Exhibit 99.6
$1,500,000,000 FIVE-YEAR CREDIT AGREEMENT
WAIVER NO. 2, dated as of September 8, 2002 (this "Waiver"), to the
$1,500,000,000 Five-Year Credit Agreement dated as of September 25, 1998 (as
heretofore amended, the "Credit Agreement") among Conseco, Inc., an Indiana
corporation (the "Borrower"), the various financial institutions signatory
thereto (the "Banks") and Bank of America, N.A., individually and as agent for
the Banks (the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower has asked the Banks, and the Banks party hereto are
willing, on the terms and conditions set forth below and for a limited period
only, to waive compliance with certain provisions of, and to waive certain
Defaults and Events of Default under, the Credit Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 . Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement.
SECTION 2 . Waivers. (a) Debt to Total Capitalization Ratio. The Banks
party hereto hereby agree to waive compliance by the Borrower, on an interim
basis until Waiver Termination (as defined below) only, with the requirements
set forth in Section 4.13 of the Appendix (incorporated by reference into the
Credit Agreement) that the Debt to Total Capitalization Ratio (i) as of June 30,
2002 not be greater than 0.400:1.0 and (ii) as of September 30, 2002 not be
greater than 0.375:1.0, and waive any Default or Event of Default that may have
occurred or may occur solely as a result of such noncompliance.
(b) Cross-Default. The Banks party hereto hereby agree to waive, on an
interim basis until Waiver Termination only, any Default or Event of Default
that may occur pursuant to Section 5.01(e) of the Appendix (incorporated by
reference into the Credit Agreement) solely as a result of the failure by the
Borrower or CIHC (as guarantor of the Borrower's obligations with respect to the
New Notes (as defined in Schedule I)) to make the interest payment in respect of
any Indebtedness set forth on Schedule I hereto on the payment date set forth
with respect to such Indebtedness on such Schedule or within any applicable
grace or notice period (and any cross-default under any other Indebtedness
solely as a result of such failure).
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(c) Period of Effectiveness. Each of the foregoing waivers shall be
effective solely during the period commencing on the effectiveness of such
waiver, determined in accordance with Section 7 hereto, and ending at Waiver
Termination, at which time the foregoing waivers shall terminate and be of no
further force or effect. "Waiver Termination" means the earliest to occur of:
(i) 12:01 A.M. (New York time) on October 17, 2002;
(ii)the commencement by any holder of Indebtedness or other obligations
(including, without limitation, any Indebtedness or other obligations pursuant
to any agreement or instrument listed on Schedule I, II or III hereto or any
guaranty thereof) of the Borrower, any of its Subsidiaries or any special
purpose entity established in connection with the transactions contemplated by
any of the agreements referred to in Schedule II hereto (each, an "SPE") (or any
indenture trustee or agent therefor) of the exercise of any remedy (including,
without limitation, acceleration or the making of a demand under any guaranty
entered into in connection therewith) or the taking of any other action in
furtherance of collection or enforcement of any claim or Lien against the
Borrower, any of its Subsidiaries or any SPE or any of their respective assets;
provided that, (A) solely in the case of agreements or instruments listed in
Schedule II, the foregoing shall result in Waiver Termination only if the
Borrower fails to receive by the close of business on the second Business Day
after occurrence of such event a written notification from the Required Banks
stating that the waivers granted in this Section 2 will not terminate as a
result of such event and (B) in the case of Indebtedness or other obligations
arising under agreements or instruments not listed on Schedule I, II or III
hereto, the foregoing shall result in Waiver Termination only if the aggregate
principal amount of Indebtedness or other obligations outstanding under such
agreements or instruments (including committed or available amounts thereunder)
exceeds $10,000,000;
(iii) the making by the Borrower or any of its Subsidiaries (other than
Conseco Finance or any of its Subsidiaries), directly or indirectly, of any
Investment in Conseco Finance or any of its Subsidiaries after the date hereof
(other than Investments in an aggregate amount not exceeding $6,000,000 in
respect of products and services provided in the ordinary course of business and
consistent with past practices), unless, at least five Business Days prior to
making such Investment, the Borrower shall have delivered written notification
thereof to the Agent setting forth the name of the entity making such
Investment, the date on which such Investment is to be made, the amount and form
of such Investment and, in reasonable detail, the reasons for making such
Investment; and
(iv) receipt by the Borrower of a written notice from the Required Banks
advising the Borrower that they have determined (in their sole discretion) to
terminate the waivers granted in this Section 2.
2
(d) Limited Effect. Except as provided in subsections (a) and (b) above,
this Section 2 shall not operate as a waiver of any right, remedy, power or
privilege of the Banks under the Credit Agreement or any other Loan Document or
of any other term or condition of the Credit Agreement or any other Loan
Document. Without limiting the generality of the foregoing, upon Waiver
Termination, the Banks or the Agent may proceed to exercise any and all of their
respective rights and remedies, including, without limitation, their rights and
remedies in connection with any Default or Event of Default referred to in this
Section 2.
SECTION 3 . Interest Rate. Notwithstanding any provision in the Credit
Agreement to the contrary, from and after the date hereof, interest on the
principal amount of Loans outstanding under the Credit Agreement shall be
calculated and shall accrue at the Default Rate (as defined in Section 2.12(c)
of the Credit Agreement). Such interest shall be payable in arrears on the next
Interest Payment Date and, thereafter, on the last Business Day of each calendar
month (commencing November 2002). Any amount of interest not paid when due shall
be added to and shall increase the outstanding principal amount of Loans and
shall thereafter accrue interest as set forth above. The Credit Agreement is
hereby amended to the extent necessary to give effect to the provisions of this
Section 3 and such amendment and this Section 3 shall survive the termination of
this Waiver.
SECTION 4 . Representations Correct; No Default. The Borrower represents
and warrants that, except as expressly waived hereby, on and as of the date
hereof (i) the representations and warranties contained in the Credit Agreement
are true as though made on and as of the date hereof (except to the extent a
representation or warranty references a specific date, in which case, such
representation or warranty is true as of such date) and (ii) no Default or Event
of Default has occurred and is continuing.
SECTION 5 . Governing Law. This Waiver shall be governed by and construed
in accordance with the laws of Illinois.
SECTION 6 . Counterparts. This Waiver may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 7 . Effectiveness. This Waiver shall become effective (and shall be
binding on all Banks) (i) as of the date hereof with respect to the waivers
provided in Sections 2(a)(ii) and 2(b) hereof and (ii) as of June 30, 2002 with
respect to the waiver provided in Section 2(a)(i) hereof, in each case when the
following conditions are satisfied:
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(i) the Agent shall have received from each of the Borrower and the
Required Banks a counterpart hereof signed by such party or facsimile or other
written confirmation (in form satisfactory to the Agent) that such party has
signed a counterpart hereof; and
(ii) the requisite lenders under each of (a) the Agreement dated September
22, 2000, Re: 1997 D&O Loans, (b) the Agreement dated September 22, 2000, Re:
1998 D&O Loans, and (c) the Agreement dated September 22, 2000, Re: 1999 D&O
Loans, shall have granted waivers thereunder on terms substantially similar to
those contained herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly
executed as of the date first above written.
CONSECO, INC.
By:/s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and Secretary
5
BANK OF AMERICA, N.A., as
Administrative Agent and as a Bank
By:/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
JPMORGAN CHASE BANK
By:/s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
BEAR XXXXXXX & CO INC.
By:/s/ Xxxx XxXxxxxxx
---------------------------------------
Name: Xxxx XxXxxxxxx
Title: Senior Managing Director
DEUTSCHE BANK
AKTIENGESELLSCHAFT
By:
---------------------------------------
Name:
Title:
SILVER OAK CAPITAL LLC
By:/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
FLEET NATIONAL BANK
By:/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By:/s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-Fact
DK ACQUISITION PARTNERS
By:/s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: General Partner
THE BANK OF NEW YORK
By:/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BANK OF TOKYO-MITSUBISHI LTD
NEW YORK BRANCH
By:/s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By:/s/ Xxx Xxxxx
---------------------------------------
Name: Xxx Xxxxx
Title: Director
By:/s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
SOCIETE GENERALE
By:
---------------------------------------
Name:
Title:
XXXXXXX SACHS CREDIT
PARTNERS LP
By:
---------------------------------------
Name:
Title:
COMERICA BANK
By:/s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
OAKTREE CAPITAL MANAGEMENT, LLC as general
partner and/or investment manager of
certain funds and accounts it manages
By:/s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
By:/s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
PERRY PRINCIPALS, LLC
By: /s/ Xxxxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Managing Director
KEYBANK NA
By:/s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXX FARGO BANK NA
By:/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
SATELLITE SENIOR INCOME FUND
LLC
By:/s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Principal
MARINER LDC
By:
---------------------------------------
Name:
Title:
NORTHWOODS CAPITAL III
LIMITED
By: Xxxxxx, Xxxxxx & Co., L.P., as
Collateral Manager
By:/s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
KENSINGTON INTERNATIONAL
LIMITED
By: Xxxxxxx International Capital Advisors
Inc. as attorney-in-fact
By:
---------------------------------------
Name:
Title:
XXX CAPITAL FUNDING LP
By: Highland Capital Management, L.P.
As Collateral Manager
By:
---------------------------------------
Name:
Title:
NORDDEUTSCHE LANDESBNK
GIROZENTRALE
By:
---------------------------------------
Name:
Title:
SUNTRUST BANK
By:/s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
CERES II FINANCE LTD
By: INVESCO Senior Secured
Management, Inc., as Sub-Managing
Agent (Financial)
By:/s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
FERNWOOD ASSOCIATES LP
By:/s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: General Partner
US BANK NA
By:/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A. DEBT
TRADING
By:/s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
ML CBO IV CAYMAN LTD.
By: Highland Capital Management, L.P.
As Collateral Manager
By:
---------------------------------------
Name:
Title:
NATIONAL CITY BANK OF INDIANA
By:/s/ F. Xxxxxxx Xxxxxxxxxxx, III
---------------------------------------
Name: F. Xxxxxxx Xxxxxxxxxxx, III
Title: Senior Vice President
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.
As Collateral Manager
By:
---------------------------------------
Name:
Title:
PRESIDENT & FELLOWS OF
HARVARD
By:
---------------------------------------
Name:
Title:
BRENCOURT SEC MASTER LTD
By:/s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
CANPARTNERS INVESTMENTS IV
LLC
By: /s/ X. Xxxxxxxxx X. Xxxxxxx
---------------------------------------
Name: X. Xxxxxxxxx X. Xxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX XXXXXX XXXXXX &
XXXXX
By:/s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
NUVEEN SENIOR INCOME FUND
By:
---------------------------------------
Name:
Title:
AG CAPITAL FUNDING PARTNERS
LP
By: Xxxxxx, Xxxxxx & Co., L.P., as
Investment Adviser
By:/s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
HARBOURVIEW CDO II LTD
By:
---------------------------------------
Name:
Title:
SRF 2000 LLC
By:
---------------------------------------
Name:
Title:
SRF TRADING INC
By:
---------------------------------------
Name:
Title:
XXXXX XXX FLOATING RATE
LIMITED LIABILITY COMPANY
By: Xxxxx Xxx & Xxxxxxx Incorporated,
As Advisor
By:/s/ Xxxxx X. Good
---------------------------------------
Name: Xxxxx X. Good
Title: Senior Vice President
XXXXXX XXXXXXX EMERGING
MARKETS INC.
By:/s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
AMMC CDO II, LTD
By: American Money Management Corp.,
as Collateral Manager
By:/s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
NORTHWOODS CAPITAL LIMITED
By: Xxxxxx, Xxxxxx & Co., L.P., as
Collateral Manager
By:/s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
KZH CNC LLC
By:/s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Agent
AMMC/CDO I LIMITED
By: American Money Management Corp.,
as Collateral Manager
By:/s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
NORTHWOODS CAPITAL II LTD
By: Xxxxxx, Xxxxxx & Co., L.P., as
Collateral Manager
By:/s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
WINGED FOOT FUNDING TRUST
By:
---------------------------------------
Name:
Title:
LIBERTY-XXXXX XXX ADVISOR
FLOATING RATE ADVANTAGE
FUND
By: Xxxxx Xxx & Xxxxxxx Incorporated,
As Advisor
By:/s/ Xxxxx X. Good
---------------------------------------
Name: Xxxxx X. Good
Title: Senior Vice President and
Portfolio Manager
XXXXXXXXXXX SENIOR FLOATING
FUND
By:
---------------------------------------
Name:
Title:
KZH RIVERSIDE LLC
By:
---------------------------------------
Name:
Title:
ALLIANCE CAPITAL MANAGEMENT L.P.,
as Manager on behalf of
ALLIANCE CAPITAL FUNDING, L.L.C.,
as Assignee by: ALLIANCE CAPITAL
MANAGEMENT CORPORATION,
General Partner of Alliance Capital
Management L.P.
By:/s/ Xxxxx Van den Bosch
---------------------------------------
Name: Xxxxx Van den Bosch
Title: Assistant Vice President
AMARANTH FUND LP
By:/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Operating Officer
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured
Management Inc. As Portofolio
Advisor
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
HARBOURVIEW CLO IV LTD
By:
---------------------------------------
Name:
Title:
SRS STRATEGIES (CAYMAN) LP
By: Xxxxxxxxx Capital Partners LLC
As its Investment Manager
By:/s/ Xxxxx Xxxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Managing Director
AMARA 2 FINANCE LTD.
By: INVESCO Senior Secured
Management, Inc., as Financial
Manager
By:/s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
AMARA-1 FINANCE LTD.
By: INVESCO Senior Secured
Management, Inc., as Financial
Manager
By:/s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
OASIS COLLATERALIZED HIGH
INCOME PORTFOLIOS-1, LTD.
By: INVESCO Senior Secured
Management Inc., As Subadvisor
By:/s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
AXIS/SRS LIMITED
By: Xxxxxxxxx Capital Partners LLC
As its Sub-Manager
By:/s/ Xxxxx Xxxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Managing Director
Acknowledged by:
CIHC, INCORPORATED
By:/s/ Xxxx X. Xxxxx
------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
SCHEDULE I
Indebtedness
------------------------------------------------------------------------------------- -------------------------------
Indenture Interest Payment Date
------------------------------------------------------------------------------------- -------------------------------
------------------------------------------------------------------------------------- -------------------------------
"Old" 8.75% Senior Notes due February 2004 issued pursuant to the Senior Indenture August 9, 2002
dated November 13, 1997
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"New" 8.75% Guaranteed Senior Notes due August 2006 issued pursuant to the First August 9, 2002
Senior Indenture dated April 24, 2002 (the "New 8.75% Notes")
------------------------------------------------------------------------------------- -------------------------------
------------------------------------------------------------------------------------- -------------------------------
"Old" 6.4% Senior Notes due February 2003 issued pursuant to the Senior Indenture August 12, 2002
dated November 13, 1997
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------------------------------------------------------------------------------------- -------------------------------
"New" 6.4% Guaranteed Senior Notes due February 2004 issued pursuant to the First August 12, 2002
Senior Indenture dated April 24, 2002 (the "New 6.4% Notes", and together with
the New 8.75% Notes, the "New Notes")
------------------------------------------------------------------------------------- -------------------------------
------------------------------------------------------------------------------------- -------------------------------
8.125% Senior Notes due February 2003 issued pursuant to the Senior Indenture dated August 15, 2002
February 18, 1993
------------------------------------------------------------------------------------- -------------------------------
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6.75% FELINE PRIDES due February 2003 August 16, 2002
------------------------------------------------------------------------------------- -------------------------------
SCHEDULE II
CFC Facilities
1. Third Amended and Restated Master Repurchase Agreement between Xxxxxxx
Xxxxx Mortgage Capital Inc. and Green Tree Finance Corp. - Three dated
April 5, 2001, and related documents entered into in connection
therewith.
2. Second Amended and Restated Master Repurchase Agreement between Xxxxxx
Commercial Paper Inc. and Green Tree Finance Corp. - Five dated January
30, 2002, and related documents entered into in connection therewith.
3. Asset Assignment Agreement by and between Xxxxxx Commercial Paper Inc.
and Green Tree Residual Finance Corp. I dated February 13, 1998, and
related documents entered into in connection therewith.
4. Master Repurchase Agreement between Green Tree Residual Finance Corp I
and Xxxxxx Brothers Inc., and related documents entered into in
connection therewith.
5. Master Repurchase Agreement between Credit Suisse First Boston Mortgage
Capital LLC and Green Tree Financial Corp. dated March 26, 1999, and
related documents entered into in connection therewith.
6. Master Repurchase Agreement between Deutsche Banc Sharps Xxxxxx Inc.,
Aspen Funding Corp. and Conseco Financing SP Corp. - Seven dated May 4,
2001, and related documents entered into in connection therewith.
7. Credit Agreement between Conseco Finance Corp. and U.S. Bank National
Association dated as of December 27, 2000, and related documents entered
into in connection therewith.
SCHEDULE III
Indebtedness (with cross-defaults)
1. 10.5% Senior Notes due December 2004 issued pursuant to the First
Supplemental Indenture dated August 31, 1995 (to the Indenture dated
December 15, 1994).
2. "Old" 10.75% Senior Notes due June 2008 issued pursuant to the First
Senior Supplemental Indenture dated June 29, 2001 (to the Senior
Indenture dated November 13, 1997).
3. "New" 10.75% Guaranteed Notes due June 2009 issued pursuant to the First
Senior Supplemental Indenture dated April 24, 2002 (to the Second Senior
Indenture dated April 24, 2002).
