the Certificate Account;
5-3
(vi) commercial paper having a rating of at least A-1+ from S&P,
at least F-1+ from Fitch (if rated by Fitch) and at least P-1 from ▇▇▇▇�'�
(if rated by ▇▇▇▇�'�) at the time of such investment;
(vii) money market funds rated AAAm or AAAm-G by S&P and at least
Aa2 by ▇▇▇▇�'�; and
(viii) other obligations or securities that are acceptable to each
of the Rating Agencies as an Eligible Investment hereunder and will not
reduce the rating assigned to any Class of Certificates by each of the
Rating Agencies below the lower of the then-current rating or the rating
assigned to such Certificates as of the Closing Date by each of the Rating
Agencies, as evidenced in writing;
provided that any such investment must constitute a "cash flow investment"
--------
within the meaning of the REMIC Provisions.
The Trustee may trade with itself or an Affiliate in the purchase or sale
of such Eligible Investments.
c. If at any time the Trustee receives notice (from any of the Rating
Agencies, the Servicer or otherwise) that the Certificate Account has ceased to
be an Eligible Account, the Trustee shall, as soon as practicable but in no
event later than five Business Days of the Trustee's receipt of such notice,
transfer the Certificate Account and all funds and Eligible Investments therein
to an Eligible Account. Following any such transfer, the Trustee shall notify
each of the Rating Agencies and the Servicer of the location of the Certificate
Account.
SECTION 5.06. Enforcement.
-----------
a. The Servicer shall, consistent with customary servicing procedures,
act with respect to the Loans in such manner as will maximize the receipt of
principal and interest on such Loans and Liquidation Proceeds with respect to
Liquidated Loans.
b. In accordance with the standard of care specified in Section 5.02, the
Servicer may, in its own name, if possible, or as agent for the Trust, commence
proceedings for the foreclosure of any subject real estate, or may take such
other steps that in the Servicer's reasonable judgment will maximize Liquidation
Proceeds with respect to the Loan, including, for example, the sale of the Loan
to a third party for foreclosure or enforcement and, in the case of any default
on a related prior mortgage loan, the advancing of funds to correct such default
and the advancing of funds to pay off a related prior mortgage loan, which
advances are Liquidation Expenses that will be reimbursed to the Servicer out of
related Liquidation Proceeds before the related Net Liquidation Proceeds are
paid to Certificateholders and the Class C Certificateholder. The Servicer shall
also deposit in the Certificate Account any Net Liquidation Proceeds received in
connection with any Loan which became a Liquidated Loan in a prior Due Period.
c. The Servicer may sue to enforce or collect upon Loans, in its own
name, if possible, or as agent for the Trust. If the Servicer elects to commence
a legal proceeding to enforce a Loan, the act of commencement shall be deemed to
be an automatic assignment of the Loan to the Servicer for purposes of
collection only. If, however, in any enforcement suit or legal
5-4
proceeding it is held that the Servicer may not enforce a Loan on the ground
that it is not a real party in interest or a holder entitled to enforce the
Loan, the Trustee on behalf of the Trust shall, at the Servicer's expense, take
such steps as the Servicer deems necessary to enforce the Loan, including
bringing suit in its name or the names of the Certificateholders and the Class C
Certificateholder.
d. The Servicer may grant to the Obligor on any Loan any rebate, refund
or adjustment out of the Certificate Account that the Servicer in good faith
believes is required because of the Principal Prepayment in Full of the Loan.
The Servicer will not permit any rescission or cancellation of any Loan.
e. The Servicer shall enforce any due-on-sale clause in a Loan if such
enforcement is called for under its then current servicing policies for
obligations similar to the Loans, provided that such enforcement is permitted by
--------
applicable law and will not adversely affect any applicable insurance policy.
If an assumption of a Loan is permitted by the Servicer, upon conveyance of the
related property the Servicer shall use its best efforts to obtain an assumption
agreement in connection therewith.
f. Any provision of this Agreement to the contrary notwithstanding, the
Servicer shall not agree to the modification or waiver of any provision of a
Loan at a time when such Loan is not in default or such default is not
reasonably foreseeable, if such modification or waiver would both (i) be treated
as a taxable exchange under Section 1001 of the Code or any proposed, temporary
or final Treasury Regulations promulgated thereunder and (ii) cause the Trust to
fail to qualify as a REMIC or cause the imposition of any tax on "prohibited
transactions" or "contributions after the startup date" under the REMIC
Provisions.
SECTION 5.07. Trustee to Cooperate.
--------------------
a. Upon payment in full on any Loan, the Servicer will notify the Trustee
and Conseco Finance Corp. (if Conseco Finance Corp. is not the Servicer) on the
next succeeding Payment Date by certification of a Servicing Officer (which
certification shall include a statement to the effect that all amounts received
in connection with such payments which are required to be deposited in the
Certificate Account pursuant to Section 5.05 have been so deposited) and shall
request delivery of the Loan and Loan File to the Servicer. Upon receipt of such
delivery and request, the Trustee shall promptly release or cause to be released
such Loan and Loan File to the Servicer. Upon receipt of such Loan and Loan
File, each of Conseco Finance Corp. (if different from the Servicer) and the
Servicer is authorized to execute an instrument in satisfaction of such Loan and
to do such other acts and execute such other documents as the Servicer deems
necessary to discharge the Obligor thereunder and eliminate any lien on the
related real estate. The Servicer shall determine when a Loan has been paid in
full; provided that, to the extent that insufficient payments are received on a
--------
Loan credited by the Servicer as prepaid or paid in full and satisfied, the
shortfall shall be paid by the Servicer out of its own funds, without any right
of reimbursement therefor (except from additional amounts recovered from the
related Obligor or otherwise in respect of such Loan), and deposited in the
Certificate Account.
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b. From time to time as appropriate for servicing and foreclosing in
connection with a Loan, the Trustee shall, upon written request of a Servicing
Officer and delivery to the Trustee of a receipt signed by such Servicing
Officer, cause the original Loan and the related Loan File to be released to the
Servicer and shall execute such documents as the Servicer shall deem necessary
to the prosecution of any such proceedings. The Trustee shall stamp the face of
each such Loan to be released to the Servicer with a notation that the Loan has
been assigned to the Trustee. Upon request of a Servicing Officer, the Trustee
shall perform such other acts as reasonably requested by the Servicer and
otherwise cooperate with the Servicer in enforcement of the Certificateholders'
and Class C Certificateholder rights and remedies with respect to Loans.
c. The Servicer's receipt of a Loan and/or Loan File shall obligate the
Servicer to return the original Loan and the related Loan File to the Trustee
when its need by the Servicer has ceased unless the Loan shall be liquidated or
repurchased or replaced as described in Section 3.06 or Section 8.06.
SECTION 5.08. Costs and Expenses. All costs and expenses incurred by the
------------------
Servicer in carrying out its duties hereunder, including payment of all fees and
expenses incurred in connection with the enforcement of Loans, foreclosure upon
real estate securing Loans, all other fees and expenses not expressly stated
hereunder to be for the account of the Trust or the Originator, and, while the
Originator or a subsidiary or affiliate of the Originator is Servicer, payment
of the Trustee's fees pursuant to Section 11.06 and fees and expenses of
accountants, shall be paid by the Servicer and the Servicer shall not be
entitled to reimbursement hereunder, except as provided in this Section and
Section 8.04 and except that the Servicer shall be reimbursed out of the
Liquidation Proceeds of a Liquidated Loan for customary out-of-pocket
Liquidation Expenses incurred by it. The Servicer shall not incur such
Liquidation Expenses unless it determines in its good faith business judgment
that incurring such expenses will increase the Net Liquidation Proceeds on the
related Loan. So long as the Servicer is not the Originator or a subsidiary or
affiliate of the Originator, the Servicer shall be reimbursed for any third
party costs incurred by it pursuant to Sections 6.06 or 11.06.
If the Servicer fails to make a timely interest rate or monthly payment
adjustment on an Adjustable Rate Loan, the Servicer shall use its own funds to
satisfy any shortage in the Obligor's remittance so long as such shortage shall
continue; any such amount paid by the Servicer shall be reimbursable to it from
any subsequent amounts collected on account of the related Loan with respect to
such adjustments.
SECTION 5.09. Maintenance of Insurance. The Servicer shall at all times
------------------------
keep in force a policy or policies of insurance covering errors and omissions
for failure to maintain insurance as required by this Agreement, and a fidelity
bond. Such policy or policies and such fidelity bond shall be in such form and
amount as is generally customary among persons who service a portfolio of home
equity loans having an aggregate principal amount of $10,000,000 or more, and
which are generally regarded as servicers acceptable to institutional investors.
The Servicer shall cause to be maintained with respect to the real property
securing a Loan hazard insurance (excluding flood insurance coverage) if such
Loan is secured by a first priority mortgage, deed of trust or security deed or
the initial principal balance of such Loan exceeds $30,000.
5-6
SECTION 5.10. Merger or Consolidation of Servicer. Any Person into which
-----------------------------------
the Servicer may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Servicer shall be a party shall be the successor of the Servicer hereunder,
provided such Person shall be an Eligible Servicer, without the execution or
--------
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. The Servicer shall promptly
notify each of the Rating Agencies in the event it is a party to any merger,
conversion or consolidation.
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ARTICLE VI.
REPORTS AND TAX MATTERS
-----------------------
SECTION 6.01. Monthly Reports. No later than one Business Day following
---------------
each Determination Date, the Servicer shall deliver to the Trustee and the
Rating Agencies a Monthly Report, substantially in the form of Exhibit M hereto.
SECTION 6.02. Officer's Certificate. Each Monthly Report pursuant to
---------------------
Section 6.01 shall be accompanied by a certificate of a Servicing Officer
substantially in the form of Exhibit H, certifying the accuracy of the Monthly
Report and that no Event of Termination or event that with notice or lapse of
time or both would become an Event of Termination has occurred, or if such event
has occurred and is continuing, specifying the event and its status.
SECTION 6.03. Other Data. In addition, the Originator and (if different
----------
from the Originator) the Servicer shall, on request of the Trustee or any of the
Rating Agencies, furnish the Trustee and/or any such Rating Agencies such
underlying data as may be reasonably requested.
SECTION 6.04. Annual Report of Accountants. Within four months after its
----------------------------
fiscal year end, the Servicer at its expense shall cause a firm of independent
public accountants which is a member of the American Institute of Certified
Public Accountants to issue to the Trustee a report that such firm has examined
selected documents, records and management's assertions relating to loans
serviced by the Servicer and stating that, on the basis of such examination,
such servicing has been conducted in compliance with the minimum servicing
standards identified in the Mortgage Bankers Association of America's Uniform
Single Attestation Program for Mortgage Bankers, or any successor uniform
program, except for such significant exceptions or errors in records that, in
the opinion of such firm, generally accepted attestation standards requires it
to report.
SECTION 6.05. Statements to Certificateholders and the Class C
------------------------------------------------
Certificateholder.
-----------------
a. On or before the third Business Day next preceding each Payment Date,
the Servicer shall prepare and furnish to the Trustee the statements specified
below with respect to the distribution on such Payment Date. Concurrently with
each distribution to Certificateholders, the Trustee shall forward such
statements by mail, or cause them to be forwarded by mail, to the
Certificateholders as described below and (if the Originator is not the
Servicer) the Originator.
b. The statements for the Class A Certificateholders shall include the
following information:
(i) the amount of the distribution to Holders of each Class of
Class A Certificates allocable to interest, separately identifying any
Unpaid Class A Interest Shortfall included in such distribution and any
remaining Unpaid Class A Interest Shortfall after giving effect to such
distribution;
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(ii) the amount of the distribution to Holders of each Class of
Class A Certificates allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments included therein;
(iii) the amount, if any, by which the Class AV-1 Formula
Principal Distribution Amount, Class AF-1A Formula Principal Distribution
Amount and allocable portion of the Class AF Group II Formula Principal
Distribution Amount exceeds the Principal Distribution Amount for the Class
AV-1 Certificates, Class AF-1A Certificates and each Class of Class AF
Group II Certificates, respectively;
(iv) the Class Principal Balance of each Class of Class A
Certificates after giving effect to the distribution of principal on such
Payment Date;
(v) the Pool Scheduled Principal Balance, and of that amount the
aggregate Scheduled Principal Balances of the Adjustable Rate Loans and the
Fixed Rate Loans, for such Payment Date;
(vi) the Senior Enhancement Percentage for the Fixed Rate
Certificates and the Adjustable Rate Certificates, respectively;
(vii) the Pool Factor;
(viii) the number and aggregate principal balances of Loans,
identifying separately the Adjustable Rate Loans and the Fixed Rate Loans,
delinquent (a) 30-59 days, (b) 60-89 days and (c) 90 or more days;
(ix) the Average Sixty-Day Delinquency Ratio Test for the Fixed
Rate Loans and for the Adjustable Rate Loans (as set forth in Exhibit M
hereto);
(x) the Cumulative Realized Losses Test for the Fixed Rate Loans
and for the Adjustable Rate Loans (as set forth in Exhibit M hereto);
(xi) the aggregate principal balance of any Defaulted Loans
(including Loans in foreclosure and REO) and the number of Liquidated
Loans, identifying such Loans (including those which are Adjustable Rate
Loans and those which are Fixed Rate Loans), their aggregate unpaid
principal balance (separately identifying the unpaid principal balance of
all REO), and the Net Liquidation Loss on such Loans;
(xii) the Pre-Funded Fixed Rate Group I Amount, the Pre-Funded
Fixed Rate Group II Amount and the Pre-Funded ARM Amount for such Payment
Date; and
(xiii) the Target Overcollateralization Amount and
Overcollateralization Amount for the Fixed Rate Certificates and for the
Adjustable Rate Certificates, after giving effect to distributions of
principal on such Payment Date.
The Trustee and the Servicer shall, if any Certificateholder, the Class C
Certificateholder or any Underwriter inquires by telephone, provide the
information contained in the most recent Monthly Report.
6-2
In the case of information furnished pursuant to clauses (i) through (iv)
above, the amounts shall be expressed as a dollar amount per Class A Certificate
with a 1% Percentage Interest or $1,000 denomination.
Within 75 days after the end of each calendar year, the Certificate
Registrar shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class A Certificate a statement
containing the information with respect to interest accrued and principal paid
on its Class A Certificates during such calendar year. Such obligation of the
Certificate Registrar shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Certificate
Registrar pursuant to any requirements of the Code as from time to time in
force.
c. The Class MF-1 and Class MV-1 Certificateholders shall receive a copy
of the information furnished to the Class A Certificateholders and the following
information:
(i) the amount of the distribution to Holders of Class MF-1 and
Class MV-1 Certificates allocable to interest, separately identifying any
Unpaid Class MF-1 Interest Shortfall or Unpaid Class MV-1 Interest
Shortfall included in such distribution and any remaining Unpaid Class MF-1
Interest Shortfall or Unpaid Class MV-1 Interest Shortfall after giving
effect to such distribution;
(ii) the amount of the distribution to Holders of Class MF-1 and
Class MV-1 Certificates allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments included therein;
(iii) the amount, if any, by which the Class MF-1 Formula
Principal Distribution Amount and Class MV-1 Formula Principal Distribution
Amount exceeds the Principal Distribution Amount for the Class MF-1 and
Class MV-1 Certificates, respectively, on such Payment Date;
(iv) the Class MF-1 Principal Balance and the Class MV-1
Principal Balance after giving effect to the distribution of principal on
such Payment Date;
(v) the Unpaid Class MF-1 Liquidation Loss Interest Shortfall
and Unpaid Class MV-1 Liquidation Loss Interest Shortfall after giving
effect to distributions on such Payment Date; and
(vi) the information set forth in clauses (v) through (xiii) of
Section 6.05(b).
In the case of the information in clauses (i) through (v) above, the
amounts shall be expressed as a dollar amount per Class MF-1 and per Class MV-1
Certificate with a 1% Percentage Interest or $1,000 denomination.
Within 75 days after the end of each calendar year, the Certificate
Registrar shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class MF-1 or Class MV-1
Certificate a statement containing the applicable distribution information
provided pursuant to this Section aggregated for such calendar year or
applicable portion thereof during which such Person was the Holder of a Class
MF-1 or Class MV-1
6-3
Certificate. Such obligation of the Certificate Registrar shall be deemed to
have been satisfied to the extent that substantially comparable information
shall be provided by the Certificate Registrar pursuant to any requirements of
the Code as from time to time in force.
d. The Class MF-2 and Class MV-2 Certificateholders shall receive a copy
of the information forwarded to the Holders of Class A and Class MF-1 and Class
MV-1 Certificates and the following information:
(i) the amount of the distribution to Holders of Class MF-2 and
Class MV-2 Certificates allocable to interest, separately identifying any
Unpaid Class MF-2 Interest Shortfall or Unpaid Class MV-2 Interest
Shortfall included in such distribution and any remaining Unpaid Class MF-2
Interest Shortfall or Unpaid Class MV-2 Interest Shortfall after giving
effect to such distribution;
(ii) the amount of the distribution to Holders of Class MF-2 and
Class MV-2 Certificates allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments included therein;
(iii) the amount, if any, by which the Class MF-2 Formula
Principal Distribution Amount and the Class MV-2 Formula Principal
Distribution Amount exceeds the Principal Distribution Amount for the Class
MF-2 and Class MV-2 Certificates, respectively, on such Payment Date;
(iv) the Class MF-2 Principal Balance and the Class MV-2
Principal Balance after giving effect to the distribution of principal on
such Payment Date;
(v) the Unpaid Class MF-2 Liquidation Loss Interest Shortfall
and Unpaid Class MV-2 Liquidation Loss Interest Shortfall after giving
effect to distributions on such Payment Date; and
(vi) the information set forth in clauses (v) through (xiii) of
Section 6.05(b).
In the case of the information in clauses (i) through (v) above, the
amounts shall be expressed as a dollar amount per Class MF-2 and per Class MV-2
Certificate with a 1% Percentage Interest or $1,000 denomination.
Within 75 days after the end of each calendar year, the Certificate
Registrar shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class MF-2 or Class MV-2
Certificate a statement containing the applicable distribution information
provided pursuant to this Section aggregated for such calendar year or
applicable portion thereof during which such Person was the Holder of a Class
MF-2 or Class MV-2 Certificate. Such obligation of the Certificate Registrar
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Certificate Registrar pursuant
to any requirements of the Code as from time to time in force.
e. The Class BF-1 and Class BV-1 Certificateholders shall receive a copy
of the information forwarded to the Holders of Class A and Class M Certificates
and the following information:
6-4
(i) the amount of the distribution to Holders of Class BF-1 and
Class BV-1 Certificates allocable to interest, separately identifying any
Unpaid Class BF-1 Interest Shortfall and Unpaid Class BV-1 Interest
Shortfall included in such distribution and any remaining Unpaid Class BF-1
Interest Shortfall and Unpaid Class BV-1 Interest Shortfall after giving
effect to such distribution;
(ii) the amount of the distribution to Holders of Class BF-1 and
Class BV-1 Certificates allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments included therein;
(iii) the amount, if any, by which the Class BF-1 Formula Principal
Distribution Amount and Class BV-1 Formula Principal Distribution Amount
exceeds the Principal Distribution Amount for the Class BF-1 and Class BV-1
Certificates, respectively, on such Payment Date;
(iv) the Class BF-1 Principal Balance, and the Class BV-1 Principal
Balance, after giving effect to the distribution of principal on such
Payment Date;
(v) the Unpaid Class BF-1 Liquidation Loss Interest Shortfall and
Unpaid Class BV-1 Liquidation Loss Interest Shortfall after giving effect
to any distribution on such Payment Date; and
(vi) the information set forth in clauses (v) through (xiii) of
Section 6.05(b).
In the case of the information in clauses (i) through (v) above, the
amounts shall be expressed as a dollar amount per Class BF-1 or Class BV-1
Certificate with a 1% Percentage Interest or $1,000 denomination.
Within 75 days after the end of each calendar year, the Certificate
Registrar shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class BF-1 or Class BV-1
Certificate a statement containing the applicable distribution information
provided pursuant to this Section aggregated for such calendar year or
applicable portion thereof during which such Person was the Holder of a Class
BF-1 or Class BV-1 Certificate. Such obligation of the Certificate Registrar
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Certificate Registrar pursuant
to any requirements of the Code as from time to time in force.
f. The Class BF-2 and Class BV-2 Certificateholders shall receive a copy
of the information forwarded to the Holders of Class A, Class M and Class B-1
Certificates and the following information:
(i) the amount of the distribution to Holders of Class BF-2 and
Class BV-2 Certificates allocable to interest, separately identifying any
Unpaid Class BF-2 Interest Shortfall and Unpaid Class BV-2 Interest
Shortfall included in such distribution and any remaining Unpaid Class BF-2
Interest Shortfall and Unpaid Class BV-2 Interest Shortfall after giving
effect to such distribution;
6-5
(ii) the amount of the distribution to Holders of Class BF-2 and BV-2
Certificates allocable to principal, separately identifying the aggregate
amount of any Principal Prepayments included therein;
(iii) the amount, if any, by which the Class BF-2 Formula Principal
Distribution Amount and the Class BV-2 Formula Principal Distribution
Amount exceeds the Principal Distribution Amount for the Class BF-2 and
Class BV-2 Certificates, respectively, on such Payment Date;
(iv) the Class BF-2 Principal Balance and the Class BV-2 Principal
Balance after giving effect to distributions of principal on such Payment
Date; and
(v) the information set forth in clauses (v) through (xiii) of
Section 6.05(b).
In the case of the information in clauses (i) through (iv) above, the
amounts shall be expressed as a dollar amount per Class BF-2 and BV-2
Certificate with a 1% Percentage Interest or $1,000 denomination.
Within 75 days after the end of each calendar year, the Certificate
Registrar shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class BF-2 or Class BV-2
Certificate a statement containing the applicable distribution information
provided pursuant to this Section aggregated for such calendar year or
applicable portion thereof during which such Person was the Holder of a Class
BF-2 or Class BV-2 Certificate. Such obligation of the Certificate Registrar
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Certificate Registrar pursuant
to any requirements of the Code as from time to time in force.
g. Copies of all reports and statements provided to the Trustee for the
Certificateholders shall also be provided to the Rating Agencies and the Class C
Certificateholder.
SECTION 6.06. Payment of Taxes. The Servicer shall be responsible for and
----------------
agrees to prepare, make and timely file all federal, state, local or other tax
returns, information statements and other returns and documents of every kind
and nature whatsoever required to be made or filed by or on behalf of the Trust
pursuant to the Code and other applicable tax laws and regulations. Each such
return, statement and document shall, to the extent required by the Code or
other applicable law and at the request of the Servicer, be signed on behalf of
the Trust by the Trustee. The Trustee shall have no responsibility whatsoever
for the accuracy or completeness of any such return, statement or document. The
Servicer agrees to indemnify the Trustee and hold it harmless for, from, against
and in respect to any and all liability, loss, damage and expense which may be
incurred by the Trustee based upon or as a result of the Trustee's execution of
any and all such tax returns, statements and documents. The Servicer, if and for
so long as it is the Class C Certificateholder, shall be designated the "tax
matters person" on behalf of the Trust in the same manner as a partnership may
designate a "tax matters partner," as such term is defined in Section 6231(a)(7)
of the Code. To the extent permitted by the REMIC Provisions, any subsequent
holder of the Class C Certificate, by acceptance thereof, irrevocably designates
and appoints the Servicer as its agent to perform the responsibilities of the
"tax
6-6
matters person" on behalf of the Trust if, and during such time as, the Servicer
is not the holder of the Class C Certificate. The Servicer may, at its expense
if the Originator or a subsidiary or affiliate of the Originator is the
Servicer, or subject to reimbursement under Section 5.08 and 8.04(a)(3) if a
successor Servicer, retain such outside assistance as it deems necessary in the
performance of its obligations under this paragraph. The Servicer shall provide
to the Internal Revenue Service the name, title, address and telephone number of
the person who will serve as the representative of the REMIC.
Each of the Holders of the Certificates or the Class C Certificate, by
acceptance thereof, agrees to file tax returns consistent with and in accordance
with any elections, decisions or other reports made or filed with regard to
federal, state or local taxes on behalf of the Trust. The Servicer, as tax
matters person or as agent for the tax matters person, shall represent the Trust
in connection with all examinations of the Trust's affairs by tax authorities,
including resulting administrative and judicial proceedings. Each of the Holders
of the Certificates and Class C Certificate, by acceptance thereof, agrees to
cooperate with the Servicer in such matters and to do or refrain from doing any
or all things reasonably required by the Servicer to conduct such proceedings,
provided that no such action shall be required by the Servicer of any
--------
Certificateholder that would entail unnecessary or unreasonable expenses for
such Certificateholder in the performance of such action.
The Class C Certificateholder shall pay, on behalf of the Trust, any
foreign, federal, state or local income, property, excise, sales, receipts or
any other similar or related taxes or charges which may be imposed upon the
assets of the Trust comprising a REMIC or otherwise and shall, to the extent
provided in Section 10.06, be entitled to be reimbursed out of the Certificate
Account or, if such tax or charge results from a failure by the Trustee, the
Originator or any Servicer to comply with the provisions of Section 2.05 or
3.07, or a failure by any Servicer to comply with the provisions of this Section
6.06, the Trustee, the Originator or such Servicer, as the case may be, shall
indemnify the Class C Certificateholder for the payment of any such tax or
charge. The Trustee shall be entitled to withhold from amounts otherwise
distributable to the Class C Certificateholder any taxes or charges payable by
the Class C Certificateholder hereunder.
In the event a Class C Certificate is transferred to a "disqualified
organization," within the meaning of Section 860E(e)(5) of the Code, pursuant to
Section 860D(a)(6)(B) of the Code the Originator shall provide to the Internal
Revenue Service and the persons specified in Sections 860(E)(e)(5) and (6) of
the Code all information necessary for the application of Section 860E(e) and
any other applicable provision of the Code with respect to the transfer of the
Class C Certificate to such disqualified organization including, without
limitation, a computation showing the present value of the total anticipated
excess inclusions with respect to such Class C Certificate for periods after the
transfer as defined in the REMIC Provisions. In addition, to the extent required
by the REMIC Provisions, the Originator shall, upon the written request of
persons designated in Section 860E(e)(5) of the Code, furnish to such requesting
party and the Internal Revenue Service information sufficient to compute the
present value of anticipated excess inclusions within 60 days of the receipt of
such written request.
6-7
ARTICLE VII.
SERVICE TRANSFER
----------------
SECTION 7.01. Events of Termination. "Event of Termination" means the
--------------------- --------------------
occurrence of any of the following:
a. Any failure by the Servicer to make any payment or deposit required to
be made hereunder (including an Advance) and the continuance of such failure for
a period of four Business Days;
b. Failure on the Servicer's part to observe or perform in any material
respect any covenant or agreement in this Agreement (other than a covenant or
agreement which is elsewhere in this Section specifically dealt with) which
continues unremedied for 30 days;
c. Any assignment or delegation by the Servicer of its duties or rights
hereunder except as specifically permitted hereunder, or any attempt to make
such an assignment or delegation;
d. A court having jurisdiction in the premises shall have entered a
decree or order for relief in respect of the Servicer in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Servicer, as the case may be,
or for any substantial liquidation of its affairs;
e. The Servicer shall have commenced a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall have consented to the entry of an order for relief in an
involuntary case under any such law, or shall have consented to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian
or sequestrator (or other similar official) of the Servicer or for any
substantial part of its property, or shall have made any general assignment for
the benefit of its creditors, or shall have failed to, or admitted in writing
its inability to, pay its debts as they become due, or shall have taken any
corporate action in furtherance of the foregoing;
f. The failure of the Servicer to be an Eligible Servicer; or
g. If Conseco Finance Corp. is the Servicer, the servicing rights of
Conseco Finance Corp. under its master seller-servicer agreement with GNMA are
terminated by GNMA.
SECTION 7.02. Transfer. If an Event of Termination has occurred and is
--------
continuing, either the Trustee or Certificateholders, in the aggregate,
representing 25% or more of the Aggregate Certificate Principal Balance, by
notice in writing to the Servicer (and to the Trustee if given by the
Certificateholders) may terminate all (but not less than all) of the Servicer's
management, administrative, servicing and collection functions (such termination
being herein called a "Service Transfer"). On receipt of such notice (or, if
later, on a date designated therein), all authority and power of the Servicer
under this Agreement, whether with respect to the Loans, the Loan Files or
otherwise (except with respect to the Certificate Account, the transfer of which
shall be governed by Section 7.06), shall pass to and be vested in the Trustee
pursuant to and under this Section 7.02; and, without limitation, the Trustee is
authorized
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and empowered to execute and deliver on behalf of the Servicer, as attorney-in-
fact or otherwise, any and all documents and other instruments, and to do any
and all acts or things necessary or appropriate to effect the purposes of such
notice of termination. The Trustee shall cause all assignments of mortgages,
deeds of trust or security deeds securing the Loans to be duly recorded. Each of
the Originator and the Servicer agrees to cooperate with the Trustee in
effecting the termination of the responsibilities and rights of the Servicer
hereunder, including, without limitation, the transfer to the Trustee for
administration by it of all cash amounts which shall at the time be held by the
Servicer for deposit, or have been deposited by the Servicer, in the Certificate
Account, or for its own account in connection with its services hereafter or
thereafter received with respect to the Loans. The Servicer shall transfer to
the new servicer (i) the Servicer's records relating to the Loans in such
electronic form as the new servicer may reasonably request and (ii) any Loan
Files in the Servicer's possession.
SECTION 7.03. Trustee to Act; Appointment of Successor. On and after the
----------------------------------------
time the Servicer receives a notice of termination pursuant to Section 7.02, the
Trustee shall be the successor in all respects to the Servicer in its capacity
as servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms and provisions hereof, and
the Servicer shall be relieved of such responsibilities, duties and liabilities
arising after such Service Transfer; provided, however, that (i) the Trustee
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will not assume any obligations of the Originator pursuant to Section 3.06, and
(ii) the Trustee shall not be liable for any acts or omissions of the Servicer
occurring prior to such Service Transfer or for any breach by the Servicer of
any of its obligations contained herein or in any related document or agreement.
As compensation therefor, the Trustee shall be entitled to receive reasonable
compensation out of the Monthly Servicing Fee. Notwithstanding the above, the
Trustee may, if it shall be unwilling so to act, or shall, if it is legally
unable so to act, appoint, or petition a court of competent jurisdiction to
appoint, an Eligible Servicer as the successor to the Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Servicer hereunder. Pending appointment of a successor to the Servicer
hereunder, unless the Trustee is prohibited by law from so acting, the Trustee
shall act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Loans as it and such successor
shall agree; provided, however, that no such monthly compensation shall, without
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the written consent of 100% of the Certificateholders, exceed the Monthly
Servicing Fee. The Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
SECTION 7.04. Notification to Certificateholders and Class C
----------------------------------------------
Certificateholder.
-----------------
a. Promptly following the occurrence of any Event of Termination, the
Servicer shall give written notice thereof to the Trustee, to each of the Rating
Agencies, to the Certificateholders and to the Class C Certificateholder at
their respective addresses appearing on the Certificate Register.
b. Within 10 days following any termination or appointment of a successor
to the Servicer pursuant to this Article VII, the Trustee shall give written
notice thereof to each of the
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Rating Agencies, to the Certificateholders and to the Class C Certificateholder
at their respective addresses appearing on the Certificate Register.
SECTION 7.05. Effect of Transfer.
------------------
a. After the Service Transfer, the Trustee or new Servicer shall notify
Obligors to make payments directly to the new Servicer that are due under the
Loans after the effective date of the Service Transfer.
b. After the Service Transfer, the replaced Servicer shall have no
further obligations with respect to the management, administration, servicing or
collection of the Loans and the new Servicer shall have all of such obligations,
except that the replaced Servicer will transmit or cause to be transmitted
------
directly to the new Servicer for its own account, promptly on receipt and in the
same form in which received, any amounts (properly endorsed where required for
the new Servicer to collect them) received as payments upon or otherwise in
connection with the Loans.
c. A Service Transfer shall not affect the rights and duties of the
parties hereunder (including but not limited to the indemnities of the Servicer
and the Originator pursuant to Article X and Sections 3.07, 11.06 and 11.12(f))
other than those relating to the management, administration, servicing or
collection of the Loans after the Service Transfer.
SECTION 7.06. Transfer of Certificate Account. Notwithstanding the
-------------------------------
provisions of Section 7.02, if the Certificate Account shall be maintained with
the Servicer and an Event of Termination shall occur and be continuing, the
Servicer shall, after five days' written notice from the Trustee, or in any
event within ten days after the occurrence of the Event of Termination,
establish a new account or accounts in trust for the Certificateholders and the
Class C Certificateholder conforming with the requirements of this Agreement at
the corporate trust department of the Trustee or with an institution other than
the Servicer and promptly cause the Trustee to transfer all funds in the
Certificate Account to such new account, which shall thereafter be deemed the
Certificate Account for the purposes hereof.
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ARTICLE VIII.
PAYMENTS
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SECTION 8.01. Monthly Payments.
----------------
a. Subject to the terms of this Article VIII, each Holder of a
Certificate or the Class C Certificate as of a Record Date shall be paid on the
next succeeding Payment Date by check mailed to such Certificateholder or Class
C Certificateholder at the address for such Certificateholder or Class C
Certificateholder appearing on the Certificate Register (or, if such
Certificateholder holds Certificates of a Class with an aggregate Percentage
Interest of at least 5% of such Class and so requests, by wire transfer pursuant
to instructions delivered to the Trustee at least 10 days prior to such Payment
Date), the sum equal to such Certificateholder's or Class C Certificateholder's
Percentage Interest of the Distribution Amount for its Class. Final payment of
any Certificate or the Class C Certificate shall be made only upon presentation
and surrender of such Certificate or Class C Certificate at the office or agency
of the Paying Agent.
b. Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, which shall credit the amount of such distribution to
the accounts of its Depository Participants in accordance with its normal
procedures. Each Depository Participant shall be responsible for disbursing such
distribution to the Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the Certificate Owners that it represents. All such credits
and disbursements with respect to a Book-Entry Certificate are to be made by the
Depository and the Depository Participants in accordance with the provisions of
the Book-Entry Certificates. Neither the Trustee, the Certificate Registrar, the
Seller nor the Originator shall have any responsibility therefor except as
otherwise provided by applicable law. To the extent applicable and not contrary
to the rules of the Depository, the Trustee shall comply with the provisions of
the form of the Certificates as set forth in Exhibits A through C hereto, and
the Class C Certificate as set forth in Exhibit I hereto.
c. The Trustee shall either act as the paying agent or appoint an
Eligible Institution to be the paying agent (in either such case, the "Paying
Agent") to make the payments to the Certificateholders and the Class C
Certificateholder required hereunder. The Trustee's corporate trust operations
department, with an office at ▇▇� ▇▇▇▇ ▇▇▇▇� ▇▇▇▇▇▇, ▇▇▇▇� ▇▇▇▇�, ▇▇. ▇▇▇▇,
▇▇▇▇▇▇▇▇� ▇▇▇▇�, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇�-▇▇▇▇, shall initially act as Paying
Agent. The Trustee shall require the Paying Agent (if other than the Trustee) to
agree in writing that all amounts held by the Paying Agent for payment hereunder
will be held in trust for the benefit of the Certificateholders and the Class C
Certificateholder and that it will notify the Trustee of any failure by the
Servicer to make funds available to the Paying Agent for the payment of amounts
due on the Certificates and the Class C Certificate.
SECTION 8.02. Advances.
--------
a. Not later than one Business Day following the Determination Date, the
Servicer shall advance all Delinquent Payments, including insurance and taxes
due, for the immediately preceding Due Period by depositing the aggregate amount
of such Delinquent Payments with respect to any Loan in the Certificate Account;
provided, however, that the Servicer shall be
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obligated to advance Delinquent Payments only to the extent that the Servicer,
in its sole discretion, expects to be able to recover such Advances from funds
subsequently collected with respect to such Loan. If the Servicer fails to
advance all Delinquent Payments required under this Section 8.02, the Trustee
shall be obligated to advance such Delinquent Payments pursuant to Section
11.15.
b. The Servicer shall be entitled to reimbursement of an Advance from
payments on the related Loan in accordance with Section 8.04(a).
SECTION 8.03. RESERVED.
SECTION 8.04. Permitted Withdrawals from the Certificate Account; Payments
------------------------------------------------------------
(a) The Trustee shall, from time to time as provided herein, make
withdrawals from the Certificate Account of amounts deposited in said account
pursuant to Section 5.05 that are attributable to the Loans for the following
purposes:
(1) to make payments in the amounts and in the manner provided for in
Sections 8.04(b) through 8.04(e);
(2) to pay to the Originator with respect to each Loan or property
acquired in respect thereof that has been repurchased or replaced pursuant
to Section 3.06, all amounts received thereon and not required to be
distributed to Certificateholders as of the date on which the related
Scheduled Principal Balance or Repurchase Price is determined;
(3) to reimburse the Servicer for Advances made as provided in
Section 8.02(a) and amounts described in 5.08 and to reimburse the Trustee
for Trustee Advances made as provided in Section 11.15, in each case from
funds collected in respect of the related Loan;
(4) to withdraw any amount deposited in the Certificate Account that
was not required to be deposited therein; or
(5) to make any rebates or adjustments deemed necessary by the
Servicer pursuant to Section 5.06(d).
Since, in connection with withdrawals pursuant to clause (3), the
Servicer's entitlement thereto is limited to collections or other recoveries on
the related Loan, the Servicer shall keep and maintain separate accounting, on a
Loan by Loan basis, for the purpose of justifying any withdrawal from the
Certificate Account pursuant to such clause.
(b) On each Payment Date, the Trustee shall apply the Amount Available for
the Adjustable Rate Certificates for such Payment Date to make payment in the
following order of priority, subject to Section 8.04(e):
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(1) if neither Conseco Finance Corp. nor a wholly owned subsidiary of
the Originator is the Servicer, to the Servicer, the Monthly Servicing Fee,
and any other compensation owed to the Servicer pursuant to Section 7.03,
with respect to the Adjustable Rate Loans;
(2) to the Class AV-1 Certificateholders:
(i) one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December
15, 2000) at the Class AV-1 Pass-Through Rate on the Class AV-1
Principal Balance; and
(ii) the Unpaid Class A Interest Shortfall for the Class AV-1
Certificates;
(3) to the Class MV-1 Certificateholders the Class MV-1 Formula
Interest Distribution Amount;
(4) to the Class MV-2 Certificateholders the Class MV-2 Formula
Interest Distribution Amount;
(5) to the Class BV-1 Certificateholders the Class BV-1 Formula
Interest Distribution Amount;
(6) to the Class AV-1 Certificateholders, the Class AV-1 Formula
Principal Distribution Amount;
(7) to the Class MV-1 Certificateholders, the Class MV-1 Formula
Principal Distribution Amount;
(8) to the Class MV-2 Certificateholders, the Class MV-2 Formula
Principal Distribution Amount;
(9) to the Class BV-1 Certificateholders, the Class BV-1 Formula
Principal Distribution Amount;
(10) to the Class MV-1 Certificateholders:
(i) any Class MV-1 Liquidation Loss Interest Amount; and
(ii) any Unpaid Class MV-1 Liquidation Loss Interest Shortfall;
(11) to the Class MV-2 Certificateholders:
(i) any Class MV-2 Liquidation Loss Interest Amount; and
(ii) any Unpaid Class MV-2 Liquidation Loss Interest Shortfall;
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(12) to the Class BV-1 Certificateholders:
(i) any Class BV-1 Liquidation Loss Interest Amount; and
(ii) any Unpaid Class BV-1 Liquidation Loss Interest Shortfall;
(13) to the Class BV-2 Certificateholders:
(i) the Class BV-2 Formula Interest Distribution Amount; and
(ii) the Class BV-2 Formula Principal Distribution Amount;
(14) if Conseco Finance Corp. or a wholly owned subsidiary of Conseco
Finance Corp. is the Servicer, to the Servicer the Monthly Servicing Fee
with respect to the Adjustable Rate Loans;
(15) to the Class AV-1, Class MV-1, Class MV-2, Class BV-1 and Class
BV-2 Certificateholders, sequentially, but not more than the Class
Principal Balance of any Class, the amount, if any, by which the
Overcollateralization Amount for the Adjustable Rate Certificates is less
than $3,150,000;
(16) to the Holders of the Adjustable Rate Certificates:
(i) to the Class AV-1 Certificateholders, any Class AV-1
Available Funds Cap Carryover Amount;
(ii) to the Class MV-1 Certificateholders, any Class MV-1
Available Funds Cap Carryover Amount;
(iii) to the Class MV-2 Certificateholders, any Class MV-2
Available Funds Cap Carryover Amount;
(iv) to the Class BV-1 Certificateholders, any Class BV-1
Available Funds Cap Carryover Amount; and
(v) to the Class BV-2 Certificateholders, any Class BV-2
Available Funds Cap Carryover Amount;
(17) (i) if the Amount Available for the Class AF-1A Certificates
for such Payment Date, plus any amounts described in clauses (3), (8)
and (17) of Section 8.04(d), is not sufficient to pay the amounts
provided for in clauses (1) through (7) of Section 8.04(c), the amount
of such deficiency (or the remaining Amount Available for the
Adjustable Rate Certificates after payment of the amounts specified in
clauses (1) through (16) of this Section 8.04(b), if less) for
application in the order of priority described in Section 8.04(c)(1)
through (7); and
8-4
(ii) if the Amount Available for the Fixed Rate Group II
Certificates for such Payment Date, plus any amounts described in
clauses (3), (5) and (7)(ii) of Section 8.04(c), is not sufficient to
pay the amounts provided for in clauses (1) through (17) of Section
8.04(d), the amount of such deficiency (or the remaining Amount
Available for the Adjustable Rate Certificates after payment of the
amounts specified in clauses (1) through (17)(i) of this Section
8.04(b), if less) for application in the order of priority described
in Section 8.04(d)(1) through (17); and
(18) to the Servicer or the Trustee, as applicable, in reimbursement
for any unreimbursed Advance made with respect to an Adjustable Rate Loan
in respect of current or prior Payment Dates to the extent determined by it
to be not recoverable from payments on the related Loan;
(19) if such Payment Date is on or after the Additional Principal
Entitlement Date, then, pursuant to Section 8.06(f), to the Class AV-1
Certificateholders until the Class AV-1 Certificates are paid in full and
then pro rata to the Class MV-1, Class MV-2, Class BV-1 and Class BV-2
Certificateholders, based on the Class Principal Balance of each such
Class, until paid in full;
(20) to reimburse the Class C Certificateholder for expenses incurred
by and reimbursable to it pursuant to Section 10.06; and
(21) to the Class C Certificateholder.
(c) On each Payment Date, the Trustee shall apply the Amount Available for
the Class AF-1A Certificates for such Payment Date to make payment in the
following order of priority, subject to Section 8.04(e):
(1) if neither Conseco Finance Corp. nor a wholly owned subsidiary of
the Originator is the Servicer, to the Servicer, the Monthly Servicing Fee,
and any other compensation owed to the Servicer pursuant to Section 7.03,
with respect to the Fixed Rate Group I Loans;
(2) to the Class AF-1A Certificateholders:
(i) one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding December
15, 2000) at the Class AF-1A Pass-Through Rate on the Class AF-1A
Principal Balance; and
(ii) any Unpaid Class A Interest Shortfall for the Class AF-1A
Certificates;
(3) if the Amount Available for the Fixed Rate Group II Certificates
for such Payment Date is not sufficient to pay the amounts provided for in
clauses (1) and (2) of
8-5
Section 8.04(d), the amount of such deficiency (or the remaining Amount
Available for the Class AF-1A Certificates after payment of the amounts
specified in clauses (1) and (2) of this Section 8.04(c), if less) for
application in the order of priority described in Sections 8.04(d)(1) and
(2);
(4) to the Class AF-1A Certificateholders, the Class AF-1A Formula
Principal Distribution Amount;
(5) if the Amount Available for the Fixed Rate Group II Certificates
for such Payment Date is not sufficient to pay the amounts provided for in
clauses (4) through (15) of Section 8.04(d), the amount of such deficiency
(or the remaining Amount Available for the Class AF-1A Certificates after
payment of the amounts specified in clauses (1) through (4) of this Section
8.04(c), if less) for application in the order of priority described in
Sections 8.04(d)(4) through (15);
(6) if Conseco Finance Corp. or a wholly owned subsidiary of Conseco
Finance Corp. is the Servicer, to the Servicer the Monthly Servicing Fee
with respect to the Fixed Rate Group I Loans;
(7) (i) if the Overcollateralization Amount for the Fixed Rate
Certificates is less than $18,200,000, the amount of such deficiency
(or the remaining Amount Available for the Class AF-1A Certificates,
if less) to the Class AF-1A Certificateholders in payment of principal
(but in no event more than the Class AF-1A Principal Balance); and
(ii) if the Overcollateralization Amount, after application of
any amounts described in Sections 8.04(c)(7)(i) and 8.04(d)(17), is
less than $18,200,000, the amount of such deficiency (or the remaining
Amount Available for the Class AF1A Certificates, if less) to the
Fixed Rate Group II Certificateholders for payment of principal of the
Fixed Rate Group II Certificates, sequentially (but in no event more
than the Class Principal Balance of any Class);
(8) if the Amount Available for the Adjustable Rate Certificates for
such Payment Date is not sufficient to pay the amounts provided for in
clauses (1) through (16) of Section 8.04(b), a pro rata portion of such
deficiency (based upon the amounts available for such purpose under this
Section 8.04(c)(8) and under Section 8.04(d)(18)), for application in the
order of priority described in Sections 8.04(b)(1) through (16);
(9) to the Servicer or the Trustee, as applicable, in reimbursement
for any unreimbursed Advance made with respect to an Adjustable Rate Loan
in respect of current or prior Payment Dates to the extent determined by it
to be not recoverable from payments on the related Loan;
(10) if such Payment Date is on or after the Additional Principal
Entitlement Date, then, pursuant to Section 8.06(f),
8-6
(i) to the Class AF-1A Certificateholders until the Class AF-1A
Certificates are paid in full; and
(ii) if any Fixed Rate Group II Certificates remain unpaid after
payment of the Amount Available for the Fixed Rate Group II
Certificates in accordance with clauses (1) through (20)(i) of Section
8.04(d) and application of any amounts described in Sections
8.04(c)(3), 8.04(c)(5), 8.04(c)(7)(ii) and 8.04(b)(17)(ii), to the
Fixed Rate Group II Certificateholders, until such Certificates are
paid in full, in the order of priority described in Section
8.04(d)(20);
(11) to reimburse the Class C Certificateholder for expenses incurred
by and reimbursable to it pursuant to Section 10.06; and
(12) to the Class C Certificateholder.
(d) On each Payment Date, the Trustee shall apply the Amount Available for
the Fixed Rate Group II Certificates for such Payment Date to make payment in
the following order of priority, subject to Section 8.04(e):
(1) if neither Conseco Finance Corp. nor a wholly owned subsidiary of
the Originator is the Servicer, to the Servicer, the Monthly Servicing Fee,
and any other compensation owed to the Servicer pursuant to Section 7.03
with respect to the Fixed Rate Group II Loans;
(2) to the Class AF Group II Certificateholders:
(i) the amount in clause (a)(3) of the definition of Class A
Formula Interest Distribution Amount to the Class AF-1
Certificateholders; the amount in clause (a)(4), to the Class AF-2
Certificateholders; the amount in clause (a)(5), to the Class AF-3
Certificateholders; and the amount in clause (a)(6), to the Class AF-4
Certificateholders; or, if such remaining Amount Available is less
than the amount necessary to pay all such amounts, to each Class of
Class AF Group II Certificates pro rata in accordance with its
respective entitlement to interest; and
(ii) to each Class of Class AF Group II Certificates the amount,
if any, of the Unpaid Class A Interest Shortfall of such Class or, if
such remaining Amount Available is less than the amount necessary to
pay all Unpaid Class A Interest Shortfalls, pro rata to each Class of
Class AF Group II Certificates based on the Unpaid Class A Interest
Shortfall of each such Class;
(3) if the Amount Available for the Class AF-1A Certificates for such
Payment Date is not sufficient to pay the amounts provided for in clauses
(1) and (2) of Section 8.04(c), the amount of such deficiency (or the
remaining Amount Available for the Fixed Rate Group II Certificates after
payment of the amounts specified in clauses (1)
8-7
through (2) of this Section 8.04(d), if less) for application in the order
of priority described in Sections 8.04(c)(1) and (2);
(4) to the Class MF-1 Certificateholders the Class MF-1 Formula
Interest Distribution Amount;
(5) to the Class MF-2 Certificateholders the Class MF-2 Formula
Interest Distribution Amount;
(6) to the Class BF-1 Certificateholders the Class BF-1 Formula
Interest Distribution Amount;
(7) to the Class AF Group II Certificateholders, the Class AF Group
II Formula Principal Distribution Amount:
(i) to the Class AF-1 Certificateholders, but in no event more
than is necessary to reduce the Class AF-1 Principal Balance to zero;
(ii) to the Class AF-2 Certificateholders, but in no event more
than is necessary to reduce the Class AF-2 Principal Balance to zero;
(iii) to the Class AF-3 Certificateholders, but in no event more
than is necessary to reduce the Class AF-3 Principal Balance to zero;
and
(iv) to the Class AF-4 Certificateholders, but in no event more
than is necessary to reduce the Class AF-4 Principal Balance to zero;
(8) if the Amount Available for the Class AF-1A Certificates for such
Payment Date is not sufficient to pay the amounts provided for in Section
8.04(c)(4), the amount of such deficiency (or the remaining Amount
Available for the Fixed Rate Group II Certificates after payment of the
amounts specified in clauses (1) through (7) of this Section 8.04(d), if
less) for application to the Class AF-1A Formula Principal Distribution
Amount;
(9) to the Class MF-1 Certificateholders, the Class MF-1 Formula
Principal Distribution Amount;
(10) to the Class MF-2 Certificateholders, the Class MF-2 Formula
Principal Distribution Amount;
(11) to the Class BF-1 Certificateholders, the Class BF-1 Formula
Principal Distribution Amount;
(12) to the Class MF-1 Certificateholders:
(i) any Class MF-1 Liquidation Loss Interest Amount; and
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(ii) any Unpaid Class MF-1 Liquidation Loss Interest Shortfall;
(13) to the Class MF-2 Certificateholders:
(i) any Class MF-2 Liquidation Loss Interest Amount; and
(ii) any Unpaid Class MF-2 Liquidation Loss Interest Shortfall;
(14) to the Class BF-1 Certificateholders:
(i) any Class BF-1 Liquidation Loss Interest Amount; and
(ii) any Unpaid Class BF-1 Liquidation Loss Interest Shortfall;
(15) to the Class BF-2 Certificateholders,
(i) the Class BF-2 Formula Interest Distribution Amount; and
(ii) the Class BF-2 Formula Principal Distribution Amount;
(16) if Conseco Finance Corp. or a wholly owned subsidiary of Conseco
Finance Corp. is the Servicer, to the Servicer the Monthly Servicing Fee
with respect to the Fixed Rate Group II Loans;
(17) If the Overcollateralization Amount, after application of any
amount described in Section 8.04(c)(7)(i) is less than $18,200,000, the
amount of such deficiency (or the remaining Amount Available for the Fixed
Rate Group II Certificates, if less) first to the Fixed Rate Group II
Certificateholders, in payment of principal of the Fixed Rate Group II
Certificates, sequentially, and then to the Class AF-1A Certificateholders
in payment of principal (but in no event more than the Class Principal
Balance of any Class).
(18) if the Amount Available for the Adjustable Rate Certificates for
such Payment Date is not sufficient to pay the amounts provided for in
clauses (1) through (16) of Section 8.04(b), a pro rata portion (based upon
the amounts available for such purpose under this Section 8.04(d)(18) and
under Section 8.04(c)(8)) of such deficiency for application in the order
of priority described in Sections 8.04(b)(1) through (16);
(19) to the Servicer or the Trustee, as applicable, in reimbursement
for any unreimbursed Advance made with respect to an Adjustable Rate Loan
in respect of current or prior Payment Dates to the extent determined by it
to be not recoverable from payments on the related Loan;
(20) if such Payment Date is on or after the Additional Principal
Entitlement Date, then, pursuant to Section 8.06(f),
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(i) (i) to the Class AF Group II Certificateholders pro rata
until the Class AF Group II Certificates are paid in full;
(ii) if the Class AF-1A Certificates remain unpaid after payment
of the Amount Available for the Class AF-1A Certificates in accordance
with clauses (1) through 10(i) of Section 8.04(c) and application of
any amounts described in Sections 8.04(b)(17)(i), 8.04(d)(3),
8.04(d)(8) and 8.04(d)(17), to the Class AF-1A Certificateholders
until such Certificates are paid in full;
(iii) pro rata to the Class MF-1, Class MF-2, Class BF-1 and
Class BF-2 Certificateholders, based on the Class Principal Balance of
each such Class, until paid in full;
(21) to reimburse the Class C Certificateholder for expenses incurred
by and reimbursable to it pursuant to Section 10.06; and
(22) to the Class C Certificateholder.
(e) Notwithstanding the priorities set forth above, any Pre-Funded Fixed
Rate Group I Amount, Pre-Funded Fixed Rate Group II Amount or Pre-Funded ARM
Amount deposited in the Certificate Account shall be applied solely to pay
principal of the Class AF-1A Certificates, Class AF-1 Certificates or Class AV-1
Certificates, respectively, and any amount withdrawn from the Capitalized
Interest Account and deposited in the Certificate Account shall be applied
solely as described in Section 8.07.
SECTION 8.05. Reassignment of Repurchased and Replaced Loans. Upon receipt
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by the Trust, by deposit in the Certificate Account, of the Repurchase Price
under Section 3.06(a), or upon receipt by the Trust of an Eligible Substitute
Loan under Section 2.06 or Section 3.06(b) and receipt by the Trust, by deposit
in the Certificate Account, of any additional amount under Section 3.06(b)(v),
and upon receipt of a certificate of a Servicing Officer in the form attached
hereto as Exhibit J-1 or J-2, as applicable, the Trustee shall convey and assign
to the Originator all of the Certificateholders' right, title and interest in
the repurchased Loan or Replaced Loan 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 the Trustee. Upon such deposit of the
Repurchase Price or receipt of such Eligible Substitute Loan and related deposit
of any additional amount under Section 3.06(b)(v), the Servicer shall be deemed
to have released any claims to such Loan as a result of Advances with respect to
such Loan.
SECTION 8.06. Class C Certificateholder's Purchase Option; Auction Sale;
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Additional Principal Distribution Amount.
----------------------------------------
a. The Class C Certificateholder shall, subject to subsection (b) hereof,
have the option to purchase all of the Loans and all property acquired in
respect of any Loan remaining in the Trust at a price (such price being referred
to as the "Minimum Purchase Price") equal to the greater of:
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(i) the sum of (x) 100% of the principal balance of each Loan (other
than any Loan as to which title to the underlying property has been
acquired and whose fair market value is included pursuant to clause (y)
below), together with accrued and unpaid interest on each such Loan at a
rate per annum equal to the Weighted Average Pass-Through Rate, plus (y)
the fair market value of such acquired property (as reasonably determined
by the Servicer as of the close of business on the third Business Day
preceding the date of such purchase), and
(ii) the Aggregate Certificate Principal Balance as of the date of
such purchase (less any amounts on deposit in the Certificate Account on
such purchase date and representing payments of principal in respect of the
Loans) plus an amount necessary to pay the Class A Formula Interest
Distribution Amount, the Class AV-1 Available Funds Cap Carryover Amount,
the Class MF-1 Formula Interest Distribution Amount, the Class MF-1 Formula
Liquidation Loss Interest Distribution Amount, the Class MV-1 Formula
Interest Distribution Amount, the Class MV-1 Formula Liquidation Loss
Interest Distribution Amount, the Class MV-1 Available Funds Cap Carryover
Amount, the Class MF-2 Formula Interest Distribution Amount, the Class MF-2
Formula Liquidation Loss Interest Distribution Amount, the Class MV-2
Formula Interest Distribution Amount, the Class MV-2 Formula Liquidation
Loss Interest Amount, the Class MV-2 Available Funds Cap Carryover Amount,
the Class BF-1 Formula Interest Distribution Amount, the Class BF-1 Formula
Liquidation Loss Interest Distribution Amount, the Class BV-1 Formula
Interest Distribution Amount, the Class BV-1 Formula Liquidation Loss
Interest Distribution Amount, the Class BV-1 Available Funds Cap Carryover
Amount, the Class BF-2 Formula Interest Distribution Amount, the Class BV-2
Formula Interest Distribution Amount and the Class BV-2 Available Funds Cap
Carryover Amount due on the Payment Date occurring in the calendar month
following such purchase date (less any amounts on deposit in the
Certificate Account on such purchase date and representing payments of
interest in respect of the Loans at a rate per annum equal to the Weighted
Average Pass-Through Rate).
b. The purchase by the Class C Certificateholder of all of the Loans
pursuant to this Section 8.06 shall be conditioned upon:
(i) the Pool Scheduled Principal Balance, at the time of any such
purchase, aggregating not more than 20% of the Cut-off Date Pool Principal
Balance,
(ii) such purchase being made pursuant to a plan of complete
liquidation in accordance with Section 860F of the Code, as provided in
Section 12.04,
(iii) the Class C Certificateholder having provided the Trustee and
the Depository (if any) with at least 30 days' written notice, and
(iv) the Trustee not having accepted a qualifying bid for the Loans
pursuant to subsection (e) below.
If such option is exercised, the Class C Certificateholder shall provide to the
Trustee (at the Class C Certificateholder's expense) the certification required
by Section 12.04, which certificate
8-11
shall constitute a plan of complete liquidation within the meaning of Section
860F of the Code, and the Trustee shall promptly sign such certification and
release to the Class C Certificateholder the Loan Files pertaining to the Loans
being purchased.
c. The Class C Certificateholder may assign its rights under this Section
8.06, separately from its other rights as Holder of the Class C Certificate, by
giving written notice of such assignment to the Trustee. Following the Trustee's
receipt of such notice of assignment, the Trustee shall recognize only such
assignee (or its assignee in turn) as the Person entitled to exercise the
purchase option set forth in Section 8.06(a).
d. The Servicer shall notify the Trustee and the Class C
Certificateholder (whether or not the Class C Certificateholder has then
assigned its rights under this Section 8.06 pursuant to subsection (c)) no later
than two Business Days after the Determination Date relating to the first Due
Period which includes the date on which the Pool Scheduled Principal Balance
first becomes less than 20% of the Cut-off Date Pool Principal Balance, to the
effect that the Pool Scheduled Principal Balance is then less than 20% of the
Cut-off Date Pool Principal Balance.
e. If the Class C Certificateholder (or its assignee) has not delivered
to the Trustee the notice of exercise of its purchase option required by
subsection (b) by the Payment Date occurring in the month following the
Determination Date specified in subsection (d), then promptly after the
following Payment Date the Trustee shall begin a process for soliciting bids in
connection with an auction for the Loans. The Trustee shall provide the Class C
Certificateholder (or its assignee) written notice of such auction at least 10
Business Days prior to the date bids must be received in such auction (the
"Auction Date").
If at least two bids are received, the Trustee shall solicit and resolicit
new bids from all participating bidders until only one bid remains or the
remaining bidders decline to resubmit bids. The Trustee shall accept the highest
of such remaining bids if it is equal to or in excess of the greater of (i) the
Minimum Purchase Price (as defined in Section 8/06(a)) and (ii) the fair market
value of the Loans and related property (such amount being referred to as the
"Minimum Auction Price"). If less than two bids are received or the highest bid
after the resolicitation process is completed is not equal to or in excess of
the Minimum Auction Price, the Trustee shall not consummate such sale. If a bid
meeting the Minimum Purchase Price is received, then the Trustee may, and if so
requested by the Class C Certificateholder shall, consult with a financial
advisor, which may be an underwriter of the Certificates, to determine if the
fair market value of the Loans and related property has been offered.
If the first auction conducted by the Trustee does not produce any bid at
least equal to the Minimum Auction Price, then the Trustee shall, beginning on
the Payment Date occurring approximately three months after the Auction Date for
the failed first auction, commence another auction in accordance with the
requirements of this subsection (e). If such second auction does not produce any
bid at least equal to the Minimum Auction Price, then the Trustee shall,
beginning on the Payment Date occurring approximately three months after the
Auction Date for the failed second auction, commence another auction in
accordance with the requirements of this subsection (e), and shall continue to
conduct similar auctions approximately every three months thereafter until the
earliest of (i) delivery by the Class C Certificateholder or its assignee of
notice of exercise of its purchase option under subsection (a), (ii) receipt by
the Trustee of a bid
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meeting the conditions specified in the preceding paragraph, or (iii) the
Payment Date on which the principal balance of all the Loans is reduced to zero.
If the Trustee receives a bid meeting the conditions specified in this
subsection (e), then the Trustee's written acceptance of such bid shall
constitute a plan of complete liquidation within the meaning of Section 860F of
the Code, and the Trustee shall release to the winning bidder, upon payment of
the bid purchase price, the Loan Files pertaining to the Loans being purchased.
f. If the Class C Certificateholder (or its assignee) has not delivered
to the Trustee the notice of exercise of its purchase option required by
subsection (b) by the Payment Date occurring in the month following the
Determination Date specified in subsection (d), then on the following Payment
Date and each Payment Date thereafter the Certificateholders shall be entitled
to receive additional principal distributions in the order of priority described
in Sections 8.04(b)(19), 8.04(c)(10) and 8.04(d)(20).
SECTION 8.07. Capitalized Interest Account.
----------------------------
a. On or before the Closing Date, the Trustee shall establish the
Capitalized Interest Account on behalf of the Trust, which must be an Eligible
Account, and shall deposit therein $0.00 received from the Seller pursuant to
Section 2.02(m). The Capitalized Interest Account shall be entitled "Capitalized
Interest Account, U.S. Bank Trust National Association as Trustee for the
benefit of holders of Certificates for Home Equity Loans, Series 2000-F." On the
Payment Date occurring in each of December 2000 and January 2001, if the Monthly
Report for such Payment Date indicates that the Amount Available (after payment
of the amounts specified in clause (1) of Sections 8.04(b), (c) and (d), and
including in the Amount Available only payments in respect of interest on the
Loans) is not sufficient to pay the Class A, Class MF-1, Class MF-2, Class MV-1,
Class MV-2, Class BF-1 and Class BV-1 Formula Interest Distribution Amounts, the
Trustee shall withdraw the amount of such deficiency, or the amount of funds in
the Capitalized Interest Account (net of any investment earnings thereon), if
less, and shall deposit such funds in the Certificate Account for distribution
on such Payment Date in order to pay the Class A, Class MF-1, Class MV-1, Class
MF-2, Class MV-2, Class BF-1 and Class BV-1 Formula Interest Distribution
Amounts.
b. The Capitalized Interest Account shall be part of the Trust but not
part of the assets of the Trust comprising a REMIC. The Trustee on behalf of the
Trust shall be the legal owner of the Capitalized Interest Account. The Seller
shall be the beneficial owner of the Capitalized Interest Account, subject to
the foregoing power of the Trustee to transfer amounts in the Capitalized
Interest Account to the Certificate Account. Funds in the Capitalized Interest
Account shall, at the direction of the Seller, be invested in Eligible
Investments that mature no later than the Business Day prior to the next
succeeding Payment Date. All net income and gain from such investments shall be
distributed to the Seller on such Payment Date. All amounts earned on amounts on
deposit in the Capitalized Interest Account shall be taxable to the Seller.
c. Any funds remaining in the Capitalized Interest Account after the
Payment Date in January 2001 shall be distributed to the Seller. After such date
no further amounts shall be deposited in or withdrawn from the Capitalized
Interest Account. Any losses on such
8-13
investments shall be deposited in the Capitalized Interest Account by the Seller
out of its own funds immediately as realized.
SECTION 8.08. Pre-Funding Account.
-------------------
a. On or before the Closing Date, the Trustee shall establish the Pre-
Funding Account on behalf of the Trust, which must be an Eligible Account, and
shall deposit therein the amounts received from the Seller pursuant to Section
2.02(l). The Pre-Funding Account shall be entitled "Pre-Funding Account, U.S.
Bank Trust National Association as Trustee for the benefit of holders of
Certificates for Home Equity Loans, Series 2000-F." The Trustee shall maintain
within the Pre-Funding Account three subaccounts as follows: the "Pre-Funding
Fixed Rate Group I Subaccount," the "Pre-Funding Fixed Rate Group II
Subaccount," and the "Pre-Funding ARM Subaccount". Funds deposited in the Pre-
Funding Account shall be held in trust by the Trustee for the Holders of the
Certificates and the Class C Certificate for the uses and purposes set forth
herein.
b. On or before the Closing Date the Originator shall deposit in the Pre-
Funding Fixed Rate Group I Subaccount, the Pre-Funding Fixed Rate Group II
Subaccount and the Pre-Funding ARM Subaccount, the respective amounts specified
in Section 2.02(l). Amounts on deposit in such subaccounts shall be withdrawn by
the Trustee as follows:
(i) On any Subsequent Transfer Date, the Trustee shall withdraw from
the Pre-Funding Fixed Rate Group I Subaccount an amount equal to 100% of
the Cut-off Date Principal Balance of each Subsequent Fixed Rate Group I
Loan transferred and assigned to the Trustee on such Subsequent Transfer
Date and pay such amount to or upon the order of the Originator upon
satisfaction of the conditions set forth in Section 2.03(b) with respect to
such transfer and assignment.
(ii) On any Subsequent Transfer Date, the Trustee shall withdraw from
the Pre-Funding Fixed Rate Group II Subaccount an amount equal to 100% of
the Cut-off Date Principal Balance of each Subsequent Fixed Rate Group II
Loan transferred and assigned to the Trustee on such Subsequent Transfer
Date and pay such amount to or upon the order of the Originator upon
satisfaction of the conditions set forth in Section 2.03(b) with respect to
such transfer and assignment.
(iii) On any Subsequent Transfer Date, the Trustee shall withdraw from
the Pre-Funding ARM Subaccount an amount equal to 100% of the Cut-off Date
Principal Balance of each Subsequent Adjustable Rate Loan transferred and
assigned to the Trustee on such Subsequent Transfer Date and pay such
amount to or upon the order of the Originator upon satisfaction of the
conditions set forth in Section 2.03(b) with respect to such transfer and
assignment.
(iv) On the Business Day immediately preceding the Post-Funding
Payment Date, the Trustee shall deposit into the Certificate Account any
amounts remaining in the Pre-Funding Fixed Rate Group I Subaccount, the
Pre-Funding Fixed Rate Group II Subaccount and the Pre-Funding ARM
Subaccount, net of investment earnings.
8-14
c. The Pre-Funding Account shall be part of the Trust but not part of the
assets of the Trust comprising the REMIC. The Trustee on behalf of the Trust
shall be the legal owner of the Pre-Funding Account. The Seller shall be the
beneficial owner of the Pre-Funding Account, subject to the foregoing power of
the Trustee to transfer amounts in the Pre-Funding Account to the Certificate
Account. Funds in the Pre-Funding Account shall, at the direction of the
Servicer, be invested in Eligible Investments of the kind described in clauses
(i) and (ii)(A) of the definition of "Eligible Investments" and that mature no
later than the Business Day prior to the next succeeding Payment Date. All
amounts earned on deposits in the Pre-Funding Account shall be taxable to the
Seller. The Trustee shall release to the Seller all investment earnings in the
Pre-Funding Account on the first Payment Date after the end of the Pre-Funding
Period.
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ARTICLE IX.
THE CERTIFICATES AND THE CLASS C CERTIFICATE
--------------------------------------------
SECTION 9.01. The Certificates and the Class C Certificate. The Class A,
--------------------------------------------
the Class M, the Class B, and the Class C Certificates shall be substantially in
the forms set forth in Exhibits A-1, A-2, B-1, B-2, C-1, C-2, and I, as
applicable, and shall, on original issue, be executed by the Trustee on behalf
of the Trust to or upon the order of the Originator. The Class A, the Class M
and the Class B Certificates shall be evidenced by (i) one or more Class AV-1
Certificates evidencing $168,000,000 in Original Class AV-1 Principal Balance,
(ii) one or more Class MV-1 Certificates evidencing $15,750,000 in Original
Class MV-1 Principal Balance, (iii) one or more Class MV-2 Certificates
evidencing $10,500,000 in Original Class MV-2 Principal Balance, (iv) one or
more Class BV-1 Certificates evidencing $9,450,000 in Original Class BV-1
Principal Balance, (v) one or more Class BV-2 Certificates evidencing $6,300,000
in original Class BV-2 Principal Balance, (vi) one or more Class AF-1A
Certificates evidencing $200,000,000 in Original Class AF-1A Principal Balance,
(vii) one or more Class AF-1 Certificates evidencing $200,000,000 in Original
Class AF-1 Principal Balance, (viii) one or more Class AF-2 Certificates
evidencing $25,000,000 in Original Class AF-2 Principal Balance, (ix) one or
more Class AF-3 Certificates evidencing $90,000,000 in Original Class AF-3
Principal Balance, (x) one or more Class AF-4 Certificates evidencing
$52,000,000 in Original Class AF-4 Principal Balance, (xi) one or more Class MF-
1 Certificates evidencing $49,000,000 in Original Class MF-1 Principal Balance,
(xii) one or more Class MF-2 Certificates evidencing $35,000,000 in Original
Class MF-2 Principal Balance, (xiii) one or more Class BF-1 Certificates
evidencing $28,000,000 in Original Class BF-1 Principal Balance, (xiv) one or
more Class BF-2 Certificates representing $21,000,000 in Original Class BF-2
Principal Balance, beneficial ownership of such Classes of Certificates to be
held through Book-Entry Certificates in minimum dollar denominations of $1,000
and integral multiples of $1.00 in excess thereof. The Class C Certificate shall
be evidenced by a single Class C Certificate issued on the Closing Date to the
Originator and shall represent 100% of the Percentage Interest of the Class C
Certificate.
The Certificates and the Class C Certificate shall be executed by manual
signature on behalf of the Trustee by a duly authorized Responsible Officer or
authorized signatory. Certificates or the Class C Certificate bearing the
signatures of individuals who were at any time the proper officers of the
Trustee shall bind the Trustee, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the execution and delivery of
such Certificate or Class C Certificate, or did not hold such offices at the
date of such Certificates or Class C Certificate. No Certificate or Class C
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless such Certificate or Class C Certificate has been
executed by manual signature in accordance with this Section, and such signature
upon any Certificate or Class C Certificate shall be conclusive evidence, and
the only evidence, that such Certificates or Class C Certificate has been duly
executed and delivered hereunder. All Certificates and the Class C Certificate
shall be dated the date of their execution, except for those Certificates and
the Class C Certificate executed on the Closing Date, which shall be dated the
Closing Date.
9-1
SECTION 9.02. Registration of Transfer and Exchange of Certificates and
the Class C Certificate.
a. The Trustee shall keep at the office or agency to be maintained in
accordance with Section 12.03 a "Certificate Register" in which the Trustee
shall provide for the registration of Certificates and the Class C Certificate
and of transfers and exchanges of Certificates and the Class C Certificate as
herein provided. The Trustee initially appoints itself to be the "Certificate
Registrar" and transfer agent for the purpose of registering Certificates and
the Class C Certificate and transfers and exchanges of Certificates and the
Class C Certificate as provided herein. The Trustee will give prompt written
notice to Certificateholders, the Class C Certificateholder and the Servicer of
any change in the Certificate Registrar.
b. (1) Subject to clauses (2) and (3) below, no transfer of a Class C
Certificate shall be made by the Seller or any other Person unless such transfer
is exempt from the registration requirements of the Securities Act of 1933 (the
"Act"), as amended, and any applicable state securities laws or is made in
---
accordance with the Act and laws. In the event that any such transfer is to be
made, (A) the Originator may require a written Opinion of Counsel acceptable to
and in form and substance satisfactory to the Originator that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the Act and laws or is being made pursuant to the Act and
laws, which Opinion of Counsel shall not be an expense of the Trustee or the
Originator, and (B) the Trustee shall require the transferee to execute an
investment letter substantially in the form of Exhibit K attached hereto, which
investment letter shall not be an expense of the Trustee or the Originator. The
Class C Certificateholder desiring to effect such transfer shall, and does
hereby agree to, indemnify the Trustee, the Originator and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
(2) No transfer of a Class M, Class B, or Class C Certificate or any
interest therein shall be made to any employee benefit plan that is subject to
ERISA, or that is described in Section 4975(e)(1) of the Code or to any person
or entity purchasing on behalf of, or with assets of, such an employee benefit
plan (each, a "Plan"), unless the Plan, at its expense, delivers to the
Originator and the Trustee, an Opinion of Counsel in form satisfactory to the
Originator and the Trustee that the purchase and holding of such Certificate or
Class C Certificate by such Plan will not result in the assets of the Trust
being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee, the
Originator, the Seller or the Servicer to any obligation or liability in
addition to those undertaken in this Agreement. Unless such opinion is
delivered and in the case of Definitive Certificates, each person acquiring such
a Certificate or Class C Certificate will be deemed to represent to the Trustee,
the Originator, the Seller and the Servicer either (i) that such person is
neither a Plan, nor acting on behalf of a Plan, subject to ERISA or to Section
4975 of the Code, or (ii) that the purchase and holding of the Certificate or
Class C Certificate by such Plan will not result in the assets of the Trust
being deemed to be Plan assets and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee, the
Originator or the Servicer to any obligation or liability in addition to those
undertaken in this Agreement. The provisions contained in this Section
9.02(b)(2) shall no longer apply to the Class M Certificates if the Seller or
the Servicer delivers to the Trustee an Officer's Certificate stating that
amendments proposed by the United States Department of Labor (the "DOL") to be
made to
9-2
Prohibited Transaction Exemption 90-29, 55 Fed. Reg. 21459 (1990), as amended by
PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997) and similar exemptions have been
published in final form substantially as proposed in the DOL Exemption
Application No. D-10809, 65 Fed. Reg. 51454 (August 23, 2000).
(3) Notwithstanding anything to the contrary contained herein, (A) no
Class C Certificate, nor any interest therein, shall be transferred, sold or
otherwise disposed of to a "disqualified organization," within the meaning of
Section 860E(e)(5) of the Code (a "Disqualified Organization"), including, but
not limited to, (i) the United States, a state or political subdivision thereof,
a foreign government, an international organization or an agency or
instrumentality of any of the foregoing, (ii) an organization (other than a
cooperative described in Section 521 of the Code) which is exempt from the taxes
imposed by Chapter 1 of the Code and not subject to the tax imposed on unrelated
business income by Section 511 of the Code, or (iii) a cooperative described in
Section 1381(a)(2)(C) of the Code, and (B) prior to any registration of any
transfer, sale or other disposition of a Class C Certificate, the proposed
transferee shall deliver to the Trustee, under penalties of perjury, an
affidavit that such transferee is not a Disqualified Organization, with respect
to which the Trustee shall have no actual knowledge that such affidavit is
false, and the transferor and the proposed transferee shall each deliver to the
Trustee an affidavit with respect to any other information reasonably required
by the Trustee pursuant to the REMIC Provisions, including, without limitation,
information regarding the transfer of noneconomic residual interests and
transfers of any residual interest to or by a foreign person; provided, however,
-------- -------
that, upon the delivery to the Trustee of an Opinion of Counsel, in form and
substance satisfactory to the Trustee and rendered by Independent counsel, to
the effect that the beneficial ownership of a Class C Certificate by any
Disqualified Organization will not result in the imposition of federal income
tax upon the Trust or any Certificateholder or Class C Certificateholder or any
other person or otherwise adversely affect the status of the Trust as a REMIC,
the foregoing prohibition on transfers, sales and other dispositions, as well as
the foregoing requirement to deliver a certificate prior to any registration
thereof, shall, with respect to such Disqualified Organization, terminate.
Notwithstanding any transfer, sale or other disposition of a Class C
Certificate, or any interest therein, to a Disqualified Organization or the
registration thereof in the Certificate Register, such transfer, sale or other
disposition and any registration thereof, unless accompanied by the Opinion of
Counsel described in the preceding sentence, shall be deemed to be void and of
no legal force or effect whatsoever and such Disqualified Organization shall be
deemed not to be a Class C Certificateholder for any purpose hereunder,
including, but not limited to, the receipt of distributions on a Class C
Certificate, and shall be deemed to have no interest whatsoever in a Class C
Certificate. Each Class C Certificateholder, by his acceptance thereof, shall
be deemed for all purposes to have consented to the provisions of this Section
9.02(b)(3).
(4) Any transfer, sale or other disposition not in compliance with
the provisions of this Section 9.02(b) shall be deemed to be void and of no
legal force or effect whatsoever and such transferee shall be deemed not to be
the Certificateholder or Class C Certificateholder, as applicable, for any
purpose hereunder, including, but not limited to, the receipt of distributions
on the Certificate or Class C Certificate, and shall be deemed to have no
interest whatsoever in the Certificate or Class C Certificate.
9-3
(5) The Trustee shall give notice to the Rating Agencies promptly
following any transfer, sale or other disposition of a Class C Certificate.
c. At the option of a Certificateholder or a Class C Certificateholder,
Certificates and the Class C Certificate may be exchanged for other Certificates
or Class C Certificate of authorized denominations of a like aggregate original
denomination, upon surrender of such Certificates or the Class C Certificate to
be exchanged at the Corporate Trust Office. Whenever any Certificates or the
Class C Certificate are so surrendered for exchange, the Trustee shall execute
and deliver the Certificates or Class C Certificate which the Certificateholder
or Class C Certificateholder making the exchange is entitled to receive. Every
Certificate or Class C Certificate presented or surrendered for transfer or
exchange shall be duly endorsed by, or shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by, the holder thereof or his or her attorney duly
authorized in writing.
d. Except as provided in paragraph (e) below, the Book-Entry Certificates
shall at all times remain registered in the name of the Depository or its
nominee and at all times: (i) registration of such Certificates may not be
transferred by the Trustee except to another Depository; (ii) the Depository
shall maintain book-entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Certificates; (iii) ownership
and transfers of registration of such Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of such Certificates for purposes of
exercising the rights of Holders under this Agreement, and requests and
directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
e. If (x)(i) the Seller or the Depository advises the Trustee in writing
that the Depository is no longer willing or able properly to discharge its
responsibilities as Depository and (ii) the Trustee or the Originator is unable
to locate a qualified successor or (y) the Originator at its sole option advises
the Trustee in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
definitive, fully registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration, the Trustee shall issue the Definitive
9-4
Certificates. Neither the Originator nor the Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Trustee, to the extent applicable with respect to such Definitive
Certificates and the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
f. On or prior to the Closing Date, there shall be delivered to the
Depository one Class AV-1 Certificate, one Class MV-1 Certificate, one Class MV-
2 Certificate, one Class BV-1 Certificate, one Class BV-2 Certificate, one Class
AF-1A Certificate, one Class AF-1 Certificate, one Class AF-2 Certificate, one
Class AF-3 Certificate, one Class AF-4 Certificate, one Class MF-1 Certificate,
one Class MF-2 Certificate, one Class BF-1 Certificate, and one Class BF-2
Certificate, each in registered form registered in the name of the Depository's
nominee, Cede & Co., the total face amount of which represents 100% of the
Original Class Principal Balance of each Class, respectively. Each such
Certificate registered in the name of the Depository's nominee shall bear the
following legend:
"Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Trustee or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein."
g. Each of the Certificates and the Class C Certificate shall be a
"security" for purposes of Section 8-102(a)(15) of the Uniform Commercial Code
and shall be governed by such Article 8 as in effect in the State of Minnesota
from time to time.
SECTION 9.03. No Charge; Disposition of Void Certificates or Class C
------------------------------------------------------
Certificate. No service charge shall be made to a Certificateholder or Class C
-----------
Certificateholder for any transfer or exchange of a Certificate or a Class C
Certificate, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of a Certificate or a Class C
Certificate. All Certificates and Class C Certificate surrendered for transfer
and exchange shall be disposed of in a manner approved by the Trustee.
SECTION 9.04. Mutilated, Destroyed, Lost or Stolen Certificates or Class C
------------------------------------------------------------
Certificate. If (a) any mutilated Certificate or Class C Certificate is
-----------
surrendered to the Certificate Registrar, or the Certificate Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate or Class C Certificate, and (b) there is delivered to the
Certificate Registrar and the Trustee such security or indemnity as may be
required by each to save it harmless, then in the absence of notice to the
Certificate Registrar or the Trustee that such Certificate or Class C
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen
9-5
Certificate or Class C Certificate, a new Certificate or Class C Certificate of
like tenor and original denomination. Upon the issuance of any new Certificate
or Class C Certificate under this Section 9.04, the Trustee may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.
Any duplicate Certificate or Class C Certificate issued pursuant to this Section
9.04 shall constitute complete and indefeasible evidence of ownership of the
Percentage Interest, as if originally issued, whether or not the mutilated,
destroyed, lost or stolen Certificate or Class C Certificate shall be found at
any time.
SECTION 9.05. Persons Deemed Owners. Prior to due presentation of a
---------------------
Certificate or Class C Certificate for registration of transfer, the Servicer,
the Seller, the Trustee, the Paying Agent and the Certificate Registrar may
treat the person in whose name any Certificate or Class C Certificate is
registered as the owner of such Certificate or Class C Certificate for the
purpose of receiving remittances pursuant to Section 8.01 and for all other
purposes whatsoever, and none of the Servicer, the Seller, the Trustee, the
Certificate Registrar, the Paying Agent or any agent of the Servicer, the
Seller, the Trustee, the Paying Agent or the Certificate Registrar shall be
affected by notice to the contrary.
SECTION 9.06. Access to List of Certificateholders' and Class C
-------------------------------------------------
Certificateholder's Names and Addresses. The Certificate Registrar will furnish
---------------------------------------
to the Trustee and the Servicer, within five days after receipt by the
Certificate Registrar of a request therefor from the Trustee in writing, a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the Certificateholders and the Class C Certificateholder as of the most
recent Record Date. If Holders of Certificates representing, in the aggregate,
25% or more of the Aggregate Certificate Principal Balance apply in writing to
the Trustee (hereinafter referred to as "Applicants"), and such application
states that the Applicants desire to communicate with other Certificateholders
or the Class C Certificateholder with respect to their rights under this
Agreement or under the Certificates or the Class C Certificate and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, afford such Applicants access during normal business hours to
the most recent list of Certificateholders and the Class C Certificateholder
held by the Trustee. If such list is as of a date more than 90 days prior to the
date of receipt of such Applicants' request, the Trustee shall promptly request
from the Certificate Registrar a current list as provided above, and shall
afford such Applicants access to such list promptly upon receipt. Every
Certificateholder and the Class C Certificateholder, by receiving and holding a
Certificate or a Class C Certificate, agrees with the Certificate Registrar and
the Trustee that none of the Originator, the Certificate Registrar or the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Certificateholders or the Class
C Certificateholder hereunder, regardless of the source from which such
information was derived.
SECTION 9.07. Authenticating Agents. The Trustee may appoint one or more
---------------------
Authenticating Agents with power to act on its behalf and subject to its
direction in the execution and delivery of the Certificates or the Class C
Certificate. For all purposes of this Agreement, the execution and delivery of
Certificates or the Class C Certificate by the Authenticating Agent pursuant to
this Section shall be deemed to be the execution and delivery of Certificates or
the Class C Certificate "by the Trustee."
9-6
ARTICLE X.
INDEMNITIES
-----------
SECTION 10.01. Real Estate. The Seller and Originator will jointly and
-----------
severally defend and indemnify the Trust, the Trustee (including the Custodian
and any other agents of the Trustee) and the Certificateholders and the Class C
Certificateholder 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 the Originator or the Servicer or any Affiliate of
either. Notwithstanding any other provision of this Agreement, the obligation of
the Originator under this Section shall not terminate upon a Service Transfer
pursuant to Article VII, except that the obligation of the Originator under this
Section shall not relate to the actions of any subsequent Servicer after a
Service Transfer.
SECTION 10.02. Liabilities to Obligors. No obligation or liability to any
-----------------------
Obligor under any of the Loans is intended to be assumed by the Trust, the
Certificateholders or the Class C Certificateholder 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, the Trust, the
Certificateholders and the Class C Certificateholder expressly disclaim such
assumption.
SECTION 10.03. Tax Indemnification. The Originator agrees to pay, and to
-------------------
indemnify, defend and hold harmless the Trust, the Trustee (including the
Custodian and any other agents of the Trustee), the Certificateholders and the
Class C Certificateholder 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 the Trust,
including, without limitation, any sales, gross receipts, general corporation,
personal property, privilege or license taxes (but not including any federal,
state or other taxes arising out of the creation of the Trust and the issuance
of the Certificates and the Class C Certificate) and costs, expenses and
reasonable counsel fees in defending against the same, whether arising by reason
of the acts to be performed by the Originator, the Seller, the Servicer or the
Trustee under this Agreement or imposed against the Trust, a Certificateholder,
the Class C Certificateholder or otherwise.
SECTION 10.04. Servicer's Indemnities. The Servicer shall defend and
----------------------
indemnify the Trust, the Trustee (including the Custodian and any other agents
of the Trustee), the Certificateholders and the Class C Certificateholder
against any and all costs, expenses, losses, damages, claims and liabilities,
including reasonable fees and expenses of counsel and expenses of litigation, in
respect of any action taken or omitted to be taken by the Servicer with respect
to any Loan. This indemnity shall survive any Service Transfer (but the original
Servicer's obligations under this Section 10.04 shall not relate to any actions
of any subsequent Servicer after a Service Transfer) and any payment of the
amount owing under, or any repurchase by the Originator of, any such Loan.
SECTION 10.05. Operation of Indemnities. Indemnification under this
------------------------
Article shall include, without limitation, reasonable fees and expenses of
counsel and expenses of litigation. If the Originator or the Servicer has made
any indemnity payments to the Trustee pursuant to this
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Article and the Trustee thereafter collects any of such amounts from others, the
Trust will repay such amounts collected to the Originator or the Servicer, as
the case may be, without interest.
SECTION 10.06. REMIC Tax Matters. If a Class C Certificateholder,
-----------------
pursuant to Section 6.06, pays any taxes or charges imposed upon the Trust, as a
REMIC or otherwise, such taxes or charges, except to the extent set forth in the
following proviso, shall be expenses and costs of the Trust and the Class C
Certificateholder shall be entitled to be reimbursed therefor out of the
Certificate Account as provided in Section 8.04; provided, however, that any
-------- -------
such taxes or charges shall not be expenses or costs of the Trust, nor will the
Class C Certificateholder be entitled to reimbursement therefor out of the
Certificate Account, if and to the extent that such taxes or charges resulted
from a failure (i) by the Originator, the Trustee or any Servicer to comply with
the provisions of Section 2.05, (ii) by any Servicer to comply with the
provisions of Section 6.06, or (iii) by the Trustee to execute any tax returns
pursuant to Section 11.11.
10-2
ARTICLE XI.
THE TRUSTEE
-----------
SECTION 11.01. Duties of Trustee. The Trustee, prior to the occurrence of
-----------------
an Event of Termination and after the curing of all Events of Termination which
may have occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If an Event of Termination has
occurred (which has not been cured), the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
Subject to Section 11.03, no provision of this Agreement shall be construed
to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however, that:
-------- -------
a. Prior to the occurrence of an Event of Termination, and after the
curing of all such Events of Termination which may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Agreement, the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement against the
Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this Agreement;
b. The Trustee shall not be liable for an error of judgment made in good
faith by a Responsible Officer of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
c. The Trustee shall not be personally liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance with
the direction of the Certificateholders representing, in the aggregate, 25% or
more of the Aggregate Certificate Principal Balance relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Agreement; and
d. The Trustee shall not be charged with knowledge of any event referred
to in Section 7.01 unless a Responsible Officer of the Trustee at the Corporate
Trust Office obtains actual knowledge of such event or the Trustee receives
written notice of such event from the Servicer or the Certificateholders
representing, in the aggregate, 25% or more of the Aggregate Certificate
Principal Balance.
11-1
None of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Originator, the Seller or the Servicer under
this Agreement, except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges of,
the Servicer in accordance with the terms of this Agreement. The Trustee shall
not be required to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
SECTION 11.02. Certain Matters Affecting the Trustee. Except as otherwise
-------------------------------------
provided in Section 11.01:
a. The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate, certificate of a
Servicing Officer, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
b. The Trustee may consult with counsel and any opinion of any counsel
for the Originator, the Seller or the Servicer shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by the Trustee hereunder in good faith and in accordance with such
Opinion of Counsel;
c. The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Agreement, or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the request, order or direction
of any of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby; provided, however, that nothing contained herein
-------- -------
shall relieve the Trustee of the obligations, upon the occurrence of an Event of
Termination (which has not been cured), to exercise such of the rights and
powers vested in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
d. Prior to the occurrence of an Event of Termination and after the
curing of all Events of Termination which may have occurred, the Trustee shall
not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Certificateholders representing, in the
aggregate, 25% or more of the Aggregate Certificate Principal Balance; provided,
--------
however, that if the payment within a reasonable time to the Trustee of the
-------
costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against such cost, expense or liability
as a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Servicer or, if paid by the Trustee, shall be
reimbursed by the Servicer upon demand; and
11-2
e. The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian and shall not be liable for any acts or omissions of
such agents, attorneys or custodians if appointed by it with due care hereunder.
SECTION 11.03. Trustee Not Liable for Certificates, Class C Certificate or
-----------------------------------------------------------
Loans. The Trustee assumes no responsibility for the correctness of the recitals
-----
contained herein, in the Certificates or in the Class C Certificate (other than
the Trustee's execution thereof). The Trustee makes no representations as to
the validity or sufficiency of this Agreement, of the Certificates or of the
Class C Certificate (other than its execution thereof) or of any Loan, Loan File
or related document. The Trustee shall not be accountable for the use or
application by the Servicer, the Originator or the Seller of funds paid to the
Originator or the Seller, as applicable in consideration of conveyance of the
Loans to the Trust by the Originator and the Seller or deposited in or withdrawn
from the Certificate Account by the Servicer.
SECTION 11.04. Trustee May Own Certificates. The Trustee in its individual
----------------------------
or other capacity may become the owner or pledgee of Certificates representing
less than all the beneficial interest in the Trust with the same rights as it
would have if it were not Trustee.
SECTION 11.05. Rights of Certificateholders to Direct Trustee and to Waive
-----------------------------------------------------------
Events of Termination. Holders of Certificates representing, in the aggregate,
---------------------
25% or more of the Aggregate Certificate Principal Balance shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that, subject to Section 11.01, the Trustee shall
-------- -------
have the right to decline to follow any such direction if the Trustee being
advised by counsel determines that the action so directed may not lawfully be
taken, or if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceedings so directed would be
illegal or involve it in personal liability or be unduly prejudicial to the
rights of Certificateholders not parties to such direction; and provided,
--------
further that nothing in this Agreement shall impair the right of the Trustee to
-------
take any action deemed proper by the Trustee and which is not inconsistent with
such direction by the Certificateholders. Holders of the Certificates
representing, in the aggregate, 51% or more of the Aggregate Certificate
Principal Balance may on behalf of all Certificateholders waive any past Event
of Termination hereunder and its consequences, except a default in respect of a
------
covenant or provision hereof which under Section 12.08 cannot be modified or
amended without the consent of all Certificateholders, and upon any such waiver,
such Event of Termination shall cease to exist and shall be deemed to have been
cured for every purpose of this Agreement; but no such waiver shall extend to
any subsequent or other Event of Termination or impair any right consequent
thereon.
SECTION 11.06. The Servicer to Pay Trustee's Fees and Expenses. The
-----------------------------------------------
Servicer agrees:
a. to pay to the Trustee reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
including the services provided in connection with any auctions pursuant to
Section 8.06(e);
11-3
b. except as otherwise expressly provided herein, to reimburse the
Trustee, to the extent requested by the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel, and reasonable
compensation, expenses and disbursements in connection with any auctions
pursuant to Section 8.06(e)), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
c. to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
Trust and its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The covenants in this Section 11.06 shall be for the benefit of the Trustee
in its capacities as Trustee, Paying Agent and Certificate Registrar hereunder,
and shall survive the termination of this Agreement. If any entity other than
the Originator or a subsidiary or affiliate of the Originator is the Servicer,
the Servicer shall be reimbursed for any costs and expenses incurred by it in
this Section 11.06 pursuant to Sections 5.08 and 8.04(a)(3).
SECTION 11.07. Eligibility Requirements for Trustee. The Trustee hereunder
------------------------------------
shall at all times be a financial institution organized and doing business under
the laws of the United States of America or any State, authorized under such
laws to exercise corporate trust powers, and shall have a combined capital and
surplus of at least $50,000,000 or shall be a member of a bank holding system
the aggregate combined capital and surplus of which is $50,000,000, provided
--------
that the Trustee's separate capital and surplus shall at all times be at least
the amount required by Section 310(a)(2) of the Trust Indenture Act of 1939, as
amended. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of a supervising or examining authority,
then for the purposes of this Section 11.07, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In addition, the Trustee
(or, if the Trustee is U.S. Bank Trust National Association, the parent company
of U.S. Bank Trust National Association) shall at all times have (a) a long-term
deposit rating from S&P of at least BBB or as shall be otherwise acceptable to
S&P, (b) have a long-term deposit rating from Fitch of at least BBB or as shall
be otherwise acceptable to Fitch and (c) a long-term deposit rating from ▇▇▇▇�'�
of at least Baa2 or as shall be otherwise acceptable to ▇▇▇▇�'�. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section 11.07, the Trustee shall resign immediately in the manner and with
the effect specified in Section 11.08.
SECTION 11.08. Resignation or Removal of Trustee. The Trustee may at any
---------------------------------
time resign and be discharged from the trusts hereby created by giving written
notice thereof to the Servicer and the Originator. Upon receiving such notice of
resignation, the Originator shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to each of the Servicer and the Originator and one copy to the
successor Trustee. If no successor Trustee shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
11-4
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 11.07 and shall fail to resign after written request
therefor by the Originator, or if at any time the Trustee shall be legally
unable to act, or shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Originator may
remove the Trustee. If the Originator shall have removed the Trustee under the
authority of the immediately preceding sentence, the Originator shall promptly
appoint a successor Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 11.08 shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 11.09.
SECTION 11.09. Successor Trustee. Any successor Trustee appointed as
-----------------
provided in Section 11.08 shall execute, acknowledge and deliver to the
Servicer, the Originator and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as Trustee. The predecessor Trustee shall deliver
or cause to be delivered to the successor Trustee the Loans and the Loan Files
and any related documents and statements held by it hereunder; and, if the Loans
are then held by a Custodian pursuant to a custodial agreement, the predecessor
Trustee and the Custodian shall amend such custodial agreement to make the
successor Trustee the successor to the predecessor Trustee thereunder; and the
Servicer, the Originator and the predecessor Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Trustee all such
rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this Section
11.09 unless at the time of such acceptance such successor Trustee shall be
eligible under the provisions of Section 11.07.
Upon acceptance of appointment by a successor ▇▇▇▇▇▇� as provided in this
Section 11.09, the Servicer shall cause notice of the succession of such Trustee
hereunder to be mailed to the Rating Agencies and to each Certificateholder and
the Class C Certificateholder at their addresses as shown in the Certificate
Register. If the Servicer fails to mail such notice within ten days after
acceptance of appointment by the successor Trustee, the successor Trustee shall
cause such notice to be mailed at the expense of the Servicer.
SECTION 11.10. Merger or Consolidation of Trustee. Any Person into which
----------------------------------
the Trustee may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Person shall be eligible under the provisions of Section 11.07,
--------
without the execution or filing of any paper or any further act on the part of
any of the parties
11-5
hereto, anything herein to the contrary notwithstanding. The Trustee shall
promptly notify the Rating Agencies in the event it is a party to any merger,
conversion or consolidation.
SECTION 11.11. Tax Returns. Upon the Servicer's request, the Trustee will
-----------
furnish the Servicer with all such information as the Servicer may reasonably
require in connection with preparing all tax returns of the Trust and the
Trustee shall execute such returns.
SECTION 11.12. Obligor Claims. In connection with any offset defenses, or
--------------
affirmative claims for recovery, asserted in legal actions brought by Obligors
under one or more Loans based upon provisions therein complying with, or upon
other rights or remedies arising from, any legal requirements applicable to the
Loans, including, without limitation, the Federal Trade Commission's Trade
Regulation Rule Concerning Preservation of Consumers' Claims and Defenses (16
C.F.R. (S) 433) as amended from time to time:
a. The Trustee is not, and shall not be deemed to be, either in any
individual capacity, as trustee hereunder or otherwise, a creditor, or a joint
venturer with or an Affiliate of, or acting in concert or cooperation with, any
home equity lender, in the arrangement, origination or making of Loans. The
Trustee is the holder of the Loans only as trustee on behalf of the
Certificateholders and the Class C Certificateholder, and not as a principal or
in any individual or personal capacity;
b. The Trustee shall not be personally liable for or obligated to pay
Obligors any affirmative claims asserted thereby, or responsible to
Certificateholders or the Class C Certificateholder for any offset defense
amounts applied against Loan payments, pursuant to such legal actions;
c. The Trustee will pay, solely from available Trust monies, affirmative
claims for recovery by Obligors only pursuant to final judicial orders or
judgments, or judicially approved settlement agreements, resulting from such
legal actions;
d. The Trustee will comply with judicial orders and judgments which
require its actions or cooperation in connection with Obligors' legal actions to
recover affirmative claims against Certificateholders and the Class C
Certificateholder;
e. The Trustee will cooperate with and assist Certificateholders and the
Class C Certificateholder in their defense of legal actions by ▇▇▇▇▇▇▇▇ to
recover affirmative claims if such cooperation and assistance is not contrary to
the interests of the Trustee as a party to such legal actions and if the Trustee
is satisfactorily indemnified for all liability, costs and expenses arising
therefrom; and
f. The Originator hereby agrees to indemnify, hold harmless and defend
the Trustee, Certificateholders and the Class C Certificateholder from and
against any and all liability, loss, costs and expenses of the Trustee,
Certificateholders and the Class C Certificateholder resulting from any
affirmative claims for recovery asserted or collected by Obligors under the
Loans. Notwithstanding any other provision of this Agreement, the obligation of
the Originator under this Section 11.12(f) shall not terminate upon a Service
Transfer pursuant to Article VII.
11-6
SECTION 11.13. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
Notwithstanding any other provisions hereof, at any time, for the purpose
of meeting any legal requirements of any jurisdiction having authority over the
Trust, the Loans or the Obligors, the Originator and the Trustee acting jointly
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons approved by the Trustee to act as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust, and to vest in such Person or Persons, in such capacity,
such title to the Trust, or any part thereof, and, subject to the other
provisions of this Section 11.13, such powers, duties, obligations, rights and
trusts as the Originator and the Trustee may consider necessary or desirable.
If the Originator shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Termination
shall have occurred and be continuing, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
11.07 hereunder and no notice to Certificateholders or the Class C
Certificateholder of the appointment of co-trustee(s) or separate trustee(s)
shall be required under Section 11.09.
In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 11.13 all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such co-trustee or separate trustee jointly, except
to the extent that under any law of any jurisdiction in which any particular act
or acts are to be performed (whether as Trustee hereunder or as successor to the
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed by such co-trustee or separate
trustee at the direction of the Trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then co-trustees and separate trustees, as
effectively as if given to each of them. Every instrument appointing any co-
trustee or separate trustee shall refer to this Agreement and the conditions of
this Article XI. Each co-trustee and separate trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any co-trustee or separate trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any co-trustee or separate trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 11.14. Trustee and U.S. Bancorp. In the event the Trustee ceases
------------------------
to be a direct, wholly owned subsidiary of U.S. Bancorp, the Trustee shall
promptly notify the Rating Agencies.
11-7
SECTION 11.15. Trustee Advances.
----------------
a. If the Servicer fails to deposit into the Certificate Account Advances
as required by Section 8.02, then the Trustee shall, subject to the provisions
of paragraph (b) below, from its own funds, deposit into the Certificate Account
the amount not so deposited by the Servicer on or before the Business Day
preceding the related Payment Date (a "Trustee Advance").
b. The Trustee shall not be required to make any Trustee Advance if and
to the extent that it determines in good faith that the funds, if advanced,
would not be recoverable by it from subsequent payments on the related Loan in
accordance with Section 8.04(a).
c. The Trustee shall be entitled to reimbursement of a Trustee Advance
from funds subsequently available therefor in the Certificate Account in
accordance with Section 8.04(a).
11-8
ARTICLE XII.
MISCELLANEOUS
-------------
SECTION 12.01. Servicer Not to Resign; Delegation of Servicing Duties. The
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Servicer shall not resign from the obligations and duties hereby imposed on it
except upon determination that the performance of its duties hereunder is no
longer permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel for the
Servicer to such effect delivered to the Trustee. No such resignation shall
become effective until the Trustee or a successor servicer shall have assumed
the responsibilities and obligations of the Servicer in accordance with Section
7.03.
Notwithstanding the foregoing, Conseco Finance Corp., if it is the
Servicer, may delegate some or all of its servicing duties to a wholly owned
subsidiary of the Originator, for so long as said subsidiary remains, directly
or indirectly, a wholly owned subsidiary of Conseco Finance Corp.
Notwithstanding any such delegation, Conseco Finance Corp. shall retain all of
the rights and obligations of the Servicer hereunder.
SECTION 12.02. Conseco and Seller Not to Engage in Certain Transactions
--------------------------------------------------------
with Respect to the Trust.
-------------------------
Neither Conseco Finance Corp. nor the Seller shall:
a. Provide credit to any Certificateholder for the purpose of enabling
such Certificateholder to purchase Certificates;
b. Purchase any Certificates in an agency or trustee capacity; or
c. Loan any money to the Trust (other than Advances pursuant to Section
8.02).
SECTION 12.03. Maintenance of Office or Agency. The Trustee will maintain
-------------------------------
in Minneapolis or St. ▇▇▇▇, Minnesota, an office or agency where Certificates or
the Class C Certificate may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustee in respect of the
Certificates, the Class C Certificate and this Agreement may be served. On the
date hereof the Trustee's office for such purposes is located at ▇▇� ▇▇▇▇ ▇▇�
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇�, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇� ▇▇▇▇�. The Trustee will give prompt
written notice to the Originator, the Seller, the Servicer, the
Certificateholders and the Class C Certificateholder of any change in the
location of the Certificate Register or any such office or agency.
SECTION 12.04. Termination.
-----------
a. The Trust created hereby and the respective obligations and
responsibilities of the Originator, the Seller, the Servicer and the Trustee
created hereby (other than the responsibility of the Trustee to make any final
distributions to Certificateholders and the Class C Certificateholder as set
forth below) shall terminate on the earlier of (a) the Payment Date on which the
principal balance of all of the Loans is reduced to zero; or (b) the Payment
Date occurring in the month following the sale of the Loans pursuant to Section
8.06; provided, that in no event shall the trust created hereby continue beyond
--------
the expiration of 21 years from the death
12-1
of the last survivor of the descendants of ▇▇▇▇▇▇ �. ▇▇▇▇▇▇�, the late
Ambassador of the United States to the Court of St. ▇▇▇▇�, living on the date
hereof, and provided, further, that the Servicer's and the Originator's
-------- -------
representations and warranties and indemnities by the Originator and the
Servicer shall survive termination. Any termination of the Trust must be
conducted so as to qualify as a "qualified liquidation" of the REMIC within the
meaning of the REMIC Provisions.
b. Notice of any termination, specifying the Final Payment Date (which
shall be a date that would otherwise be a Payment Date) upon which all
Certificateholders or the Class C Certificateholder may surrender their
Certificates or the Class C Certificate to the Trustee for payment of the final
distribution and cancellation, shall be given promptly by the Trustee (upon
direction by the Servicer ten days prior to the date such notice is to be
mailed) by letter to each of the Rating Agencies, the Certificateholders and the
Class C Certificateholder mailed no later than the fifth Business Day of the
month of the Final Payment Date specifying (1) the Final Payment Date upon which
final payment on the Certificates and the Class C Certificate will be made upon
presentation and surrender of Certificates and the Class C Certificate at the
office or agency of the Trustee therein designated; (2) the amount of any such
final payment; and (3) that the Record Date otherwise applicable to such Payment
Date is not applicable, payments being made only upon presentation and surrender
of the Certificates and the Class C Certificate at the office or agency of the
Trustee therein specified. Any notice of sale of the Loans pursuant to Section
8.06 shall constitute the adoption by the Trustee on behalf of the
Certificateholders and the Class C Certificateholder of a plan of complete
liquidation within the meaning of Section 860F of the Code on the date such
notice is given when signed by the Trustee. Each such notice shall, to the
extent required by the REMIC Provisions or other applicable law, be signed on
behalf of the Trust by the Trustee. The Trustee shall give such notice to the
Certificate Registrar at the time such notice is given to the Certificateholders
and the Class C Certificateholder. In the event such notice is given in
connection with the sale of the Loans pursuant to Section 8.06, the Class C
Certificateholder or the Trustee, as applicable, shall deposit in the
Certificate Account on the Final Payment Date in immediately available funds an
amount equal to the purchase price specified in Section 8.06 and upon such
deposit the Certificateholders and the Class C Certificateholder will be
entitled to the amount of such purchase price but not amounts in excess thereof,
all as provided herein. Upon such final deposit, the Trustee shall promptly
release to the purchaser of the Loans pursuant to Section 8.06 the Loan Files
for the remaining Loans, and the Trustee shall execute all assignments,
endorsements and other instruments necessary to effectuate such transfer.
c. Upon presentation and surrender of the Certificates and the Class C
Certificate, the Trustee shall cause to be distributed from the Certificate
Account, in the following order of priority, to the Certificateholders and the
Class C Certificateholder on the Final Payment Date in proportion to their
respective Percentage Interests: (1) to the extent the Amount Available is
sufficient therefor, and in the order of priority provided for in Sections
8.04(b), 8.04(c) and 8.04(d), an amount equal to the Formula Distribution Amount
in respect of each Class of Certificates; and (2) as to the Class C Certificate,
the amount which remains on deposit in the Certificate Account (other than
amounts retained to meet claims) after application pursuant to clause (1) above.
The distribution on the Final Payment Date pursuant to this Section 12.04 shall
be in lieu of the distribution otherwise required to be made on such Payment
Date in respect of each Class of Certificates and the Class C Certificate.
12-2
d. In the event that all of the Certificateholders and the Class C
Certificateholder do not surrender their Certificates and the Class C
Certificate for cancellation within three months after the time specified in the
above-mentioned written notice, the Originator shall give a second written
notice to the remaining Certificateholders and the Class C Certificateholder to
surrender their Certificates and the Class C Certificate for cancellation and
receive the final distribution with respect thereto. If within three months
after the second notice all the Certificates and the Class C Certificate shall
not have been surrendered for cancellation, the Originator shall transfer to
itself all amounts remaining on deposit in the Certificate Account, to hold in
trust for Certificateholders and the Class C Certificateholder who have not
surrendered their Certificates or the Class C Certificate, as the case may be,
for cancellation, together with the final record list of Certificateholders and
the Class C Certificateholder, and the Originator shall take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates and to contact the
Class C Certificateholder concerning its surrender of its Class C Certificate,
and the cost thereof shall be paid out of the funds and other assets which
remain in trust hereunder.
SECTION 12.05. Acts of Certificateholders and Class C Certificateholder.
--------------------------------------------------------
a. Except as otherwise specifically provided herein, whenever
Certificateholder approval, authorization, direction, notice, consent, waiver,
or other action is required hereunder, such approval, authorization, direction,
notice, consent, waiver or other action shall be deemed to have been given or
taken on behalf of, and shall be binding upon, all Certificateholders if agreed
to by Holders of Certificates representing, in the aggregate, 51% or more of the
Aggregate Certificate Principal Balance.
b. Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders or the Class C Certificateholder may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Certificateholders or the Class C Certificateholder in person or by an
agent duly appointed in writing; and except as herein otherwise expressly
provided such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where required, to the Servicer. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Agreement and (subject to Section 11.01)
conclusive in favor of the Trustee, the Servicer and the Originator if made in
the manner provided in this Section.
c. The fact and date of the execution by any Certificateholder or the
Class C Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Trustee deems sufficient.
d. The ownership of Certificates and the Class C Certificate shall be
proved by the Certificate Register.
e. Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Certificateholder or the Class C Certificateholder shall bind
every holder of every Certificate or the Class C Certificate, as applicable,
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, or omitted to be
12-3
done by the Trustee, the Servicer or the Originator in reliance thereon, whether
or not notation of such action is made upon such Certificates or Class C
Certificate.
f. The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
SECTION 12.06. Calculations. Except as otherwise provided in this
------------
Agreement, all interest rate and basis point calculations under this Agreement
will be made on the basis of a 360-day year and twelve 30-day months and will be
carried out to at least three decimal places.
SECTION 12.07. Assignment or Delegation by Originators. Except as
---------------------------------------
specifically authorized hereunder, and except for its obligations as Servicer
which are dealt with under Article V and Article VII, the Originator may not
convey and assign or delegate any of its rights or obligations hereunder absent
the prior written consent of Holders of Certificates representing, in the
aggregate, 66-2/3% or more of the Aggregate Certificate Principal Balance, and
any attempt to do so without such consent shall be void.
SECTION 12.08. Amendment.
---------
a. This Agreement may be amended from time to time by the Originator, the
Servicer and the Trustee, without the consent of any of the Certificateholders
or the Class C Certificateholder, to correct manifest error, to cure any
ambiguity, to correct or supplement any provisions herein which may be
inconsistent with any other provisions herein, as the case may be, to make such
changes as are necessary to maintain the status of the Trust as a "real estate
mortgage investment conduit" under the REMIC Provisions of the Code or to
otherwise effectuate the benefits of such status to the Trust, the
Certificateholders or the Class C Certificateholder, including, without
limitation, to implement any provision permitted by law that would enable a
REMIC to avoid the imposition of any tax, or to make any other provisions with
respect to matters or questions arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement; provided, however, that
-------- -------
such action shall not, as evidenced by an Opinion of Counsel for the Servicer,
adversely affect in any material respect the interests of any Certificateholder.
b. This Agreement may also be amended from time to time by the Servicer,
the Originator and the Trustee, with the consent of 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 such Certificateholders; provided,
--------
however, that no such amendment shall (a) reduce in any manner the amount of, or
-------
delay the timing of, collections of payments on the Loans or distributions which
are required to be made on any Certificate, (b) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the holders of
all Certificates then outstanding, (c) result in the disqualification of the
Trust as a REMIC under the Code, (d) adversely affect the status of the Trust as
a REMIC or the status of the Certificates as "regular interests" in the REMIC,
or (e) cause any tax (other than any tax imposed on "net income from foreclosure
property" under Section 860G(c)(1) of the Code that would be imposed without
regard to such amendment) to be imposed on the Trust, including, without
limitation, any tax imposed on "prohibited transactions"
12-4
under Section 860F(a)(1) of the Code or on "contributions after the startup
date" under Section 860G(d)(1) of the Code. This Agreement may not be amended
without the consent of the Class C Certificateholder, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement which would modify in any manner the rights of the Class C
Certificateholder.
c. This Agreement shall not be amended under this Section without the
consent of 100% of the Certificateholders and the Class C 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 12.08, the Trustee shall furnish written notification to each of the
Rating Agencies. Promptly after the execution of any amendment or consent
pursuant to this Section 12.08, the Trustee shall furnish written notification
of the substance of such amendment to the Rating Agencies, each
Certificateholder and the Class C Certificateholder.
e. It shall not be necessary for the consent of Certificateholders and
the Class C Certificateholder under this Section 12.08 to approve the particular
form of any proposed amendment, 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 and
the Class C Certificateholder shall be subject to such reasonable requirements
as the Trustee may prescribe.
f. The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's own rights, duties or immunities under
this Agreement or otherwise.
g. In connection with any amendment pursuant to this Section, the Trustee
shall be entitled to receive an Opinion of Counsel to the Servicer to the effect
that such amendment is authorized or permitted by this Agreement.
h. Upon the execution of any amendment or consent pursuant to this
Section 12.08, this Agreement shall be modified in accordance therewith, and
such amendment or consent shall form a part of this Agreement for all purposes,
and every Certificateholder or the Class C Certificateholder hereunder shall be
bound thereby.
i. In the absence of the consent described in subsection (d) of this
Section, in connection with any amendment pursuant to this Section, the Trustee
shall have received an unqualified Opinion of Counsel, the expense of which
shall not be an expense of the Trust, stating that any such amendment (i) will
not adversely affect the status of the Trust as a REMIC or the status of the
Certificates as "regular interests" therein, and (ii) will not cause any tax
(other than any tax imposed on "net income from foreclosure property" under
Section 860G(c)(1) of the Code that would be imposed without regard to such
amendment) to be imposed on the Trust, including, without limitation, any tax
imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code.
12-5
SECTION 12.09. Notices. All communications and notices pursuant hereto to
-------
the Seller, the Servicer, the Originator, the Trustee, the Rating Agencies shall
be in writing and delivered or mailed to it at the appropriate following
address:
If to the Seller:
Conseco Finance Securitizations Corp.
300 Landmark Towers
▇▇� ▇▇. ▇▇▇▇� ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇� ▇▇▇▇�-1639
Attention: Chief Financial Officer
Telecopier Number: (▇▇�) ▇▇�-▇▇▇▇
If to the Servicer:
Conseco Finance Corp.
1100 Landmark Towers
▇▇� ▇▇. ▇▇▇▇� ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇� ▇▇▇▇�-1639
Attention: Chief Financial Officer
Telecopier Number: (▇▇�) ▇▇�-▇▇▇▇
If to the Trustee:
U.S. Bank Trust National Association
Corporate Trust Department
▇▇� ▇▇▇▇ ▇▇▇▇� ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇�
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇� ▇▇▇▇�
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇�-▇▇▇▇
Telecopier Number: (▇▇�) ▇▇�-▇▇▇▇
If to S&P:
Standard & Poor's
▇▇ ▇▇▇▇� ▇▇▇▇▇▇
▇▇� ▇▇▇▇, ▇▇� ▇▇▇▇ ▇▇▇▇�
Attention: Mortgage Surveillance
If to Fitch:
Fitch, Inc.
▇▇� ▇▇▇▇� ▇▇▇▇▇▇ ▇▇▇▇�
▇▇� ▇▇▇▇, ▇▇� ▇▇▇▇ ▇▇▇▇�
Attention: ▇▇▇▇▇▇ ▇▇�
If to Moody's:
▇▇▇▇�'� Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇� ▇▇▇▇, ▇▇ ▇▇▇▇�
12-6
or at such other address as the party may designate by notice to the other
parties hereto, which notice shall be effective when received. All
communications and notices pursuant hereto to a Certificateholder or the Class C
Certificateholder shall be in writing and delivered or mailed at the address
shown in the Certificate Register.
SECTION 12.10. Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement sets 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. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
SECTION 12.11. Headings. The headings herein are for purposes of
--------
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 12.12. Governing Law. This Agreement shall be governed by, and
-------------
construed and enforced in accordance with, the laws of the State of Minnesota.
SECTION 12.13. No Petition. The Originator, Seller, Servicer and the
-----------
Trustee, by entering into this Agreement and each Certificateholder and Class C
Certificateholder, by accepting a Certificate or the Class C Certificate, hereby
covenant and agree that they will not at any time institute against the Trust,
or join in any institution against the Trust of, any bankruptcy proceedings
under any United States federal or state bankruptcy or similar law in connection
with any obligations with respect to the Certificates, the Class C Certificate
or this Agreement
12-7
IN WITNESS WHEREOF, the parties hereto have caused this Pooling and
Servicing Agreement to be executed by their respective officers thereunto duly
authorized this 31/st/ day of October, 2000.
CONSECO FINANCE CORP.
By:____________________________________________
▇▇▇▇▇▇� �. ▇▇▇▇▇▇
Senior Vice President and Treasurer
CONSECO FINANCE SECURITIZATIONS CORP.
By:____________________________________________
▇▇▇▇▇▇� �. ▇▇▇▇▇▇
Senior Vice President and Treasurer
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Trustee
By:____________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇�-▇▇▇▇
Assistant Vice President
12-8
STATE OF MINNESOTA )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2000, by ____________________, of Conseco Finance Corp., a
Delaware corporation, on behalf of the corporation.
_____________________________________________
Notary Public
[SEAL]
STATE OF MINNESOTA )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2000, by ____________________, of Conseco Finance
Securitizations Corp., a Minnesota corporation, on behalf of the corporation.
_____________________________________________
Notary Public
[SEAL]
12-9
STATE OF MINNESOTA )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2000, by ▇▇▇▇▇▇ ▇▇▇▇▇▇�-▇▇▇▇, of U.S. Bank Trust National
Association, a national banking association, on behalf of the national banking
association.
_____________________________________________
Notary Public
[SEAL]
12-10
EXHIBIT A-1
-----------
FORM OF CLASS AF-[1A][1][2][3][4] CERTIFICATE
---------------------------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
Class AF-[1-A][1][2][3][4] No.
(Senior)
Cut-off Date:
as defined in the Pooling and Pass-Through Rate: ____%
Servicing Agreement dated
October 1, 2000
Denomination: $_______
First Payment Date: Aggregate Denomination of
December 15, 2000 all Class AF-[1A][1][2][3][4]
Certificates: $_______
Servicer: Final Scheduled Payment Date:
Conseco Finance Corp. October 15, 2031 (or if such day is not a
Business Day, then the next succeeding
Business Day)
CUSIP: ________
CERTIFICATE FOR HOME EQUITY LOANS
SERIES 2000-F, CLASS AF-[1A][1][2][3][4] (SENIOR)
-------------------------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
CONSECO FINANCE CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET FORTH
IN THE AGREEMENT.
This certifies that Cede & Co. is the registered owner of the undivided
Percentage Interest represented by the original principal amount set forth above
in the Certificates for Home Equity Loans, Series 2000-F, Class AF-
[1A][1][2][3][4] issued by Conseco Finance Home Equity Loan Trust 2000-F (the
"Trust"), which includes among its assets a pool of closed-end home equity loans
(the "Loans") (including, without limitation, all mortgages, deeds of trust and
security deeds relating to such Loans and any and all rights to receive payments
due on the Loans after the applicable Cut-off Date). The Trust has been created
pursuant to a Pooling and Servicing Agreement (the "Agreement"), dated as of
October 1, 2000, among Conseco Finance Corp., as Originator and Servicer (the
"Originator"), Conseco Finance Securitizations Corp., as Seller (the "Seller"),
and U.S. Bank Trust National Association, as Trustee of the Trust (the
"Trustee"). This Certificate is one of the Certificates described in the
Agreement and is issued
A-1-1
pursuant and subject to the Agreement. By acceptance of this Certificate the
holder assents to and becomes bound by the Agreement. To the extent not defined
herein, all capitalized terms have the meanings assigned to such terms in the
Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing in December 2000, so long
as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class AF-[1A][1][2][3][4] Certificates with an aggregate
Percentage Interest of at least 5% of the Class AF-[1A][1][2][3][4] Certificates
and so desires, by wire transfer pursuant to instructions delivered to the
Trustee at least 10 days prior to such Payment Date) to the registered
Certificateholder at the address appearing on the Certificate Register as of the
Business Day immediately preceding such Payment Date, in an amount equal to the
Certificateholder's Percentage Interest of the Distribution Amount for the Class
AF-[1A][1][2][3][4] Certificates for such Payment Date. Distributions of
interest and principal on the Class AF-[1A][1][2][3][4] Certificates will be
made primarily from amounts available in respect of the Loans. The final
scheduled Payment Date of this Certificate is October 15, 2031 or the next
succeeding Business Day if such October 15 is not a Business Day.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that the Trustee in its individual capacity is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement. By acceptance of this Certificate,
the Certificateholder agrees to disclosure of his, her or its name and address
to other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Minneapolis or St. ▇▇▇▇, Minnesota, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder hereof or his or her attorney duly authorized in writing,
and thereupon one or more new Certificates evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") to the Trustee or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of
A-1-2
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL in as much as the registered owner hereof, Cede & Co.,
has an interest herein.
The Originator, the Seller, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Originator, the Seller, the
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Originator, the Seller, the Servicer, the Trustee,
the Paying Agent, the Certificate Registrar nor any such agent shall be affected
by any notice to the contrary.
This Certificate shall be a "security" for purposes of Article 8, Section
102(a)(15)(B) of the Uniform Commercial Code and shall be governed by such
Article 8 as in effect in the state of Minnesota from time to time.
A-1-3
IN WITNESS WHEREOF, Conseco Finance Home Equity Loan Trust 2000-F has
caused this Certificate to be duly executed by the manual signature of a duly
authorized officer of the Trustee.
Dated:___________________________ CONSECO FINANCE HOME EQUITY
LOAN TRUST 2000-F
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
By:_____________________________________
Authorized Officer
A-1-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________________________________________ the within Certificate
for Home Equity Loans, Series 2000-F, and does hereby irrevocably constitute and
appoint ______________________________ Attorney to transfer the said certificate
on the Certificate Register maintained by the Trustee, with full power of
substitution in the premises.
Dated:____________________________ By:_____________________________________
Signature
A-1-5
EXHIBIT A-2
-----------
FORM OF CLASS AV-1 CERTIFICATE
------------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
Class AV-1 No.
(Senior)
Cut-off Date: Pass-Through Rate: Variable
as defined in the Pooling and Servicing rate equal to Class AV-1
Agreement dated October 1, 2000 Pass-Through Rate
Denomination: $_________
First Payment Date: Aggregate Denomination of
December 15, 2000 all Class AV-1
Certificates: $_________
Servicer: Final Scheduled Payment Date:
Conseco Finance Corp. October 15, 2031 (or if such day is not a
Business Day, then the next succeeding
Business Day)
CUSIP: ________
CERTIFICATE FOR HOME EQUITY LOANS
SERIES 2000-F, CLASS AV-1 (SENIOR)
----------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
CONSECO FINANCE CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET FORTH
IN THE AGREEMENT.
This certifies that Cede & Co. is the registered owner of the undivided
Percentage Interest represented by the original principal amount set forth above
in the Certificates for Home Equity Loans, Series 2000-F, Class AV-1 issued by
Conseco Finance Home Equity Loan Trust 2000-F (the "Trust"), which includes
among its assets a pool of closed-end home equity loans (the "Loans")
(including, without limitation, all mortgages, deeds of trust and security deeds
relating to such Loans and any and all rights to receive payments due on the
Loans after the applicable Cut-off Date). The Trust has been created pursuant
to a Pooling and Servicing Agreement (the "Agreement"), dated as of October 1,
2000, among Conseco Finance Corp., as Originator and Servicer (the
"Originator"), Conseco Finance Securitizations Corp., as Seller (the "Seller")
and U.S. Bank Trust National Association, as Trustee of the Trust (the
"Trustee"). This Certificate is one of the Certificates described in the
Agreement and is issued pursuant and
A-2-1
subject to the Agreement. By acceptance of this Certificate the holder assents
to and becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing in December 2000, so long
as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class AV-1 Certificates with an aggregate Percentage
Interest of at least 5% of the Class AV-1 Certificates and so desires, by wire
transfer pursuant to instructions delivered to the Trustee at least 10 days
prior to such Payment Date) to the registered Certificateholder at the address
appearing on the Certificate Register as of the Business Day immediately
preceding such Payment Date, in an amount equal to the Certificateholder's
Percentage Interest of the Distribution Amount for the Class AV-1 Certificates
for such Payment Date. Distributions of interest and principal on the Class AV-1
Certificates will be made primarily from amounts available in respect of the
Loans. The final scheduled Payment Date of this Certificate is October 15, 2031
or the next succeeding Business Day if such October 15 is not a Business Day.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that the Trustee in its individual capacity is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement. By acceptance of this Certificate,
the Certificateholder agrees to disclosure of his, her or its name and address
to other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Minneapolis or St. ▇▇▇▇, Minnesota, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder hereof or his or her attorney duly authorized in writing,
and thereupon one or more new Certificates evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") to the Trustee or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of
A-2-2
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL in as much as the registered owner hereof, Cede & Co.,
has an interest herein.
The Originator, the Seller, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Originator, the Seller, the
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Originator, the Seller, the Servicer, the Trustee,
the Paying Agent, the Certificate Registrar nor any such agent shall be affected
by any notice to the contrary.
This Certificate shall be a "security" for purposes of Article 8, Section
102(a)(15)(B) of the Uniform Commercial Code and shall be governed by such
Article 8 as in effect in the state of Minnesota from time to time.
A-2-3
IN WITNESS WHEREOF, Conseco Finance Home Equity Loan Trust 2000-F has
caused this Certificate to be duly executed by the manual signature of a duly
authorized officer of the Trustee.
Dated:__________________________ CONSECO FINANCE HOME EQUITY
LOAN TRUST 2000-F
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
By:_____________________________________
Authorized Officer
A-2-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________________ the within Certificate for Home Equity
Loans, Series 2000-F, and does hereby irrevocably constitute and appoint
___________________________________ Attorney to transfer the said certificate on
the Certificate Register maintained by the Trustee, with full power of
substitution in the premises.
Dated:_________________________ By:_____________________________________
Signature
A-2-5
EXHIBIT B-1
-----------
FORM OF CLASS MF-[1][2] CERTIFICATE
-----------------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS AF
CERTIFICATES [AND CLASS MF-1 CERTIFICATES] AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
Class MF-[1][2] No.
(Subordinate)
Cut-off Date: Pass-Through Rate: _____%
as defined in the Pooling and
Servicing Agreement dated Denomination: $______
October 1, 2000
Aggregate Denomination of
First Payment Date: all Class MF-[1][2] Certificates:
December 15, 2000 $_______
Servicer: Final Scheduled Payment Date:
Conseco Finance Corp. October 15, 2031 (or if such day is not a
Business Day, then the next succeeding
Business Day)
CUSIP: _________
CERTIFICATE FOR HOME EQUITY LOANS
SERIES 2000-F, CLASS MF-[1][2] (SUBORDINATE)
--------------------------------------------
EXCEPT AS PROVIDED IN SECTION 9.02(b)(2) OF THE POOLING AND SERVICING
AGREEMENT, BY ACCEPTANCE OF THIS CERTIFICATE, THE PURCHASER OF THE CERTIFICATE
OR ANY INTEREST HEREIN BY, ON BEHALF OF OR WITH PLAN ASSETS OF ANY EMPLOYEE
BENEFIT PLAN THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THAT IS DESCRIBED IN SECTION 4975(e)(1) OF THE
CODE (EACH, A "PLAN") ACKNOWLEDGES THAT EITHER THE CERTIFICATEHOLDER HAS
----
DELIVERED TO THE ORIGINATOR AND THE TRUSTEE AT ITS OWN EXPENSE AN OPINION OF
COUNSEL (SATISFACTORY TO THE ORIGINATOR AND THE TRUSTEE) THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE BY SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE
TRUST BEING DEEMED TO BE "PLAN ASSETS"
B-1-1
AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE AND
WILL NOT SUBJECT THE TRUSTEE, THE ORIGINATOR, THE SELLER OR THE SERVICER TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, OR, IF
NO SUCH OPINION IS DELIVERED, IS DEEMED TO REPRESENT TO THE TRUSTEE, THE
ORIGINATOR, THE SELLER AND THE SERVICER EITHER (I) THAT THE PERSON ACQUIRING THE
CERTIFICATE IS NEITHER A PLAN, NOR ACTING ON BEHALF OF A PLAN, SUBJECT TO ERISA
OR TO SECTION 4975 OF THE CODE, OR (II) THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE BY SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED
TO BE PLAN ASSETS AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA
AND THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE ORIGINATOR, THE SELLER OR THE
SERVICER TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
CONSECO FINANCE CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET FORTH
IN THE AGREEMENT.
This certifies that Cede & Co. is the registered owner of the undivided
Percentage Interest represented by the original principal amount set forth above
in the Certificates for Home Equity Loans, Series 2000-F, Class MF-[1][2] issued
by Conseco Finance Home Equity Loan Trust 2000-F (the "Trust"), which includes
among its assets a pool of closed-end home equity loans (the "Loans")
(including, without limitation, all mortgages, deeds of trust and security deeds
relating to such Loans and any and all rights to receive payments due on the
Loans after the applicable Cut-off Date). The Trust has been created pursuant
to a Pooling and Servicing Agreement (the "Agreement"), dated as of October 1,
2000, among Conseco Finance Corp., as Originator and Servicer (the
"Originator"), Conseco Finance Securitizations Corp., as Seller (the "Seller")
and U.S. Bank Trust National Association, as Trustee of the Trust (the
"Trustee"). This Certificate is one of the Certificates described in the
Agreement and is issued pursuant and subject to the Agreement. By acceptance of
this Certificate the holder assents to and becomes bound by the Agreement. To
the extent not defined herein, all capitalized terms have the meanings assigned
to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing in December 2000, so long
as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class MF-[1][2] Certificates with an aggregate
Percentage Interest of at least 5% of the Class MF-[1][2] Certificates and so
desires, by wire transfer pursuant to instructions delivered to the Trustee at
least 10 days prior to such Payment Date) to the registered Certificateholder at
the address appearing on the Certificate Register as of the Business Day
immediately preceding such Payment Date, in an amount equal to the
Certificateholder's Percentage Interest of the Distribution Amount for the Class
MF-[1][2] Certificates for such Payment Date. Distributions of interest and
principal on the Class MF-[1][2] Certificates will be made primarily from
amounts available in respect of the Loans. The final scheduled Payment Date of
this Certificate is October 15, 2031 or the next succeeding Business Day if such
October 15 is not a Business Day.
B-1-2
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the
Agreement, for payment hereunder and that the Trustee in its individual capacity
is not personally liable to the Certificateholder for any amounts payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement. By acceptance of this
Certificate, the Certificateholder agrees to disclosure of his, her or its name
and address to other Certificateholders under the conditions specified in the
Agreement.
Except as provided in Section 9.02(b)(2) of the Agreement, no transfer of
this Certificate or any interest herein to any employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or that is described in Section 4975(e)(1) of the Code or to any
person or entity purchasing on behalf of, or with assets of, such an employee
benefit plan (each, a "Plan") will be registered unless the transferee, at its
----
expense, delivers to the Originator and the Trustee an opinion of counsel
(satisfactory to the Originator and the Trustee) that the purchase and holding
of this Certificate by such Plan will not result in the assets of the Trust
being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee, the
Originator, the Seller or the Servicer to any obligation or liability in
addition to those undertaken in the Agreement. Unless such opinion is
delivered, each person acquiring this Certificate will be deemed to represent to
the Trustee, the Originator, the Seller and the Servicer either (i) that such
person is neither a Plan, nor acting on behalf of a Plan, subject to ERISA or to
Section 4975 of the Code, or (ii) that the purchase and holding of this
Certificate by such Plan will not result in the assets of the Trust being deemed
to be Plan assets and subject to the prohibited transaction provisions of ERISA
and the Code and will not subject the Trustee, the Originator, the Seller or the
Servicer to any obligation or liability in addition to those undertaken in the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all
amendments thereto will be provided to any Certificateholder free of charge upon
a written request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Minneapolis or St. ▇▇▇▇, Minnesota, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder hereof or his or her attorney duly authorized in writing,
and thereupon one or more new
B-1-3
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") to the Trustee or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.
The Originator, the Seller, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Originator, the Seller, the
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Originator, the Seller, the Servicer, the Trustee,
the Paying Agent, the Certificate Registrar nor any such agent shall be affected
by any notice to the contrary.
This Certificate shall be a "security" for purposes of Article 8, Section
102(a)(15)(B) of the Uniform Commercial Code and shall be governed by such
Article 8 as in effect in the state of Minnesota from time to time.
B-1-4
IN WITNESS WHEREOF, Conseco Finance Home Equity Loan Trust 2000-F has
caused this Certificate to be duly executed by the manual signature of a duly
authorized officer of the Trustee.
Dated: ____________________ CONSECO FINANCE HOME EQUITY
LOAN TRUST 2000-F
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
By:_________________________________
Authorized Officer
B-1-5
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________ the within Certificate for Home Equity Loans,
Series 2000-F, and does hereby irrevocably constitute and appoint
_______________________ Attorney to transfer the said certificate on the
Certificate Register maintained by the Trustee, with full power of substitution
in the premises.
Dated: _______________________ By: __________________________
Signature
B-1-6
EXHIBIT B-2
-----------
FORM OF CLASS MV-[1][2] CERTIFICATE
-----------------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS AV-1
CERTIFICATES [AND CLASS MV-1 CERTIFICATES] AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
Class MV-[1][2] No.
(Subordinate)
Cut-off Date: Pass-Through Rate: Variable rate
as defined in the Pooling and equal to Class MV-[1][2]
Servicing Agreement dated Pass-Through Rate
October 1, 2000
First Payment Date: Denomination: $______
December 15, 2000
Servicer: Aggregate Denomination of
Conseco Finance Corp. Corp. all Class MV-[1][2] Certificates:
$____
Final Scheduled Payment Date:
October 15, 2031 (or if such day is not a
Business Day, then the next succeeding
Business Day)
CUSIP: ____
CERTIFICATE FOR HOME EQUITY LOANS
SERIES 2000-F, CLASS MV-[1][2] (SUBORDINATE)
--------------------------------------------
EXCEPT AS PROVIDED IN SECTION 9.02(b)(2) OF THE POOLING AND SERVICING
AGREEMENT, BY ACCEPTANCE OF THIS CERTIFICATE, THE PURCHASER OF THE CERTIFICATE
OR ANY INTEREST HEREIN BY, ON BEHALF OF OR WITH PLAN ASSETS OF ANY EMPLOYEE
BENEFIT PLAN THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THAT IS DESCRIBED IN SECTION 4975(e)(1) OF THE
CODE (EACH, A "PLAN") ACKNOWLEDGES THAT EITHER THE CERTIFICATEHOLDER HAS
----
DELIVERED TO THE ORIGINATOR AND THE TRUSTEE AT ITS OWN EXPENSE AN
B-2-1
OPINION OF COUNSEL (SATISFACTORY TO THE ORIGINATOR AND THE TRUSTEE) THAT THE
PURCHASE AND HOLDING OF THIS CERTIFICATE BY SUCH PLAN WILL NOT RESULT IN THE
ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE AND WILL NOT SUBJECT THE
TRUSTEE, THE ORIGINATOR, THE SELLER OR THE SERVICER TO ANY OBLIGATION OR
LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, OR, IF NO SUCH
OPINION IS DELIVERED, IS DEEMED TO REPRESENT TO THE TRUSTEE, THE ORIGINATOR, THE
SELLER AND THE SERVICER EITHER (I) THAT THE PERSON ACQUIRING THE CERTIFICATE IS
NEITHER A PLAN, NOR ACTING ON BEHALF OF A PLAN, SUBJECT TO ERISA OR TO SECTION
4975 OF THE CODE, OR (II) THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY
SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE PLAN
ASSETS AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE AND WILL NOT SUBJECT THE TRUSTEE, THE ORIGINATOR, THE SELLER OR THE
SERVICER TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
CONSECO FINANCE CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET FORTH
IN THE AGREEMENT.
This certifies that Cede & Co. is the registered owner of the undivided
Percentage Interest represented by the original principal amount set forth above
in the Certificates for Home Equity Loans, Series 2000-F, Class MV-[1][2] issued
by Conseco Finance Home Equity Loan Trust 2000-F (the "Trust"), which includes
among its assets a pool of closed-end home equity loans (the "Loans")
(including, without limitation, all mortgages, deeds of trust and security deeds
relating to such Loans and any and all rights to receive payments due on the
Loans after the applicable Cut-off Date). The Trust has been created pursuant to
a Pooling and Servicing Agreement (the "Agreement"), dated as of October 1,
2000, among Conseco Finance Corp., as Originator and Servicer (the
"Originator"), Conseco Finance Securitizations Corp., as Seller (the "Seller")
and U.S. Bank Trust National Association, as Trustee of the Trust (the
"Trustee"). This Certificate is one of the Certificates described in the
Agreement and is issued pursuant and subject to the Agreement. By acceptance of
this Certificate the holder assents to and becomes bound by the Agreement. To
the extent not defined herein, all capitalized terms have the meanings assigned
to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing in December 2000, so long
as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class MV-[1][2] Certificates with an aggregate
Percentage Interest of at least 5% of the Class MV-[1][2] Certificates and so
desires, by wire transfer pursuant to instructions delivered to the Trustee at
least 10 days prior to such Payment Date) to the registered Certificateholder at
the address appearing on the Certificate Register as of the Business Day
immediately preceding such Payment Date, in an amount equal to the
Certificateholder's Percentage Interest of the Distribution Amount for the Class
MV-[1][2] Certificates for such Payment Date. Distributions of interest and
principal on the Class MV-
B-2-2
[1][2] Certificates will be made primarily from amounts available in respect of
the Loans. The final scheduled Payment Date of this Certificate is October 15,
2031 or the next succeeding Business Day if such October 15 is not a Business
Day.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the
Agreement, for payment hereunder and that the Trustee in its individual capacity
is not personally liable to the Certificateholder for any amounts payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement. By acceptance of this
Certificate, the Certificateholder agrees to disclosure of his, her or its name
and address to other Certificateholders under the conditions specified in the
Agreement.
Except as provided in Section 9.02(b)(2) of the Agreement, no transfer of
this Certificate or any interest herein to any employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or that is described in Section 4975(e)(1) of the Code or to any
person or entity purchasing on behalf of, or with assets of, such an employee
benefit plan (each, a "Plan") will be registered unless the transferee, at its
----
expense, delivers to the Originator and the Trustee an opinion of counsel
(satisfactory to the Originator and the Trustee) that the purchase and holding
of this Certificate by such Plan will not result in the assets of the Trust
being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee, the
Originator, the Seller or the Servicer to any obligation or liability in
addition to those undertaken in the Agreement. Unless such opinion is delivered,
each person acquiring this Certificate will be deemed to represent to the
Trustee, the Originator, the Seller and the Servicer either (i) that such person
is neither a Plan, nor acting on behalf of a Plan, subject to ERISA or to
Section 4975 of the Code, or (ii) that the purchase and holding of this
Certificate by such Plan will not result in the assets of the Trust being deemed
to be Plan assets and subject to the prohibited transaction provisions of ERISA
and the Code and will not subject the Trustee, the Originator, the Seller or the
Servicer to any obligation or liability in addition to those undertaken in the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Minneapolis or St. ▇▇▇▇, Minnesota, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder hereof or his or her attorney duly authorized in writing,
and thereupon one or more new Certificates evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
B-2-3
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") to the Trustee or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.
The Originator, the Seller, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Originator, the Seller, the
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Originator, the Seller, the Servicer, the Trustee,
the Paying Agent, the Certificate Registrar nor any such agent shall be affected
by any notice to the contrary.
This Certificate shall be a "security" for purposes of Article 8, Section
102(a)(15)(B) of the Uniform Commercial Code and shall be governed by such
Article 8 as in effect in the state of Minnesota from time to time.
B-2-4
IN WITNESS WHEREOF, Conseco Finance Home Equity Loan Trust 2000-F has
caused this Certificate to be duly executed by the manual signature of a duly
authorized officer of the Trustee.
Dated: __________________________ CONSECO FINANCE HOME EQUITY
LOAN TRUST 2000-F
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
By: ______________________________
Authorized Officer
B-2-5
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________ the within Certificate for Home Equity Loans, Series
2000-F, and does hereby irrevocably constitute and appoint
_______________________ Attorney to transfer the said certificate on the
Certificate Register maintained by the Trustee, with full power of substitution
in the premises.
Dated: ________________________ By: _________________________
Signature
B-2-6
EXHIBIT C-1
-----------
FORM OF CLASS BF-[1][2] CERTIFICATE
-----------------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS AF, CLASS
MF-1 AND CLASS MF-2 CERTIFICATES [AND THE CLASS BF-1 CERTIFICATES] AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
Class BF-[1][2] No.
(Subordinate)
Cut-off Date: Pass-Through Rate: ____%
as defined in the Pooling and
Servicing Agreement dated Denomination: $____
October 1, 2000
First Payment Date: Aggregate Denomination of
December 15, 2000 all Class BF-[1][2] Certificates:
$____
Servicer: Final Scheduled Payment Date:
Conseco Finance Corp. October 15, 2031 (or if such day is not a
Business Day, then the next succeeding
Business Day)
CUSIP: _________
CERTIFICATES FOR HOME EQUITY LOANS
SERIES 2000-F, CLASS BF-[1][2] (SUBORDINATE)
--------------------------------------------
BY ACCEPTANCE OF THIS CERTIFICATE, THE PURCHASER OF THE CERTIFICATE OR ANY
INTEREST HEREIN BY, ON BEHALF OF OR WITH PLAN ASSETS OF ANY EMPLOYEE BENEFIT
PLAN THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR THAT IS DESCRIBED IN SECTION 4975(e)(1) OF THE CODE (EACH,
A "PLAN") ACKNOWLEDGES THAT EITHER THE CERTIFICATEHOLDER HAS DELIVERED TO THE
----
ORIGINATOR AND THE TRUSTEE AT ITS OWN EXPENSE AN OPINION OF COUNSEL
(SATISFACTORY TO THE ORIGINATOR AND THE TRUSTEE) THAT THE PURCHASE AND HOLDING
OF THIS CERTIFICATE BY SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST
BEING DEEMED TO BE "PLAN ASSETS"
C-1-1
AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE AND
WILL NOT SUBJECT THE TRUSTEE, THE ORIGINATOR, THE SELLER OR THE SERVICER TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, OR, IF
NO SUCH OPINION IS DELIVERED, IS DEEMED TO REPRESENT TO THE TRUSTEE, THE
ORIGINATOR, THE SELLER AND THE SERVICER EITHER (I) THAT THE PERSON ACQUIRING THE
CERTIFICATE IS NEITHER A PLAN, NOR ACTING ON BEHALF OF A PLAN, SUBJECT TO ERISA
OR TO SECTION 4975 OF THE CODE, OR (II) THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE BY SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED
TO BE PLAN ASSETS AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA
AND THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE ORIGINATOR, THE SELLER OR THE
SERVICER TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
CONSECO FINANCE CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET FORTH
IN THE AGREEMENT.
This certifies that ___________________ is the registered owner of the
undivided Percentage Interest represented by the original principal amount set
forth above in the Certificates for Home Equity Loans, Series 2000-F, Class BF-
[1][2], issued by Conseco Finance Home Equity Loan Trust 2000-F (the "Trust"),
which includes among its assets a pool of closed-end home equity loans (the
"Loans") (including, without limitation, all mortgages, deeds of trust and
security deeds relating to such Loans and any and all rights to receive payments
due on the Loans after the applicable Cut-off Date). The Trust has been created
pursuant to a Pooling and Servicing Agreement (the "Agreement"), dated as of
October 1, 2000, among Conseco Finance Corp., as Originator and Servicer (the
"Originator"), Conseco Finance Securitizations Corp., as Seller (the "Seller")
and U.S. Bank Trust National Association as Trustee of the Trust (the
"Trustee"). This Certificate is one of the Certificates described in the
Agreement and is issued pursuant and subject to the Agreement. By acceptance of
this Certificate the holder assents to and becomes bound by the Agreement. To
the extent not defined herein, all capitalized terms have the meanings assigned
to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing in December 2000, so long
as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class BF-[1][2] Certificates with an aggregate
Percentage Interest of at least 5% of the Class BF-[1][2] Certificates and so
desires, by wire transfer pursuant to instructions delivered to the Trustee at
least 10 days prior to such Payment Date) to the registered Certificateholder at
the address appearing on the Certificate Register as of the Business Day
immediately preceding such Payment Date, in an amount equal to the
Certificateholder's Percentage Interest of the Distribution Amount for the Class
BF-[1][2] Certificates for such Payment Date. Distributions of interest and
principal on the Class BF-[1][2] Certificates will be made primarily from
amounts available in respect of the Loans. The final scheduled Payment Date of
this Certificate is October 15, 2031 or the next succeeding Business Day if such
October 15 is not a Business Day.
C-1-2
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the
Agreement, for payment hereunder and that the Trustee in its individual capacity
is not personally liable to the Certificateholder for any amounts payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement. By acceptance of this
Certificate, the Certificateholder agrees to disclosure of his, her or its name
and address to other Certificateholders under the conditions specified in the
Agreement.
No transfer of this Certificate or any interest herein to any employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or that is described in Section 4975(e)(1) of the
Code or to any person or entity purchasing on behalf of, or with assets of, such
an employee benefit plan (each, a "Plan") will be registered unless the
----
transferee, at its expense, delivers to the Originator and the Trustee an
opinion of counsel (satisfactory to the Originator and the Trustee) that the
purchase and holding of this Certificate by such Plan will not result in the
assets of the Trust being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not subject the
Trustee, the Originator, the Seller or the Servicer to any obligation or
liability in addition to those undertaken in the Agreement. Unless such opinion
is delivered, each person acquiring this Certificate will be deemed to represent
to the Trustee, the Originator, the Seller and the Servicer either (i) that such
person is neither a Plan, nor acting on behalf of a Plan, subject to ERISA or to
Section 4975 of the Code, or (ii) that the purchase and holding of this
Certificate by such Plan will not result in the assets of the Trust being deemed
to be Plan assets and subject to the prohibited transaction provisions of ERISA
and the Code and will not subject the Trustee, the Originator, the Seller or the
Servicer to any obligation or liability in addition to those undertaken in the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Minneapolis or St. ▇▇▇▇, Minnesota, accompanied by a written instrument of
transfer
C-1-3
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder thereof or his or her attorney duly authorized in writing, and
thereupon one or more new Certificates evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
[Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Trustee or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.]
The Originator, the Seller, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Originator, the Seller, the
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Originator, the Seller, the Servicer, the Trustee,
the Paying Agent, the Certificate Registrar nor any such agent shall be affected
by any notice to the contrary.
This Certificate shall be a "security" for purposes of Article 8, Section
102(a)(15)(B) of the Uniform Commercial Code and shall be governed by such
Article 8 as in effect in the state of Minnesota from time to time.
C-1-4
IN WITNESS WHEREOF, Conseco Finance Home Equity Loan Trust 2000-F has
caused this Certificate to be duly executed by the manual signature of a duly
authorized officer of the Trustee.
Dated:______________________ CONSECO FINANCE HOME EQUITY
LOAN TRUST 2000-F
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
By:________________________________
Authorized Officer
C-1-5
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _____________________ the within Certificate for Home Equity Loans, Series
2000-F, and does hereby irrevocably constitute and appoint____________________
Attorney to transfer the said certificate on the Certificate Register maintained
by the Trustee, with full power of substitution in the premises.
Dated:_______________________ By: ________________________________
Signature
C-1-6
EXHIBIT C-2
-----------
FORM OF CLASS BV-[1][2] CERTIFICATE
-----------------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS AV-1,
CLASS MV-1[, AND] CLASS MV-2 [AND CLASS BV-1] CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
Class BV-[1][2] No.
(Subordinate)
Cut-off Date: Pass-Through Rate: Variable
as defined in the Pooling and Rate equal to Class BV-[1][2]
Servicing Agreement dated Pass-Through Rate
October 1, 2000
First Payment Date: Denomination: $____
December 15, 2000
Servicer: Aggregate Denomination of
Conseco Finance Corp. All Class BV-[1][2] Certificates:
$_____
Final Scheduled Payment Date:
October 15, 2031 (or if such day is not a
Business Day, then the next succeeding
Business Day)
CUSIP:_____
CERTIFICATES FOR HOME EQUITY LOANS
SERIES 2000-F, CLASS BV-[1][2] (SUBORDINATE)
--------------------------------------------
BY ACCEPTANCE OF THIS CERTIFICATE, THE PURCHASER OF THE CERTIFICATE OR ANY
INTEREST HEREIN BY, ON BEHALF OF OR WITH PLAN ASSETS OF ANY EMPLOYEE BENEFIT
PLAN THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR THAT IS DESCRIBED IN SECTION 4975(e)(1) OF THE CODE (EACH,
A "PLAN") ACKNOWLEDGES THAT EITHER THE CERTIFICATEHOLDER HAS DELIVERED TO THE
----
ORIGINATOR AND THE TRUSTEE AT ITS OWN EXPENSE AN OPINION OF
C-2-1
COUNSEL (SATISFACTORY TO THE ORIGINATOR AND THE TRUSTEE) THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE BY SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE
TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE
ORIGINATOR, THE SELLER OR THE SERVICER TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, OR, IF NO SUCH OPINION IS
DELIVERED, IS DEEMED TO REPRESENT TO THE TRUSTEE, THE ORIGINATOR, THE SELLER AND
THE SERVICER EITHER (I) THAT THE PERSON ACQUIRING THE CERTIFICATE IS NEITHER A
PLAN, NOR ACTING ON BEHALF OF A PLAN, SUBJECT TO ERISA OR TO SECTION 4975 OF THE
CODE, OR (II) THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY SUCH PLAN
WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE PLAN ASSETS AND
SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE AND WILL
NOT SUBJECT THE TRUSTEE, THE ORIGINATOR, THE SELLER OR THE SERVICER TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
CONSECO FINANCE CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET FORTH
IN THE AGREEMENT.
This certifies that ____________________ is the registered owner of the
undivided Percentage Interest represented by the original principal amount set
forth above in the Certificates for Home Equity Loans, Series 2000-F, Class BV-
[1][2], issued by Conseco Finance Home Equity Loan Trust 2000-F (the "Trust"),
which includes among its assets a pool of closed-end home equity loans (the
"Loans") (including, without limitation, all mortgages, deeds of trust and
security deeds relating to such Loans and any and all rights to receive payments
due on the Loans after the applicable Cut-off Date). The Trust has been created
pursuant to a Pooling and Servicing Agreement (the "Agreement"), dated as of
October 1, 2000, among Conseco Finance Corp., as Originator and Servicer (the
"Originator"), Conseco Finance Securitizations Corp., as Seller (the "Seller")
and U.S. Bank Trust National Association as Trustee of the Trust (the
"Trustee"). This Certificate is one of the Certificates described in the
Agreement and is issued pursuant and subject to the Agreement. By acceptance of
this Certificate the holder assents to and becomes bound by the Agreement. To
the extent not defined herein, all capitalized terms have the meanings assigned
to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing in December 2000, so long
as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class BV-[1][2] Certificates with an aggregate
Percentage Interest of at least 5% of the Class BV-[1][2] Certificates and so
desires, by wire transfer pursuant to instructions delivered to the Trustee at
least 10 days prior to such Payment Date) to the registered Certificateholder at
the address appearing on the Certificate Register as of the Business Day
immediately preceding such Payment Date, in an amount equal to the
Certificateholder's Percentage Interest of the Distribution Amount for the Class
BV-[1][2] Certificates for such Payment Date. Distributions of interest and
principal on the Class BV-
C-2-2
[1][2] Certificates will be made primarily from amounts available in respect of
the Loans. The final scheduled Payment Date of this Certificate is October 15,
2031 or the next succeeding Business Day if such October 15 is not a Business
Day.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account, to the extent
available for distribution to the Certificateholder as provided in the
Agreement, for payment hereunder and that the Trustee in its individual capacity
is not personally liable to the Certificateholder for any amounts payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement. By acceptance of this
Certificate, the Certificateholder agrees to disclosure of his, her or its name
and address to other Certificateholders under the conditions specified in the
Agreement.
No transfer of this Certificate or any interest herein to any employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or that is described in Section 4975(e)(1) of the
Code or to any person or entity purchasing on behalf of, or with assets of, such
an employee benefit plan (each, a "Plan") will be registered unless the
----
transferee, at its expense, delivers to the Originator and the Trustee an
opinion of counsel (satisfactory to the Originator and the Trustee) that the
purchase and holding of this Certificate by such Plan will not result in the
assets of the Trust being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not subject the
Trustee, the Originator, the Seller or the Servicer to any obligation or
liability in addition to those undertaken in the Agreement. Unless such opinion
is delivered, each person acquiring this Certificate will be deemed to represent
to the Trustee, the Originator, the Seller and the Servicer either (i) that such
person is neither a Plan, nor acting on behalf of a Plan, subject to ERISA or to
Section 4975 of the Code, or (ii) that the purchase and holding of this
Certificate by such Plan will not result in the assets of the Trust being deemed
to be Plan assets and subject to the prohibited transaction provisions of ERISA
and the Code and will not subject the Trustee, the Originator, the Seller or the
Servicer to any obligation or liability in addition to those undertaken in the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Minneapolis or St. ▇▇▇▇, Minnesota, accompanied by a written instrument of
transfer
C-2-3
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder thereof or his or her attorney duly authorized in writing, and
thereupon one or more new Certificates evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
[Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Trustee or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.]
The Originator, the Seller, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Originator, the Seller, the
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Originator, the Seller, the Servicer, the Trustee,
the Paying Agent, the Certificate Registrar nor any such agent shall be affected
by any notice to the contrary.
This Certificate shall be a "security" for purposes of Article 8, Section
102(a)(15)(B) of the Uniform Commercial Code and shall be governed by such
Article 8 as in effect in the state of Minnesota from time to time.
C-2-4
IN WITNESS WHEREOF, Conseco Finance Home Equity Loan Trust 2000-F has
caused this Certificate to be duly executed by the manual signature of a duly
authorized officer of the Trustee.
Dated:_________________________ CONSECO FINANCE HOME EQUITY
LOAN TRUST 2000-F
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
By:____________________________________
Authorized Officer
C-2-5
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________________ the within Certificate for Home Equity
Loans, Series 2000-F, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said certificate on the
Certificate Register maintained by the Trustee, with full power of substitution
in the premises.
Dated:_____________________________ By:_______________________________
Signature
C-2-6
EXHIBIT D
---------
FORM OF ASSIGNMENT
------------------
In accordance with the Pooling and Servicing Agreement (the "Agreement")
dated as of October 1, 2000, among Conseco Finance Securitizations Corp. (the
"Seller"), Conseco Finance Corp. (the "Originator") and U.S. Bank Trust National
Association as Trustee (the "Trustee"), the undersigned does hereby transfer,
assign, set over and otherwise convey, without recourse, to Conseco Finance Home
Equity Loan Trust 2000-F, 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 and each
Subsequent Transfer Instrument (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 Cut-off Date), (ii) all
rights of the Seller under the Transfer Agreement, (iii) 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 Loan, (iv) all rights the
Originator may have against the originating lender with respect to Loans
originated by a lender other than the Originator, (v) all rights under the
Errors and Omissions Protection Policy and the Fidelity Bond as such policy and
bond relate to the Loans, (vi) all rights under any title insurance policies, if
applicable, on any of the properties securing Loans, (vii) all documents
contained in the related Loan Files, (viii) amounts in the Certificate Account,
any Pre-Funding Account, and any Capitalized Interest Account (including all
proceeds of investments) 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
shall have the meanings given them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this ____ day of __________, 2000.
CONSECO FINANCE SECURITIZATIONS CORP.
By:_____________________________________
▇▇▇▇▇▇� �. ▇▇▇▇▇▇
Senior Vice President and Treasurer
D-1
EXHIBIT E-1
-----------
FORM OF CERTIFICATE OF OFFICER
------------------------------
CONSECO FINANCE CORP.
The undersigned certifies that he is a [title] of Conseco Finance Corp., a
Delaware corporation (the "Company"), and that as such he is duly authorized to
execute and deliver this certificate on behalf of the Company in connection with
the Pooling and Servicing Agreement dated as of October 1, 2000 (the "Pooling
and Servicing Agreement") among the Company, Conseco Finance Securitizations
Corp. and U.S. Bank Trust National Association as Trustee (all capitalized terms
used herein without definition having the respective meanings specified in the
Pooling and Servicing Agreement), and further certifies that:
(i) attached hereto as Exhibit I is a true and correct copy of the
Certificate of Incorporation of the Company, together with all amendments
thereto as in effect on the date thereof;
(ii) attached hereto as Exhibit II is a true and correct copy of the
Restated Bylaws of the Company, as amended, as in effect on the date
hereof;
(iii) the representations and warranties of the Company contained in
Sections 3.02, 3.04 and 3.05 of the Pooling and Servicing Agreement are
true and correct on and as of the date hereof;
(iv) no event with respect to the Company has occurred and is
continuing which would constitute an Event of Termination or an event that
with notice or lapse of time or both would become an Event of Termination
under the Pooling and Servicing Agreement;
(v) each of the agreements and conditions of the Company to be
performed on or before the date hereof pursuant to the Pooling and
Servicing Agreement and the Underwriting Agreement and related agreements
have been performed in all material respects;
(vi) attached hereto as Exhibit III are true and correct copies of
certain resolutions, duly adopted by the Board of Directors of the Company
on or prior to the date hereof, such resolutions (i) constitute the only
resolutions adopted by the Board of Directors or any committee thereof
relating to the subject matter thereof, (ii) have not been amended,
modified, annulled or revoked, and (iii) are in full force and effect; and
the instruments referred to in said resolutions were executed pursuant
thereto and in compliance therewith; and
(vii) each person who, as an officer of the Company, signed any of the
Pooling and Servicing Agreement, Underwriting Agreement or any other
document delivered prior hereto or on the date hereof in connection with
the transactions contemplated thereby was, at the respective times of such
signing and delivery, and is now duly elected
E-1-1
or appointed, qualified and acting as such officer, and the signatures of
such persons appearing on such documents are their genuine signatures.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ______ day of
_______________, 2000.
By:_______________________________
[Name]
[Title]
E-1-2
EXHIBIT E-2
-----------
FORM OF CERTIFICATE OF OFFICER
------------------------------
CONSECO FINANCE SECURITIZATIONS CORP.
The undersigned certifies that he is a [title] of Conseco Finance
Securitizations Corp., a Minnesota corporation (the "Company"), and that as such
he is duly authorized to execute and deliver this certificate on behalf of the
Company in connection with the Pooling and Servicing Agreement dated as of
October 1, 2000 (the "Pooling and Servicing Agreement") among Conseco Finance
Corp., the Company, and U.S. Bank Trust National Association as Trustee (all
capitalized terms used herein without definition having the respective meanings
specified in the Pooling and Servicing Agreement), and further certifies that:
(i) attached hereto as Exhibit I is a true and correct copy of the
Articles of Incorporation of the Company, together with all amendments
thereto as in effect on the date hereof;
(ii) attached hereto as Exhibit II is a true and correct copy of the
Bylaws of the Company, as amended, as in effect on the date hereof;
(iii) the representations and warranties of the Company contained in
Section 3.01 of the Pooling and Servicing Agreement are true and correct on
and as of the date hereof and, to the best of his knowledge, the
representations and warranties of the Company contained in Section 3.03 of
the Pooling and Servicing Agreement are true and correct on and as of the
date hereof;
(iv) no event with respect to the Company has occurred and is
continuing which would constitute an Event of Termination or an event that
with notice or lapse of time or both would become an Event of Termination
under the Pooling and Servicing Agreement;
(v) each of the agreements and conditions of the Company to be
performed on or before the date hereof pursuant to the Pooling and
Servicing Agreement and the Underwriting Agreement and related agreements
have been performed in all material respects.
(vi) attached hereto as Exhibit III are true and correct copies of
certain resolutions, duly adopted by the Board of Directors of the Company
on or prior to the date hereof, such resolutions (i) constitute the only
resolutions adopted by the Board of Directors or any committee thereof
relating to the subject matter thereof, (ii) have not been amended,
modified, annulled or revoked, and (iii) are in full force and effect; and
the instruments referred to in said resolutions were executed pursuant
thereto and in compliance therewith; and
E-2-1
(vii) each person who, as an officer of the Company, signed any of
the Pooling and Servicing Agreement, Underwriting Agreement or any other
document delivered prior hereto or on the date hereof in connection with
the transactions contemplated thereby was, at the respective times of such
signing and delivery, and is now duly elected or appointed, qualified and
acting as such officer, and the signatures of such persons appearing on
such documents are their genuine signatures.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ______ day of
_______________, 2000.
By:_______________________________
[Name]
[Title]
E-2-2
EXHIBIT F
---------
FORM OF OPINION OF COUNSEL
--------------------------
The opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Professional Association shall be to the
effect that (capitalized terms have the meanings set forth in the Pooling and
Servicing Agreement):
1. The Originator is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, with corporate power
to execute, deliver and perform its obligations under the Pooling and Servicing
Agreement, the Transfer Agreement and the Underwriting Agreement (collectively,
the "Transaction Documents"). The Seller is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Minnesota,
with corporate power to execute, deliver and perform in its obligations under
the Transaction Documents.
2. The Transaction Documents have been duly authorized by all requisite
corporate action, duly executed and delivered by the Originator and the Seller,
and constitute the valid and binding obligations of the Originator and the
Seller enforceable in accordance with their terms. The Certificates have been
duly authorized by all requisite corporate action and, when duly and validly
executed by the Trustee in accordance with the Pooling and Servicing Agreement,
will be validly issued and outstanding and entitled to the benefits of the
Pooling and Servicing Agreement.
3. No consent, approval, authorization or order of any state or federal
court or governmental agency or body is required to be obtained by the
Originator or the Seller for the consummation of the transactions contemplated
by the Transaction Documents, except such as may be required under blue sky laws
under any jurisdiction in connection with the offering of the Certificates by
the Underwriters pursuant to the Underwriting Agreement.
4. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as now in effect, and the Trust is not
required to be registered as an investment company under the Investment Company
Act of 1940.
5. Neither the transfer of the Loans by the Originator to the Seller, nor
the assignment of the Originator's lien on the related real estate which is the
subject of a home equity loan, nor the issuance or sale of the Certificates and
the Class C Certificate, nor the execution and delivery of the Transaction
Documents, nor the consummation of any other of the transactions contemplated in
the Transaction Documents nor the fulfillment of the terms of the Certificates,
the Class C Certificate or the Transaction Documents by the Originator will
conflict with, or result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the Certificate of
Incorporation or Bylaws of the Originator or of any indenture or other agreement
or instrument known to us to which the Originator is a party or by which it is
bound, or result in a violation of, or contravene the terms of any statute,
order or regulation, applicable to the Originator, of any court, regulatory
body, administrative agency or governmental body having jurisdiction over it.
F-1
6. Neither the transfer of the Loans by the Seller to the Trustee acting
on behalf of the Trust, nor the assignment of the Seller's lien on the related
real estate which is the subject of a home equity loan, nor the issuance or sale
of the Certificates and the Class C Certificate, nor the execution and delivery
of the Transaction Documents, nor the consummation of any other of the
transactions contemplated in the Transaction Documents, nor the fulfillment of
the terms of the Certificates, the Class C Certificate or the Transaction
Documents by the Seller will conflict with, or result in a breach, violation or
acceleration of, or constitute a default under, any term or provision of the
Articles of Incorporation or Bylaws of the Seller or of any indenture or other
agreement or instrument known to us to which the Seller is a party or by which
it is bound, or result in a violation of, or contravene the terms of any
statute, order or regulation, applicable to the Seller, of any court, regulatory
body, administrative agency or governmental body having jurisdiction over it.
7. There are no actions or proceedings pending, nor to the best of our
knowledge, are there any investigations pending or overtly threatened against
the Originator or the Seller before any court, administrative agency or other
tribunal (A) asserting the invalidity of the Transaction Documents, the
Certificates, the Class C Certificate, the hazard or flood insurance policies
applicable to any Loans or the Errors and Omissions Protection Policy, (B)
seeking to prevent the issuance of the Certificates or the Class C Certificate
or the consummation of any of the transactions contemplated by the Transaction
Documents, (C) which is likely materially and adversely to affect the
performance by the Originator or the Seller of its obligations under, or the
validity or enforceability of, the Transaction Documents, the Certificates or
the Class C Certificate, or (D) seeking adversely to affect the federal income
tax attributes of the Certificates or the Class C Certificate described in the
Prospectus and the Prospectus Supplement under the heading "Federal Income Tax
Consequences."
8. The transfer of the Loans to the Trust in accordance with Section 2.01
of the Pooling and Servicing Agreement would not be avoidable as a preferential
transfer under Section 547 of the United States Bankruptcy Code (11 U.S.C. (S)
547), as in effect on the date hereof, in the event that the Originator became a
debtor under the United States Bankruptcy Code.
9. Pursuant to the Transfer Agreement the Originator has transferred to
the Seller all of the Originator's right, title and interest in the Loans, free
and clear of any and all other assignments, encumbrances, options, rights,
claims, liens or security interests (except tax or possessory liens) that may
affect the right of the Seller in and to such Loans, and has delivered the Loan
Files to the Trustee (as the Seller's designee) or its custodian. No filing or
other action, other than the filing of a financing statement on Form UCC-1 with
the Secretary of State of the State of Minnesota identifying the Loans as
collateral and naming the Originator as debtor and the Seller as secured party,
and the filing of continuation statements as required by the Transfer Agreement,
is necessary to perfect as against third parties the assignment of the Loans by
the Originator to the Seller. We have separately provided you with our opinion
concerning whether such assignment could be recharacterized as a pledge rather
than a sale in the event the Originator became a debtor under the United States
Bankruptcy Code. However, in the event such assignment were recharacterized as a
pledge securing a loan from the Seller to the Originator, it is our opinion that
the Seller would be deemed to have a valid and perfected security interest in
the Loans and the proceeds thereof, which security interest would be prior to
any other security interest that may be perfected under the Uniform Commercial
Code as in
F-2
effect in the State of Minnesota and over any "lien creditor" (as defined in
Minn. Stat. (S)336.9-301(3)) who becomes such after the Closing Date, except
that a subsequent purchaser of any Loan who gives new value and takes possession
thereof in the ordinary course of his business would have priority over the
Seller's security interest in such Loan, if such purchaser acts without
knowledge that such Loan was subject to a security interest. We have assumed for
the purposes of this opinion that during the term of the Pooling and Servicing
Agreement the Trustee, or its custodian, shall maintain possession of the Loan
Files for the purpose of perfecting the assignment to the Seller of the Loans.
We express no opinion with respect to the enforceability of any individual Loan
or the existence of any claims, rights or other matters in favor of any Obligor.
10. Pursuant to the Pooling and Servicing Agreement the Seller has
transferred to the Trustee acting on behalf of the Trust all of the Seller's
right, title and interest in the Loans, free and clear of any and all other
assignments, encumbrances, options, rights, claims, liens or security interests
(except tax or possessory liens) that may affect the right of the Trustee in and
to such Loans, and has delivered the Loan Files to the Trustee or its custodian.
No filing or other action, other than the filing of a financing statement on
Form UCC-1 with the Secretary of State of the State of Minnesota identifying the
Loans as collateral and naming the Seller as debtor and the Trustee as secured
party, and the filing of continuation statements as required by Section 4.01 of
the Pooling and Servicing Agreement, is necessary to perfect as against third
parties the assignment of the Loans by the Seller to the Trustee. We have
separately provided you with our opinion concerning whether such assignment
could be recharacterized as a pledge rather than a sale in the event the Seller
became a debtor under the United States Bankruptcy Code. However, in the event
such assignment were recharacterized as a pledge securing a loan from the
Certificateholders to the Seller, it is our opinion that the Trustee would be
deemed to have a valid and perfected security interest in the Loans and the
proceeds thereof, which security interest would be prior to any other security
interest that may be perfected under the Uniform Commercial Code as in effect in
the State of Minnesota and over any "lien creditor" (as defined in Minn. Stat.
(S)336.9-301(3)) who becomes such after the Closing Date, except that a
subsequent purchaser of any Loan who gives new value and takes possession
thereof in the ordinary course of his business would have priority over the
Trustee's security interest in such Loan, if such purchaser acts without
knowledge that such Loan was subject to a security interest. We have assumed for
the purposes of this opinion that during the term of the Pooling and Servicing
Agreement the Trustee, or its custodian, shall maintain possession of the Loan
Files for the purpose of perfecting the assignment to the Trustee of the Loans.
We express no opinion with respect to the enforceability of any individual Loan
or the existence of any claims, rights or other matters in favor of any Obligor.
11. In reliance upon certain representations and warranties set forth in
the Pooling and Servicing Agreement and assuming that the Originator and the
Trustee comply with the requirements of the Pooling and Servicing Agreement,
including the filing on behalf of the REMIC of a proper election to be taxed as
a REMIC, as of the date hereof the REMIC created pursuant to the Pooling and
Servicing Agreement will qualify as a REMIC. Further, the Certificates will
evidence ownership of the "regular interests" in the REMIC will evidence
ownership of the single class of "residual Class C Certificate interest" in the
REMIC. For Minnesota income and franchise tax purposes, and subject to the
foregoing assumptions, and the provisions of Minnesota law as of the date
hereof, the Trust (excluding the Capitalized Interest
F-3
Account and the Pre-Funding Account) will not be subject to tax and the income
of the Trust will be taxable to the holders of interests therein, all in
accordance with the provisions of the Code concerning REMICs. Moreover,
ownership of Certificates will not be a factor in determining whether such owner
is subject to Minnesota income and franchise taxes. Therefore, if the owner of
Certificates is not otherwise subject to Minnesota income or franchise taxes in
the State of Minnesota, such owner will not become subject to such Minnesota
taxes solely by virtue of owning Certificates.
12. The transfer of the Loans and the proceeds thereof by the Seller to
the Trustee on the date hereof pursuant to the Pooling and Servicing Agreement
would not be avoidable as a fraudulent transfer under the Uniform Fraudulent
Transfer Act as in effect in Minnesota on the date hereof (Minn. Stat. (S)(S)
513.41 through 513.51), nor, should the Seller become a debtor under the United
States Bankruptcy Code, as a fraudulent transfer under Section 548 of the United
States Bankruptcy Code (11 U.S.C. (S) 548) as in effect on the date hereof.
F-4
EXHIBIT G
---------
FORM OF TRUSTEE'S ACKNOWLEDGMENT
--------------------------------
U.S. Bank Trust National Association, a national banking association
organized under the laws of the United States, acting as trustee (the "Trustee")
of Conseco Finance Home Equity Loan Trust 2000-F (the "Trust") created pursuant
to the Pooling and Servicing Agreement dated as of October 1, 2000 among Conseco
Finance Corp. (the "Originator"), Conseco Finance Securitizations Corp. (the
"Seller") and the Trustee (the "Agreement") (all capitalized terms used herein
without definition having the respective meanings specified in the Agreement)
acknowledges, pursuant to Section 2.04 of the Agreement, that the Trustee has
received the following: (i) all right, title and interest in the home equity
loans identified in the List of Loans attached to the [Agreement] [Subsequent
Transfer Instrument of even date herewith] (the "Loans"), including, without
limitation, all related mortgages and deeds of trust and any and all rights to
receive payments on or with respect to the Loans (due after the 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 owner of such Loan, (iii)
all rights of the Seller under the Transfer Agreement, (iv) all rights the
Originator may have against the originating lender with respect to Loans
originated by a lender other than the Originator, (v) all rights under the
Errors and Omissions Protection Policy and the Fidelity Bond as such policy and
bond relate to the Loans, (vi) all rights under any title insurance policies, if
applicable, on any of the properties securing Loans, (vii) all documents
contained in the related Loan Files, [(viii) amounts in the Certificate Account,
the Capitalized Interest Account and the Pre-Funding Account (including all
proceeds of investments of funds in the Certificate Account), and (ix) [all
rights of the Seller under the Subsequent Transfer Agreement dated _________,
between the Originator and the Seller] [and] [(xi)] all proceeds and products of
the foregoing; and declares that, directly or through a Custodian, it will hold
all Loan Files that have been delivered in trust, upon the trusts set forth in
the Agreement for the use and benefit of all Certificateholders and the holders
of the Class C Certificate.
[From Trustee or Custodian as applicable.] The Trustee acknowledges that it
has conducted a review of the Loan Files and hereby confirms that, except as
noted on the attached exception list, each Loan File contains (a) an original
promissory note duly endorsed in blank or in the name of the Trustee, (b) an
original or a copy of the mortgage, deed of trust or similar evidence of a lien
on the related improved real estate securing the Loan, (c) an assignment of the
Loan, and the mortgage, deed of trust or similar evidence of a lien, from the
originator (if other than the Originator) to the Originator, (d) an assignment
of the mortgage, deed of trust or similar evidence of a lien, to the Trustee or
in blank, and (e) any extension, modification or waiver agreement(s). The
[Trustee] [Custodian] has not otherwise reviewed the Loans and Loan Files for
compliance with the terms of the Agreement.
[If Acknowledgment from Custodian: Undefined capitalized terms used in this
Acknowledgment have the meanings given them in the Pooling and Servicing
Agreement.]
G-1
IN WITNESS WHEREOF, ______________________________ as Trustee has caused
this acknowledgment to be executed by its duly authorized officer and its
corporate seal affixed hereto as of this ___ day of _________________________,
2000.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:___________________________________
[Name]
[Title]
G-2
EXHIBIT H
---------
FORM OF CERTIFICATE OF SERVICING OFFICER
----------------------------------------
CONSECO FINANCE CORP.
The undersigned certifies that he is a [title] of Conseco Finance Corp., a
-----
Delaware corporation (the "Company"), and that as such he is duly authorized to
execute and deliver this certificate on behalf of the Company pursuant to
Section 6.02 of the Pooling and Servicing Agreement (the "Agreement") dated as
of October 1, 2000 among the Company, Conseco Finance Securitizations Corp. and
U.S. Bank Trust National Association, as Trustee of Conseco Finance Home Equity
Loan Trust 2000-F (all capitalized terms used herein without definition having
the respective meanings specified in the Agreement), and further certifies that:
1. The Monthly Report for the period from _______________ to
_______________ attached to this certificate is complete and accurate in
accordance with the requirements of Sections 6.01 and 6.02 of the Agreement; and
2. As of the date hereof, no Event of Termination or event that with
notice or lapse of time or both would become an Event of Termination has
occurred.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ______ day of
_____________________, 2000.
CONSECO FINANCE CORP.
By:__________________________________
[Name]
[Title]
H-1
EXHIBIT I
---------
FORM OF CLASS C CERTIFICATE
---------------------------
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS M CERTIFICATES AND THE CLASS B CERTIFICATES AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE. THIS CERTIFICATE MAY ONLY BE TRANSFERRED TO A PERMITTED TRANSFEREE
(AS DEFINED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN); ANY SUCH
TRANSFER MUST ALSO SATISFY THE OTHER REQUIREMENTS OF SECTION 9.02 OF SUCH
POOLING AND SERVICING AGREEMENT.
BY ACCEPTANCE OF THIS CERTIFICATE, THE PURCHASER OF THE CERTIFICATE OR ANY
INTEREST HEREIN BY, ON BEHALF OF OR WITH PLAN ASSETS OF ANY EMPLOYEE BENEFIT
PLAN THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR THAT IS DESCRIBED IN SECTION 4975(e)(1) OF THE CODE (EACH,
A "PLAN") ACKNOWLEDGES THAT EITHER THE CERTIFICATEHOLDER HAS DELIVERED TO THE
----
ORIGINATOR AND THE TRUSTEE AT ITS OWN EXPENSE AN OPINION OF COUNSEL
(SATISFACTORY TO THE ORIGINATOR AND THE TRUSTEE) THAT THE PURCHASE AND HOLDING
OF THIS CERTIFICATE BY SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE
ORIGINATOR, THE SELLER OR THE SERVICER TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, OR, IF NO SUCH OPINION IS
DELIVERED, IS DEEMED TO REPRESENT TO THE TRUSTEE, THE ORIGINATOR, THE SELLER AND
THE SERVICER EITHER (I) THAT THE PERSON ACQUIRING THE CERTIFICATE IS NEITHER A
PLAN, NOR ACTING ON BEHALF OF A PLAN, SUBJECT TO ERISA OR TO SECTION 4975 OF THE
CODE, OR (II) THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY SUCH PLAN
WILL NOT RESULT IN THE ASSETS OF THE TRUST
I-1
BEING DEEMED TO BE PLAN ASSETS AND SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE
ORIGINATOR, THE SELLER OR THE SERVICER TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
Class C No.
(Subordinate)
Cut-off Date: Percentage Interest:
As defined in the Pooling
And Servicing Agreement
dated October 1, 2000
First Payment Date:
December 15, 2000
CERTIFICATE FOR HOME EQUITY LOANS, SERIES 2000-F
Original Aggregate Certificate Principal Balance of the Trust: $910,000,000
This certifies that Green Tree Finance Corp.-Two is the registered owner of
the Residual Interest represented by this Certificate, and entitled to certain
distributions out of Conseco Finance Home Equity Loan Trust 2000-F (the
"Trust"), which includes among its assets a pool of closed-end home equity loans
(the "Loans") (including, without limitation, all mortgages, deeds of trust and
security deeds relating to such Loans and any and all rights to receive payments
due on the Loans after the applicable Cut-off Date). The Trust has been created
pursuant to a Pooling and Servicing Agreement (the "Agreement"), dated as of
October 1, 2000, among Conseco Finance Corp., as Originator and Servicer (the
"Originator"), Conseco Finance Securitizations Corp., as Seller (the "Seller")
and U.S. Bank Trust National Association, as Trustee of the Trust (the
"Trustee"). This Class C Certificate is described in the Agreement and is issued
pursuant and subject to the Agreement. By acceptance of this Class C Certificate
the holder assents to and becomes bound by the Agreement. To the extent not
defined herein, all capitalized terms have the meanings assigned to such terms
in the Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing in December 2000, so long
as the Agreement has not been terminated, by check to the registered Class C
Certificateholder at the address appearing on the Certificate Register as of the
Business Day immediately preceding such Payment Date in an amount equal to the
Class C Distribution Amount. The final scheduled Payment Date of this Class C
Certificate is October 15, 2031 or the next succeeding Business Day if such
October 15 is not a Business Day.
The Class C Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds in the Certificate Account to the
extent available for distribution to the Class C Certificateholder as provided
in the Agreement for payment hereunder and that the
I-2
Trustee in its individual capacity is not personally liable to the Class C
Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the Class C
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
No transfer of this Certificate or any interest herein to any employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or that is described in Section 4975(e)(1) of the
Code or to any person or entity purchasing on behalf of, or with assets of, such
an employee benefit plan (each, a "Plan") will be registered unless the
----
transferee, at its expense, delivers to the Originator and the Trustee an
opinion of counsel (satisfactory to the Originator and the Trustee) that the
purchase and holding of this Certificate by such Plan will not result in the
assets of the Trust being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not subject the
Trustee, the Originator, the Seller or the Servicer to any obligation or
liability in addition to those undertaken in the Agreement. Unless such opinion
is delivered, each person acquiring this Certificate will be deemed to represent
to the Trustee, the Originator, the Seller and the Servicer either (i) that such
person is neither a Plan, nor acting on behalf of a Plan, subject to ERISA or to
Section 4975 of the Code, or (ii) that the purchase and holding of this
Certificate by such Plan will not result in the assets of the Trust being deemed
to be Plan assets and subject to the prohibited transaction provisions of ERISA
and the Code and will not subject the Trustee, the Originator, the Seller or the
Servicer to any obligation or liability in addition to those undertaken in the
Agreement.
This Class C Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Class C Certificateholders
free of charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Class C Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this Class C
Certificate for registration of transfer at the office or agency maintained by
the Trustee in Minneapolis or St. ▇▇▇▇, Minnesota, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder thereof or his or her attorney duly
authorized in writing, and thereupon a new Class C Certificate evidencing the
same Class C Certificate will be issued to the designated transferee or
transferees.
The Originator, the Seller, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Originator, the Seller, the
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the person in whose name this Class C Certificate is registered as the owner
hereof for all purposes, and neither the Originator, the Seller, the Servicer,
the Trustee, the Paying Agent, the Certificate Registrar nor any such agent
shall be affected by any notice to the contrary.
I-3
The holder of this Class C Certificate, by acceptance hereof, agrees that,
in accordance with the requirements of Section 860D(b)(1) of the Code, the
federal tax return of the Trust for its first taxable year shall provide that
the Trust elects to be treated as a "real estate mortgage investment conduit" (a
"REMIC") under the Code for such taxable year and all subsequent taxable years.
The Certificates shall be "regular interests" in the REMIC and the Class C
Certificate shall be the "residual interest" in the REMIC. In addition, the
holder of this Class C Certificate, by acceptance hereof, (i) agrees to file tax
returns consistent with and in accordance with any elections, decisions or other
reports made or filed with regard to federal, state or local taxes on behalf of
the Trust, and (ii) agrees to cooperate with the Originator in connection with
examinations of the Trust's affairs by tax authorities, including administrative
and judicial proceedings, and (iii) makes the additional agreements,
designations and appointments, and undertakes the responsibilities, set forth in
Section 6.06 of the Agreement.
This Certificate shall be a "security" for purposes of Article 8, Section
102(a)(15)(B) of the Uniform Commercial Code and shall be governed by such
Article 8 as in effect in the state of Minnesota from time to time.
I-4
IN WITNESS WHEREOF, Conseco Finance Home Equity Loan Trust 2000-F has
caused this Certificate to be duly executed by the manual signature of a duly
authorized officer of the Trustee.
Dated:___________________ CONSECO FINANCE HOME EQUITY LOAN TRUST 2000-F
By: U.S. BANK TRUST NATIONAL ASSOCIATION
By:___________________________________________
Authorized Officer
I-5
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________________ the within Certificate for Home Equity
Loans, Series 2000-F, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said certificate on the
Certificate Register maintained by the Trustee, with full power of substitution
in the premises.
Dated:_____________________________ By:__________________________________
Signature
I-6
EXHIBIT J-1
-----------
FORM OF CERTIFICATE REGARDING REPURCHASED LOANS
-----------------------------------------------
CONSECO FINANCE CORP.
The undersigned certifies that [s]he is a [title] of Conseco Finance Corp.,
-----
a Delaware corporation (the "Originator"), and that as such [s]he is duly
authorized to execute and deliver this certificate on behalf of the Originator
pursuant to Sections 3.06 and 8.05 of the Pooling and Servicing Agreement (the
"Agreement") dated as of October 1, 2000 among the Originator, Conseco Finance
Securitizations Corp. and U.S. Bank Trust National Association, as Trustee of
Conseco Finance Home Equity Loan Trust 2000-F (all capitalized terms used herein
without definition having the respective meanings specified in the Agreement),
and further certifies that:
1. The Loans on the attached schedule are to be repurchased by the
Originator on the date hereof pursuant to Section 3.06 of the Agreement.
2. Upon deposit of the Repurchase Price for such Loans, such Loans may,
pursuant to Section 8.05 of the Agreement, be assigned by the Trustee to the
Originator.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ______ day of
___________________, ____.
CONSECO FINANCE CORP.
By:__________________________________
[Name]
[Title]
J-1-1
EXHIBIT J-2
-----------
FORM OF CERTIFICATE REGARDING REPURCHASED LOANS
-----------------------------------------------
The undersigned certifies that [s]he is a [title] of Conseco Finance Corp.,
-----
a Delaware corporation (the "Originator"), and that as such [s]he is duly
authorized to execute and deliver this certificate on behalf of the Originator
pursuant to Sections 3.06(b) and 8.05 of the Pooling and Servicing Agreement
(the "Agreement") dated as of October 1, 2000 among the Originator, Conseco
Finance Securitizations Corp. and U.S. Bank Trust National Association, as
Trustee of Conseco Finance Home Equity Loan Trust 2000-F (all capitalized terms
used herein without definition having the respective meanings specified in the
Agreement), and further certifies that:
1. The Loan and Loan File for each such Eligible Substitute Loan have
been delivered to [the Trustee] [the Custodian].
2. The Loans on the attached schedule are to be substituted on the date
hereof pursuant to Section 3.06(b) of the Agreement and each such Loan is an
Eligible Substitute Loan [description, as to each Loan, as to how it satisfies
the definition of "Eligible Substitute Loan"].
3. The UCC-1 financing statements in respect of the Loans to be
substituted, in the form required by Section 3.05 (b)(iii) of the Agreement,
have been filed with the appropriate offices.
4. The requirements of Section 3.06(b) of the Agreement have been met
with respect to each such Eligible Substitute Loan.
[5. There has been deposited in the Certificate Account the amounts listed
on the schedule attached hereto as the amount by which the Scheduled Principal
Balance of each Replaced Loan exceeds the Scheduled Principal Balance of each
Loan being substituted therefor.]
IN WITNESS WHEREOF, I have affixed hereunto my signature this ______ day of
_____________________, ____.
CONSECO FINANCE CORP.
By: _______________________________
[Name]
[Title]
J-2-1
EXHIBIT J-3
-----------
FORM OF CERTIFICATE REGARDING SUBSTITUTION FOR PREPAID LOANS
------------------------------------------------------------
CONSECO FINANCE SECURITIZATIONS CORP.
The undersigned certifies that [s]he is a [title] of Conseco Finance
-----
Securitizations Corp., a Minnesota corporation (the "Seller"), and that as such
[s]he is duly authorized to execute and deliver this certificate on behalf of
the Seller pursuant to Section 2.06 of the Pooling and Servicing Agreement (the
"Agreement") dated as of October 1, 2000 among the Seller, Conseco Finance Corp.
and U.S. Bank Trust National Association, as Trustee of Conseco Finance Home
Equity Loan Trust 2000-F (all capitalized terms used herein without definition
having the respective meanings specified in the Agreement), and further
certifies that:
1. The Loan and Loan File for each such Eligible Substitute Loan have
been delivered to [the Trustee] [the Custodian].
2. The Loans on the attached schedule are to be substituted on the date
hereof pursuant to Section 2.06 of the Agreement and each such Loan is an
Eligible Substitute Loan [description, as to each Loan, as to how it satisfies
the definition of "Eligible Substitute Loan"].
3. The UCC-1 financing statements in respect of the Loans to be
substituted, in the form required by Section 2.06(iii) of the Agreement, have
been filed with the appropriate offices.
4. The requirements of Section 2.06 of the Agreement have been met with
respect to each such Eligible Substitute Loan.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ______ day of
_______________, 2000.
CONSECO FINANCE CORP.
By: _______________________________
[Name]
[Title]
J-3-1
EXHIBIT K
---------
FORM OF REPRESENTATION LETTER
-----------------------------
U.S. Bank Trust National Association
▇▇� ▇▇▇▇ ▇▇▇▇� ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇� ▇▇▇▇�
Conseco Finance Corp.
1100 Landmark Towers
▇▇� ▇▇. ▇▇▇▇� ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇� ▇▇▇▇�-1639
Re: Certificate for Home Equity Loans, Series 2000-F, Class C
The undersigned purchaser (the "Purchaser") understands that the purchase
of the above-referenced certificate (the "Certificate") may be made only by
institutions which are "Accredited Investors" under Regulation D, as promulgated
under the Securities Act of 1933, as amended (the "1933 Act"), which includes
banks, savings and loan associations, registered brokers and dealers, insurance
companies, investment companies, and organizations described in Section
501(c)(3) of the Internal Revenue Code, corporations, business trusts and
partnerships, not formed for the specific purpose of acquiring the Certificate
offered, with total assets in excess of $5,000,000. The undersigned represents
on behalf of the Purchaser that the Purchaser is an "Accredited Investor" within
the meaning of such definition. The Purchaser is urged to review carefully the
responses, representations and warranties it is making herein.
Representations and Warranties
------------------------------
The Purchaser makes the following representations and warranties in order
to permit the Trustee, Conseco Finance Corp., and ______________________________
to determine its suitability as a purchaser of Certificate and to determine that
the exemption from registration relied upon by Conseco Finance Corp. under
Section 4(2) of the 1933 Act is available to it.
1. The Purchaser understands that the Certificate have not been and will
not be registered under the 1933 Act and may be resold (which resale is not
currently contemplated) only if registered pursuant to the provisions of the
1933 Act or if an exemption from registration is available, that Conseco Finance
Corp. is not required to register the Certificate and that any transfer must
comply with Section 9.02 of the Pooling and Servicing Agreement relating to the
Certificate.
2. The Purchaser will comply with all applicable federal and state
securities laws in connection with any subsequent resale of the Certificate.
3. The Purchaser is a sophisticated institutional investor and has
knowledge and experience in financial and business matters and is capable of
evaluating the merits and risks of its investment in the Certificate and is able
to bear the economic risk of such investment. The Purchaser has reviewed the
Prospectus Supplement dated October 20, 2000, to the Prospectus
K-1
dated October 20, 2000 (the "Prospectus") with respect to the Certificate, and
has been given such information concerning the Certificate, the underlying home
equity loans and Conseco Finance Corp. as it has requested.
4. The Purchaser is acquiring the Certificate as principal for its own
account (or for the account of one or more other institutional investors for
which it is acting as duly authorized fiduciary or agent) for the purpose of
investment and not with a view to or for sale in connection with any
distribution thereof, subject nevertheless to any requirement of law that the
disposition of the Purchaser's property shall at all times be and remain within
its control.
5. The Purchaser either (check one box):
is not, and is not acting on behalf of or with assets
of, an employee benefit plan that is subject to the
Employee Retirement Income Security Act of 1974, as
amended or that is described in Section 4975(e)(1) of
the Internal Revenue Code of 1986, as amended, or
has provided the Trustee and Servicer with the opinion
of counsel described in Section 9.02(b)(2) of the
Pooling and Servicing Agreement, or
acknowledges that it is deemed to make the
representation set forth in Section 9.02(b)(2) of the
Pooling and Servicing Agreement.
6. The Purchaser understands that such Certificate will bear a legend
substantially as set forth in the form of Certificate included in the Pooling
and Servicing Agreement.
7. The Purchaser, as holder of the Class C Certificate, acknowledges (i)
it may incur tax liabilities in excess of any cash flows generated by the
interest and (ii) it intends to pay the taxes associated with holding the Class
C Certificate as they become due.
8. The Purchaser agrees that it will obtain from any purchaser of the
Certificate from it the same representations, warranties and agreements
contained in the foregoing paragraphs 1 through 7 and in this paragraph 8. The
representations and warranties contained herein shall be binding upon the heirs,
executors, administrators and other successors of the undersigned. If there is
more than one signatory hereto, the obligations, representations, warranties and
agreements of the undersigned are made jointly and severally.
K-2
Executed at _________________, ______________, this ______ day of
____________.
Purchaser's Name (Print)
By: ________________________________
Signature
Its:________________________________
Address of Purchaser
Purchaser's Taxpayer
Identification Number
K-3
EXHIBIT L-1
-----------
LIST OF INITIAL AND ADDITIONAL ADJUSTABLE RATE LOANS
Attached are the first and last pages of the Initial Adjustable Rate Loans
and Additional Adjustable Rate Loans.
Complete lists of loans are in the possession of the Trustee.
L-1-1
EXHIBIT L-2
-----------
LIST OF INITIAL FIXED RATE GROUP I LOANS
Attached are the first and last pages of the Initial Fixed Rate Group I Loans.
Complete lists of loans are in the possession of the Trustee.
L-2-1
ADDITIONAL FIXED RATE GROUP I LOANS
None.
L-2-2
EXHIBIT L-3
-----------
LIST OF INITIAL AND ADDITIONAL FIXED RATE GROUP II LOANS
Attached are the first and last pages of the Initial Fixed Rate Group II Loans
and Additional Fixed Rate Group II Loans.
Complete lists of loans are in the possession of the Trustee.
L-3-1
EXHIBIT M
---------
FORM OF MONTHLY REPORT
----------------------
CERTIFICATES FOR HOME EQUITY LOANS, SERIES 2000-F
Payment Date: ________________________
ADJUSTABLE RATE CERTIFICATES
----------------------------
1. Amount Available for Adjustable Rate Certificates
(including Monthly Servicing Fee) ______________
2. Portion, if any, of Amount Available for Adjustable
Rate Certificates added to
(a) Amount Available for Fixed Rate Group I
Certificates ______________
(b) Amount Available for Fixed Rate Group II
Certificates ______________
3. Portion, if any, of Amount Available for Fixed Rate
Group I Certificates or Fixed Rate Group II
Certificates added to Amount Available for Adjustable
Rate Certificates ______________
4. Formula Principal Distribution Amount: ______________
(a) Scheduled principal due (all Loans) ______________
(b) Principal Prepayments (all Loans) ______________
(c) Liquidated Loans (all Loans) ______________
(d) Repurchases (all Loans) ______________
(e) Previously undistributed (a)-(d) amounts ______________
(f) Pre-Funded ARM Amount, if any (Post-Funding ______________
Payment Date)
(g) minus Fixed Rate Group I Formula Principal ______________
-----
Distribution Amount and Fixed Rate Group II
Formula Principal Distribution Amount
5. LIBOR %
--------------
6. Available Funds Pass-Through Rate %
--------------
Interest
--------
M-1
Class AV-1 Certificates
-----------------------
7. Current interest
(a) Class AV-1 Pass-Through Rate (a floating rate
per annum equal to the lesser of (a) LIBOR
plus 0.25%, or (b) the Available Funds Pass-
Through Rate, but in no case more than 14.00%) %
--------------
(b) Class AV-1 interest paid ______________
(c) Class AV-1 Interest Shortfall ______________
8. Amount applied to Unpaid Class AV-1 Interest
Shortfall ______________
9. Remaining Unpaid Class AV-1 Interest Shortfall ______________
Class MV-1 Certificates
-----------------------
10. Class MV-1 Adjusted Principal Balance ______________
11. Current Interest
(a) Class MV-1 Pass-Through Rate (a floating rate
per annum equal to the lesser of (a) LIBOR
plus 0.75%, or (b) the Available Funds Pass-
Through Rate, but in no case more than 14.00%) %
--------------
(b) Class MV-1 interest paid ______________
(c) Class MV-1 Interest Shortfall ______________
12. Amount applied to Unpaid Class MV-1 Interest
Shortfall ______________
13. Remaining Unpaid Class MV-1 Interest Shortfall ______________
Class M-2 Certificates
----------------------
14. Class MV-2 Adjusted Principal Balance ______________
M-2
15. Current Interest
(a) Class MV-2 Pass-Through Rate (a floating rate
per annum equal to the lesser of (a) LIBOR
plus 1.35%, or (b) the Available Funds Pass-
Through Rate, but in no case more than 14.00%)
%
--------------
(b) Class MV-2 interest paid ______________
(c) Class MV-2 Interest Shortfall ______________
16. Amount applied to Unpaid Class MV-2 Interest
Shortfall ______________
17. Remaining Unpaid Class MV-2 Interest Shortfall ______________
Class BV-1 Certificates
-----------------------
18. Class BV-1 Adjusted Principal Balance ______________
19. Current Interest
(a) Class BV-1 Pass-Through Rate (a floating rate
per annum equal to the lesser of (a) LIBOR
plus 2.30%, or (b) the Available Funds Pass-
Through Rate, but in no case more than 14.00%) %
--------------
(b) Class BV-1 interest paid ______________
(c) Class BV-1 Interest Shortfall ______________
20. Amount applied to Unpaid Class BV-1 Interest
Shortfall ______________
21. Remaining Unpaid Class BV-1 Interest Shortfall ______________
Principal
---------
22. Trigger Event:
(a) Average Sixty-Day Delinquency Ratio Test (to
be satisfied, line (ii) may not exceed line
(iii))
(i) Sixty-Day Delinquency Ratio for current
Payment Date ______________
M-3
Arithmetic average of Sixty Day
(ii) Delinquency Ratios for current and two
preceding months ______________
(iii) 35% of the Senior Enhancement Percentage ______________
(b) Cumulative Realized Losses Test (to be
satisfied, line (ii) may not exceed 3.75% from
December 1, 2003 to November 30, 2004, 4.50%
from December 1, 2004 to November 30, 2005,
5.00% from December 1, 2005 to November 30,
2007, and 5.25% thereafter)
(i) Cumulative Realized Losses for current
Payment Date ______________
(ii) Cumulative Realized Losses as a
percentage of Cut-off Date Principal
Balances of Adjustable Rate Loans ______________
23. Senior Enhancement Percentage: a fraction,
expressed as a percentage: %
--------------
(a) the numerator of which is the excess of (i)
the aggregate Scheduled Principal Balances of
the Adjustable Rate Loans over (ii) the Class
AV-1 Principal Balance ______________
(b) The denominator of which is the aggregate
Scheduled Principal Balances of the Adjustable
Rate Loans on such Payment Date ______________
Class AV-1 Certificates
-----------------------
24. (a) Principal Distribution Amount ______________
(b) Class AV-1 Principal Balance ______________
(c) Amount, if any, by which Class AV-1 Formula
Principal Distribution Amount exceeds
Principal Distribution Amount ______________
Class MV-1 Certificates
-----------------------
25. (a) Principal Distribution Amount ______________
(b) Class MV-1 Principal Balance ______________
M-4
(c) Amount, if any, by which Class MV-1 Formula
Principal Distribution Amount exceeds
Principal Distribution Amount ______________
Class MV-2 Certificates
-----------------------
26. (a) Principal Distribution Amount ______________
(b) Class MV-2 Principal Balance ______________
(c) Amount, if any, by which Class MV-2 Formula
Principal Distribution Amount exceeds
Principal Distribution Amount ______________
Class BV-1 Certificates
-----------------------
27. (a) Principal Distribution Amount ______________
(b) Class BF-1 Principal Balance ______________
(c) Amount, if any, by which Class BV-1 Formula
Principal Distribution Amount exceeds
Principal Distribution Amount ______________
Liquidation Loss Interest
Class MV-1 Certificates
-----------------------
28. (a) Amount applied to Class MV-1 Liquidation Loss
Interest Amount ______________
(b) Class MV-1 Liquidation Loss Interest Shortfall ______________
(c) Amount applied to Unpaid Class MV-1
Liquidation Loss Interest Shortfall ______________
(d) Remaining Unpaid Class MV-1 Liquidation Loss
Interest Shortfall ______________
Class MV-2 Certificates
------------------------
29. (a) Amount applied to Class MV-2 Liquidation Loss
Interest Amount ______________
(b) Class MV-2 Liquidation Loss Interest Shortfall ______________
(c) Amount applied to Unpaid Class MV-2
Liquidation Loss Interest Shortfall ______________
(d) Remaining Unpaid Class MV-2 Liquidation Loss
Interest Shortfall ______________
Class BV-1 Certificates
-----------------------
M-5
30. (a) Amount applied to Class BV-1 Liquidation Loss
Interest Amount ______________
(b) Class BV-1 Liquidation Loss Interest Shortfall ______________
(c) Amount applied to Unpaid Class BV-1
Liquidation Loss Interest Shortfall ______________
(d) Remaining Unpaid Class BV-1 Liquidation Loss
Interest Shortfall ______________
Class BV-2 Certificates
-----------------------
Interest
31. Current Interest
(a) Class BV-2 Pass-Through Rate (the floating
rate per annum equal to the lessor of (a)
LIBOR plus 2.50%, or (b) the Available Funds
Pass-Through Rate, but in no case more than
14.00%) %
--------------
(b) Class BV-2 interest paid ______________
(c) Class BV-2 Interest Shortfall ______________
32. Amount applied to Unpaid Class BV-2 Interest
Shortfall ______________
33. Remaining Unpaid Class BV-2 Interest Shortfall ______________
Principal
34. Principal Distribution Amount ______________
35. Amount, if any, by which Class BV-2 Formula
Principal Distribution Amount exceeds Principal
Distribution Amount ______________
36. Class BV-2 Principal Balance ______________
Servicer
37. Monthly Servicing Fee (if Originator or affiliate
is Servicer) ______________
Overcollateralization principal distribution
M-6
38. If Overcollateralization Amount for Adjustable Rate
Certificates is less than $3,150,000, the
deficiency to:
(a) Class AV-1 ______________
(b) Class MV-1 ______________
(c) Class MV-2 ______________
(d) Class BV-1 ______________
(e) Class BV-2 ______________
Available Funds Cap Carryover Amount
Class AV-1 Certificates
-----------------------
39. (a) Class AV-1 Available Funds Cap Carryover
Amount ______________
(b) Amount applied to Class AV-1 Available
Funds Cap Carryover Amount ______________
(c) Class AV-1 Available Funds Cap Carryover
Amount remaining unpaid ______________
Class MV-1 Certificates
-----------------------
40. (a) Class MV-1 Available Funds Cap Carryover
Amount ______________
(b) Amount applied to Class MV-1 Available
Funds Cap Carryover Amount ______________
(c) Class MV-1 Available Funds Cap Carryover
Amount remaining unpaid ______________
Class MV-2 Certificates
-----------------------
41. (a) Class MV-2 Available Funds Cap Carryover
Amount ______________
(b) Amount applied to Class MV-2 Available
Funds Cap Carryover Amount ______________
(c) Class MV-2 Available Funds Cap Carryover
Amount remaining unpaid ______________
Class BV-1 Certificates
-----------------------
42. (a) Class BV-1 Available Funds Cap Carryover
Amount ______________
M-7
(b) Amount applied to Class BV-1 Available
Funds Cap Carryover Amount ______________
(c) Class BV-1 Available Funds Cap Carryover
Amount remaining unpaid ______________
Class BV-2 Certificates
-----------------------
43. (a) Class BV-2 Available Funds Cap Carryover
Amount ______________
(b) Amount applied to Class BV-2 Available
Funds Cap Carryover Amount ______________
(c) Class BV-2 Available Funds Cap Carryover
Amount remaining unpaid ______________
44. Portion, if any, of Amount Available for Adjustable
Rate Certificates added to:
(a) Amount Available for Fixed Rate Group I
Certificates ______________
(b) Amount Available for Fixed Rate Group II
Certificates ______________
Servicer/Trustee
45. Reimbursement for unreimbursed Advances ______________
Additional Principal (on and after Additional Principal
Entitlement Date)
46. (a) Class AV-1 ______________
(b) pro rata: Class MV-1 ______________
pro rata: Class MV-2 ______________
pro rata: Class BV-1 ______________
pro rata: Class BV-2 ______________
Class C Certificateholder
47. Reimbursement of expenses ______________
48. Amount Available remaining ______________
Other Information
49. Overcollateralization Amount for the Adjustable
Rate Certificates ______________
M-8
50. Target Overcollateralization Amount $3,150,000
51. Pre-Funded ARM Amount ______________
B. CLASS AF-1A CERTIFICATES
------------------------
1. Amount Available for Class AF-1A Certificates
(including Monthly Servicing Fee) ______________
2. Portion, if any, of Amount Available for Class
AF-1A Certificates added to Amount Available for
Fixed Rate Group II Certificates or Adjustable Rate
Certificates ______________
3. Portion, if any, of Amount Available for Fixed Rate
Group II Certificates or Adjustable Rate
Certificates added to Amount Available for Class
AF-1A Certificates ______________
4. Fixed Rate Group I Formula Principal Distribution
Amount ______________
(a) Scheduled principal due (Fixed Rate Group I
Loans) ______________
(b) Principal Prepayments (Fixed Rate Group I
Loans) ______________
(c) Liquidated Loans (Fixed Rate Group I Loans) ______________
(d) Repurchases (Fixed Rate Group I Loans) ______________
(e) Pre-Funded Fixed Rate Group I Amount, if any
(Post-Funding Payment Date) ______________
Interest
5. Current interest
(a) Class AF-1A Pass-Through Rate 7.23%
(b) Class AF-1A interest paid ______________
(c) Class AF-1A Interest Shortfall ______________
6. Amount applied to Unpaid Class AF-1A Interest
Shortfall ______________
M-9
7. Remaining Unpaid Class AF-1A Interest Shortfall ______________
8. Portion, if any, of Amount Available for Class
AF-1A Certificates added to Amount Available for
Fixed Rate Group II Certificate ______________
Principal
9. Trigger Event:
(a) Average Sixty-Day Delinquency Ratio Test
(to be satisfied, line (ii) may not exceed
line (iii)) ______________
(i) Sixty-Day Delinquency Ratio for
current Payment Date ______________
(ii) Arithmetic average of Sixty Day
Delinquency Ratios for current and two
preceding months ______________
(iii) 35% of the Senior Enhancement
Percentage ______________
(b) Cumulative Realized Losses Test (to be
satisfied, line (ii) may not exceed 4.00%
from December 1, 2003 to November 30, 2004,
5.00% from December 1, 2004 to November 30,
2005, 5.50% from December 1, 2005 to
November 30, 2008, and 5.75% thereafter)
(i) Cumulative Realized Losses for
current Payment Date ______________
(ii) Cumulative Realized Losses as a
percentage of Cut-off Date Principal
Balances of Fixed Rate Loans ______________
10. Senior Enhancement Percentage: a fraction,
expressed as a percentage: %
--------------
(a) The numerator of which is the excess of (i)
the aggregate Scheduled Principal Balances
of the Fixed Rate Loans over (ii) the Class
AF Principal Balance ______________
M-10
(b) the denominator of which is the aggregate
Scheduled Principal Balances of the Fixed
Rate Loans on such Payment Date ______________
11. (a) Principal Distribution Amount ______________
(b) Class AF-1A Principal Balance ______________
(c) Amount, if any, by which Class AF-1A
Formula Principal Distribution Amount
exceeds Principal Distribution Amount ______________
12. Portion of Amount Available for Class AF-1A
Certificates, if any, added to Amount Available for
Fixed Rate Group II Certificates ______________
Servicer
13. Monthly Servicing Fee (if Originator or affiliate
is Servicer) ______________
Overcollateralization principal distribution
14. If Overcollateralization Amount for Fixed Rate
Certificates is less than $18,200,000, the
deficiency to:
(a) Class AF-1A ______________
(b) After distributions from Amount Available
for Fixed Rate Group II Certificates:
Class AF-1 ______________
Class AF-2 ______________
Class AF-3 ______________
Class AF-4 ______________
15. Portion, if any, of Amount Available for Class
AF-1A Certificates added to Amount Available for
Adjustable Rate Certificates (pro rata with portion
of Amount Available for Fixed Rate Group II
Certificates) ______________
Servicer/Trustee
16. Reimbursement for Advances ______________
Additional Principal (on and after Additional Principal
Entitlement Date)
M-11
17. (a) Class AF-1A _______________
(b) Fixed Rate Group II
(i) pro rata: Class AF-1 _______________
Class AF-2 _______________
Class AF-3 _______________
Class AF-4 _______________
(ii) pro rata: Class MF-1 _______________
Class MF-2 _______________
Class BF-1 _______________
Class BF-2 _______________
Class C Certificateholder
18. Reimbursement of expenses _______________
19. Amount Available remaining _______________
Other Information
20. Overcollateralization Amount for the Fixed Rate
Certificates _______________
21. Target Overcollateralization Amount $18,200,000
22. Pre-Funded Fixed Rate Group I Amount _______________
(FIXED RATE GROUP II CERTIFICATES
--------------------------------
1. Amount Available for Fixed Rate Group II
Certificates (including Monthly Servicing Fee) _______________
2. Portion, if any, of Amount Available for Fixed Rate
Group II Certificates added to Amount Available for
Class AF-1A Certificates or Adjustable Rate
Certificates _______________
3. Portion, if any, of Amount Available for Class AF-1A
Certificates or Adjustable Rate Certificates added
to Amount Available for Fixed Rate Group II
Certificates _______________
4. Fixed Rate Group II Formula Principal Distribution
Amount _______________
M-12
(a) Scheduled principal due (all Fixed Rate
Loans) _______________
(b) Principal Prepayments (all Fixed Rate Loans) _______________
(c) Liquidated Loans (all Fixed Rate Loans) _______________
(d) Repurchases (all Fixed Rate Loans) _______________
(e) Pre-Funded Fixed Rate Group II Amount, if
any (Post-Funding Payment Date) _______________
(f) minus Fixed Rate Group I Formula Principal
-----
Distribution Amount _______________
Interest
5. (a) Class AF-1 Pass-Through Rate 6.86%
(b) Class AF-l interest paid _______________
(c) Class AF-l Interest Shortfall _______________
(d) Class AF-2 Pass-Through Rate 6.98%
(e) Class AF-2 interest paid _______________
(f) Class AF-2 Interest Shortfall _______________
(g) Class AF-3 Pass-Through Rate 7.17%
(h) Class AF-3 interest paid _______________
(i) Class AF-3 Interest Shortfall _______________
(j) Class AF-4 Pass-Through Rate (7.67% plus
0.50% after Additional Entitlement Date) %
---------------
(k) Class AF-4 interest paid _______________
(l) Class AF-4 Interest Shortfall _______________
6. Amount applied to Unpaid Class AF Group II
Interest Shortfall _______________
(a) Class AF-l _______________
(b) Class AF-2 _______________
(c) Class AF-3 _______________
(d) Class AF-4 _______________
7. Remaining Unpaid Class AF Group II Interest Shortfall _______________
(a) Class AF-l _______________
(b) Class AF-2 _______________
(c) Class AF-3 _______________
(d) Class AF-4 _______________
M-13
8. Portion, if any, of Amount Available for Fixed Rate
Group II Certificates added to Amount Available for
Class AF-1A Certificates _______________
Class MF-1 Certificates
-----------------------
9. Class MF-1 Adjusted Principal Balance _______________
10. Current Interest
(a) Class MF-1 Pass-Through Rate 8.30%
(b) Class MF-1 interest paid _______________
(c) Class MF-1 Interest Shortfall _______________
11. Amount applied to Unpaid Class MF-1 Interest
Shortfall _______________
12. Remaining Unpaid Class MF-1 Interest Shortfall _______________
Class MF-2 Certificates
-----------------------
13. Class MF-2 Adjusted Principal Balance _______________
14. Current Interest
(a) Class MF-2 Pass-Through Rate 8.93%
(b) Class MF-2 interest paid _______________
(c) Class MF-2 Interest Shortfall _______________
15. Amount applied to Unpaid Class MF-2 Interest
Shortfall _______________
16. Remaining Unpaid Class MF-2 Interest Shortfall _______________
Class BF-1 Certificates
-----------------------
17. Class BF-1 Adjusted Principal Balance _______________
18. Current Interest
(a) Class BF-1 Pass-Through Rate (a floating
rate per annum equal to the Weighted
Average Loan Rate, but in no case more than
10.55%) %
---------------
(b) Class BF-1 interest paid _______________
(c) Class BF-1 Interest Shortfall _______________
M-14
19. Amount applied to Unpaid Class BF-1 Interest
Shortfall _______________
20. Remaining Unpaid Class BF-1 Interest Shortfall _______________
Principal
21. Trigger Event:
(a) Average Sixty-Day Delinquency Ratio Test
(to be satisfied, line (ii) may not exceed
line (iii))
(i) Sixty-Day Delinquency Ratio for
current Payment Date _______________
(ii) Arithmetic average of Sixty Day
Delinquency Ratios for current and two
preceding months _______________
(iii) 35% of the Senior Enhancement
Percentage _______________
(b) Cumulative Realized Losses Test (to be
satisfied, line (ii) may not exceed 4.00%
from December 1, 2003 to November 30, 2004,
5.00% from December 1, 2004 to November 30,
2005, 5.50% from December 1, 2005 to
November 30, 2008, and 5.75% thereafter)
(i) Cumulative Realized Losses for current _______________
Payment Date
(ii) Cumulative Realized Losses as a
percentage of Cut-off Date Principal
Balances of Adjustable Rate Loans _______________
22. Senior Enhancement Percentage: a fraction, expressed
as a percentage: %
---------------
(a) the numerator of which is the excess of (i)
the aggregate Scheduled Principal Balances
of the Fixed Rate Loans over (ii) the Class
AF Principal Balance _______________
(b) the denominator of which is the aggregate
Scheduled Principal Balances of the Fixed
Rate Loans on such Payment Date _______________
M-15
Class AF Group II Certificates
------------------------------
23. Principal Distribution Amount
(a) Class AF-1 _______________
(b) Class AF-2 _______________
(c) Class AF-3 _______________
(d) Class AF-4 _______________
24. (a) Class AF-1 Principal Balance _______________
(b) Class AF-2 Principal Balance _______________
(c) Class AF-3 Principal Balance _______________
(d) Class AF-4 Principal Balance _______________
25. Amount, if any, by which Class AF Group II Formula
Principal Distribution Amount allocable to each
Class of Class AF Group II Certificates exceeds
(a) Principal Distribution Amount for Class
AF-1 Certificates _______________
(b) Principal Distribution Amount for Class
AF-2 Certificates _______________
(c) Principal Distribution Amount for Class
AF-3 Certificates _______________
(d) Principal Distribution Amount for Class
AF-4 Certificates _______________
26. Portion, if any, of Amount Available for Fixed Rate
Group II Certificates added to Amount Available for
Class AF-1A Certificates _______________
Class MF-1 Certificates
-----------------------
27. (a) Principal Distribution Amount _______________
(b) Class MF-1 Principal Balance _______________
(c) Amount, if any, by which Class MF-1 Formula
Principal Distribution Amount exceeds
Principal Distribution Amount _______________
Class MF-2 Certificates
-----------------------
28. (a) Principal Distribution Amount _______________
(b) Class MF-2 Principal Balance _______________
M-16
(c) Amount, if any, by which Class MF-2 Formula
Principal Distribution Amount exceeds
Principal Distribution Amount _______________
Class BF-1 Certificates
-----------------------
29. (a) Principal Distribution Amount _______________
(b) Class BF-1 Principal Balance _______________
(c) Amount, if any, by which Class BF-1 Formula
Principal Distribution Amount exceeds
Principal Distribution Amount _______________
Liquidation Loss Interest
Class MF-1 Certificates
-----------------------
30. (a) Amount applied to Class MF-1 Liquidation
Loss Interest Amount _______________
(b) Class MF-1 Liquidation Loss Interest
Shortfall _______________
(c) Amount applied to Unpaid Class MF-1
Liquidation Loss Interest Shortfall _______________
(d) Remaining Unpaid Class MF-1 Liquidation
Loss Interest Shortfall _______________
Class MF-2 Certificates
Amount applied to Class MF-2 Liquidation
Loss Interest Amount _______________
Class MF-2 Liquidation Loss Interest
Shortfall _______________
Amount applied to Unpaid Class MF-2
Liquidation Loss Interest Shortfall _______________
Remaining Unpaid Class MF-2 Liquidation
Loss Interest Shortfall _______________
Class BF-1 Certificates
-----------------------
Amount applied to Class BF-1 Liquidation
Loss Interest Amount _______________
Class BF-1 Liquidation Loss Interest
Shortfall _______________
Amount applied to Unpaid Class BF-1
Liquidation Loss Interest Shortfall _______________
Remaining Unpaid Class BF-1 Liquidation
Loss Interest Shortfall _______________
M-17
Class BF-2 Certificates
-----------------------
Interest
Current Interest
Class BF-2 Pass-Through Rate (floating rate
equal to the Adjusted Weighted Average Loan
Rate, but in no event greater than 10.00%) %
---------------
Class BF-2 interest paid _______________
Class BF-2 Interest Shortfall _______________
Amount applied to Unpaid Class BF-2 Interest
Shortfall _______________
Remaining Unpaid Class BF-2 Interest Shortfall
_______________
Principal
Principal Distribution ▇▇▇▇▇▇
▇▇▇▇▇▇, if any, by which Class BF-2 Formula _______________
Principal Distribution Amount exceeds
Principal Distribution Amount _______________
Class BF-2 Principal Balance _______________
Servicer
Monthly Servicing Fee (if Originator or affiliate is
Servicer) _______________
Overcollateralization principal distribution
If Overcollateralization Amount for Fixed Rate
Certificates is less than $18,200,000, the
deficiency to:
Class AF-1 _______________
Class AF-2 _______________
Class AF-3 _______________
Class AF-4 _______________
Class MF-1 _______________
Class MF-2 _______________
Class BF-1 _______________
Class BF-2 _______________
M-18
Class AF-1A (after distribution of Amount
Available for Class AF-1A Certificates) _______________
Portion, if any, of Amount Available for Fixed Rate
Group II Certificates added to Amount Available for
Adjustable Rate Certificates (pro rata with portion
of Amount Available for Class AF-1A Certificates) _______________
Servicer/Trustee
Reimbursement for unreimbursed Advances _______________
Additional Principal (on and after Additional Principal
Entitlement Date)
pro rata: Class AF-1 _______________
Class AF-2 _______________
Class AF-3 _______________
Class AF-4 _______________
Class AF-1A _______________
pro rata: Class MF-1 _______________
Class MF-2 _______________
Class BF-1 _______________
Class BF-2 _______________
Class C Certificateholder
Reimbursement for expenses _______________
Amount Available remaining _______________
Other Information
Overcollateralization Amount for the Fixed Rate
Certificates _______________
Target Overcollateralization Amount $18,200,000
Pre-Funded Fixed Rate Group II Amount _______________
I CLASS A, CLASS M AND CLASS B CERTIFICATES
-----------------------------------------
Scheduled Principal Balances of Loans
Adjustable Rate Loans _______________
M-19
Fixed Rate Group I Loans _______________
Fixed Rate Group II Loans _______________
Pool Factor
_______________
Loans Delinquent:
30 - 59 days
Adjustable Rate _______________
Fixed Rate Group I _______________
Fixed Rate Group II _______________
60 - 89 days
Adjustable Rate _______________
Fixed Rate Group I _______________
Fixed Rate Group II _______________
90 or more days
Adjustable Rate _______________
Fixed Rate Group I _______________
Fixed Rate Group II _______________
Principal Balance of Defaulted Loans
Adjustable Rate _______________
Fixed Rate Group I _______________
Fixed Rate Group II _______________
Liquidated Loans: Adjustable Rate Loans
Number _______________
(a)
Aggregate unpaid principal balance _______________
(b)
REO (unpaid principal balance) _______________
(c)
Net Liquidation Loss _______________
(d)
Liquidated Loans: Fixed Rate Loans
Number _______________
(a)
Aggregate unpaid principal balance _______________
(b)
REO (unpaid principal balance) _______________
M-20
(c)
Net Liquidation Loss _______________
(d)
Number of Loans Remaining _______________
Adjustable Rate _______________
Fixed Rate Group I _______________
Fixed Rate Group II _______________
M-21
Class C Certificates
--------------------
Class C Distribution Amount (sum of lines
A(48), B(19), and C(43)) _________________
Please contact the Bondholder Relations Department of U.S. Bank Trust
National Association at (▇▇�) ▇▇�-▇▇▇▇ with any questions regarding this
Statement or your Distribution.
M-22
EXHIBIT N
---------
FORM OF ADDITION NOTICE
-----------------------
_________, 2000
U.S. Bank Trust National Association
▇▇� ▇▇▇▇ ▇▇▇▇� ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇�
Re: Pooling and Servicing Agreement (the "Agreement"), dated as of October 1,
2000, among Conseco Finance Corp. (the "Originator") , Conseco Finance
Securitizations Corp. (the "Seller") and U.S. Bank Trust National
Association as Trustee (the "Trustee") relating to Certificates for Home
Equity Loans, Series 2000-F
Ladies and Gentlemen:
Capitalized terms not otherwise defined in this Notice have the meanings
given them in the Agreement. The Seller hereby notifies the Trustee of an
assignment to the Trust of Subsequent Loans on the date and in the amounts set
forth below:
Subsequent Transfer Date: __________
Cut-off Date Principal Balance of Subsequent Loans to be assigned to Trust
on Subsequent Transfer Date:
Adjustable Rate: $__________________
Fixed Rate Group I: $__________________
Fixed Rate Group II: $__________________
N-1
Please acknowledge your receipt of this notice by countersigning the
enclosed copy in the space indicated below and returning it to the attention of
the undersigned.
Very truly yours,
CONSECO FINANCE CORP.
By:________________________________
[Name]
[Title]
ACKNOWLEDGED AND AGREED:
U.S. BANK TRUST NATIONAL ASSOCIATION
By:__________________________
Name:
Title:
cc: Standard & Poor's Ratings Services
Fitch IBCA Inc.
▇▇▇▇�'� Credit Rating Co.
N-2
EXHIBIT O
---------
FORM OF SUBSEQUENT TRANSFER INSTRUMENT
--------------------------------------
In accordance with the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") dated as of October 1, 2000, among Conseco Finance Corp.
(the "Originator"), Conseco Finance Securitizations Corp. (the "Seller") and
U.S. Bank Trust National Association as Trustee (the "Trustee"), the Seller does
hereby transfer, assign, set over and otherwise convey, without recourse, to
Conseco Finance Home Equity Loan Trust 2000-F, created by the Pooling and
Servicing Agreement, to be held in trust as provided in the Pooling and
Servicing Agreement, (i) all right, title and interest in the home equity loans
identified in the List of Loans attached hereto as Exhibit A (each a "Subsequent
Loan"), including, without limitation, all related mortgages, deeds of trust,
security deeds and any and all rights to receive payments on or with respect to
the Subsequent Loans (excluding principal due on or before the Subsequent Cut-
off Date), (ii) all rights under any hazard, flood or other individual insurance
policy on the real estate securing a Subsequent Loan for the benefit of the
owner of such Loan, (iii) all rights the Originator may have against the
originating lender with respect to the Subsequent Loans originated by a lender
other than the Originator, (iv) all rights under the Errors and Omissions
Protection Policy and the Fidelity Bond as such policy and bond relate to the
Subsequent Loans, (v) all rights under any title insurance policies, if
applicable, on any of the properties securing Subsequent Loans, (vi) all
documents contained in the related Loan Files, (vii) all rights of the Seller
under the Subsequent Transfer Agreement dated __________ between the Seller and
the Originator, and (viii) all proceeds and products of the foregoing.
This Assignment is made pursuant to and upon the representation and
warranties on the part of the Seller contained in Section 2.03 and Article III
of the Pooling and Servicing Agreement and no others. All undefined capitalized
terms used in this Assignment have the meanings given them in the Pooling and
Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Subsequent Transfer
Instrument to be duly executed this _______ day of _____________________, 2000.
CONSECO FINANCE SECURITIZATIONS
CORP.
By:_____________________________
[Name]
[Title]
O-1
EXHIBIT P
---------
FORM OF OFFICER'S CERTIFICATE (SUBSEQUENT TRANSFER)
---------------------------------------------------
CONSECO FINANCE SECURITIZATIONS CORP.
The undersigned certifies that [s]he is a [title] of Conseco Finance
Securitizations Corp., a Minnesota corporation (the "Seller"), and that as such
[s]he is duly authorized to execute and deliver this certificate on behalf of
the Seller in connection with the Pooling and Servicing Agreement dated as of
October 1, 2000 (the "Agreement") among the Seller, Conseco Finance Corp. and
U.S. Bank Trust National Association as Trustee. All capitalized terms used
herein without definition have the respective meanings specified in the
Agreement. The undersigned further certifies that:
1. This Certificate is delivered in connection with the sale to the Trust
on ________________________________ (the "Subsequent Transfer Date") of Loans
(the "Subsequent Loans") identified in the List of Loans attached to the
Subsequent Transfer Instrument of even date herewith.
2. As of the Subsequent Transfer Date, all representations and warranties
in Section 3.01 of the Agreement are true and correct and all representations
and warranties in Section 3.03 of the Agreement are true to the best of
[his][her] knowledge.
3. All conditions precedent to the sale of the Subsequent Loans to the
Trust under Section 2.03 of the Pooling and Servicing Agreement have been
satisfied.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ________ day
of _____________________, 2000.
By:________________________________
[Name]
[Title]
P-1