Exhibit 99.6
FORBEARANCE AGREEMENT RELATING TO
$1,500,000,000 FIVE-YEAR CREDIT AGREEMENT
FORBEARANCE AGREEMENT, dated as of November 22, 2002 (this
"Agreement"), among Conseco, Inc., an Indiana corporation (the "Borrower"),
CIHC, Incorporated, a Delaware corporation ("CIHC" and, together with the
Borrower, the "Obligors"), the financial institutions named on the signature
pages hereto (together with their respective successors and assigns, the
"Participant Banks") and Bank of America, N.A., individually and as agent for
the Banks (the "Agent").
WITNESSETH:
A. WHEREAS, the Borrower, the Participant Banks, certain other
financial institutions and the Agent are parties to a $1,500,000,000 Five-Year
Credit Agreement dated as of September 25, 1998 (as heretofore amended, the
"Credit Agreement");
B. WHEREAS, the Borrower, CIHC, the Agent and certain other financial
institutions are parties to a Forbearance Agreement dated as of October 16, 2002
entered into in connection with the Credit Agreement, which Forbearance
Agreement will, unless terminated earlier, terminate at 12:01 A.M. New York time
on November 27, 2002;
C. WHEREAS, the Borrower has advised the Agent and the Banks that, as
of the date hereof, certain Events of Default (as defined below, the "Specified
Defaults") have occurred and are continuing or are expected to occur under the
Credit Agreement; and
D. WHEREAS, the Borrower has asked the Banks, and the Participant Banks
are willing, to forbear from exercising certain default-related remedies against
the Obligors under the Loan Documents and the CIHC Guaranty on account of the
Specified Defaults for a limited period of time and upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the covenants and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1 . Defined Terms. 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.
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SECTION 2 . Obligor Acknowledgements and Undertakings.
(a) Each Obligor acknowledges and agrees that the aggregate principal
amount of the outstanding Loans under the Credit Agreement as of November 29,
2002 (prior to giving effect to any capitalization of interest to occur on such
date (the "Interest Capitalization")) and the aggregate accrued and unpaid
interest on the Loans through November 29, 2002 (prior to giving effect to the
Interest Capitalization) will be as follows:
Principal amount of the Loans
as of November 29, 2002 (prior to
giving effect to the Interest Capitalization): $1,519,262,617.86
Accrued and unpaid interest
on the Loans through November
29, 2002 (prior to giving effect to
the Interest Capitalization): $12,122,741.68
The foregoing amounts do not include unpaid interest, fees, expenses and other
amounts (other than accrued and unpaid interest on the Loans through November
29, 2002) that are chargeable or otherwise reimbursable under the Loan
Documents.
(b) Each Obligor agrees and acknowledges that Events of Default under
clauses (a), (c) and (e) of Article 5 of the Appendix (incorporated by reference
into the Credit Agreement), including, without limitation, (i) the failure by
the Borrower (and CIHC as guarantor) to pay interest on the Loans on October 17,
2002, October 31, 2002, November 29, 2002 and December 31, 2002 or within the
applicable grace period, (ii) the failure by the Borrower to comply with the
financial covenant set forth in Section 4.13 of the Appendix as of June 30,
2002, September 30, 2002 and December 31, 2002, (iii) the failure by the
Borrower to comply with the financial covenants set forth in Sections 4.14, 4.15
and 4.16 of the Appendix as of September 30, 2002 and December 31, 2002, (iv)
the failure by the Borrower (and CIHC as guarantor of the Borrower's obligations
with respect to the New Notes (as defined in Schedule I)) to make the interest
payment (and, in the case of the October 2002 Notes (as defined in Schedule I),
to repay the principal amount) 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,
(v) the failure by the Obligors (as guarantors) to make the interest payments in
respect of the D&O Facilities on the applicable interest payment dates in
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October 2002 and December 2002 or within any applicable grace period, (vi) the
failure by the Obligors to make the Waiver Consideration (as defined in each of
the Waivers No. 2 dated as of October 16, 2002 entered into in connection with
the D&O Facilities) payments in respect of the D&O Facilities on the applicable
date in October 2002 and on November 29, 2002 and December 31, 2002, (vii) the
failure by Conseco Finance to pay when due in November 2002 or December 2002 any
or all amounts payable by it in its capacity as guarantor to holders of
asset-backed securities and (viii) Events of Default under clause (e) of the
Appendix solely as a result of any of the foregoing constituting a default under
any other Indebtedness (collectively, the "Specified Defaults"), constitute
material Events of Default that have occurred and are continuing or may occur on
or before December 31, 2002.
(c) The Borrower shall, on or prior to November 27, 2002 deliver or
cause to be delivered to Ernst & Young Corporate Finance ("EYCF") and Xxxxxxxxx
& Co. LLC ("Greenhill") the information listed on Part 1 of Schedule IV hereto,
such information to be in form and substance satisfactory to EYCF and Xxxxxxxxx.
The Borrower shall, on an ongoing basis, promptly upon the preparation or
receipt thereof, deliver or cause to be delivered to EYCF and Xxxxxxxxx the
information listed on Part 2 of Schedule IV hereto, such information to be in
form and substance satisfactory to EYCF and Xxxxxxxxx. Notwithstanding the
foregoing, the Borrower's obligations under this Section 2(c) shall be subject
to any duties of nondisclosure owed to third parties, provided that the Borrower
shall use its commercially reasonable efforts to include in any nondisclosure or
similar agreement entered into with any third party hereafter the right to
disclose all relevant information to EYCF and Xxxxxxxxx.
(d) The Borrower shall, promptly upon obtaining knowledge thereof,
notify the Agent and the Banks in writing of the occurrence of any event or
condition described in clauses (ii), (iii), (iv) or (v) of Section 3(b) below.
SECTION 3 . Forbearance.
(a) The Agent and the Participant Banks agree that until the expiration
of the Forbearance Period (as defined below), the Agent and the Participant
Banks will temporarily forbear from the exercise of their default-related
remedies against the Obligors solely to the extent the availability of such
remedies arises exclusively from the Specified Defaults; provided that the
Borrower shall comply during the Forbearance Period with all provisions,
limitations, restrictions or prohibitions that would otherwise be effective or
applicable under any of the Loan Documents during the continuance of any Default
or Event of Default.
(b) As used herein, "Forbearance Period" means the period beginning on
the date hereof and ending on the earliest to occur of (any such occurrence
being a "Termination Event"):
(i) 12:01 A.M. (New York time) on January 11, 2003;
(ii) the occurrence of any Default or Event of Default other than
a Specified Default;
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(iii) the failure of the Borrower to perform the covenants and
agreements contained in this Agreement in accordance with their terms;
(iv) 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 in respect
of such Indebtedness or obligation or 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 constitute a
Termination Event 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
forbearance granted in this Agreement will not be rescinded 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 constitute a Termination Event 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;
(v) 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
(vi) receipt by the Borrower of a written notice from the
Required Banks (regardless of whether party hereto) advising the
Borrower (in their sole discretion) that the forbearance granted in
this Agreement is terminated.
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(c) Upon a Termination Event, the agreement of the Agent and the
Participant Banks hereunder to forbear from exercising their default-related
remedies shall immediately terminate without the requirement of any demand,
presentment, protest or notice of any kind, all of which each Obligor waives.
Each Obligor agrees that the Agent and the Banks may at any time thereafter
proceed to exercise any and all of their respective rights and remedies under
any or all of the Loan Documents and the CIHC Guaranty and/or applicable law,
including, without limitation, their respective rights and remedies in
connection with any or all of the Defaults and Events of Default, including,
without limitation, the Specified Defaults. For the avoidance of doubt, nothing
herein limits the right of the Agent or the Banks, including during the
Forbearance Period, to take any action to preserve or exercise rights or
remedies against parties other than the Obligors ("Third Party Rights"). For
purposes of the foregoing, the Obligors acknowledge and agree that execution and
delivery of this Agreement shall constitute the making of any necessary demand
or the giving of any necessary notice for purposes of preserving and/or
permitting the exercise of any such Third Party Rights of the Agent and the
Banks.
(d) Execution of this Agreement constitutes a direction by the
Participant Banks that the Agent act in accordance with its terms.
(e) Each Obligor acknowledges and agrees that the agreement of the
Agent and the Participant Banks hereunder to forbear from exercising their
default-related remedies with respect to the Specified Defaults shall not
constitute a waiver of such Specified Defaults and that the Agent and the Banks
expressly reserve all rights and remedies that the Agent and the Banks now or
may in the future have under any or all of the Loan Documents, the CIHC Guaranty
and/or applicable law in connection with all Defaults and Events of Default
(including without limitation the Specified Defaults).
SECTION 4 . Reference to and Effect upon the Credit Agreement.
(a) Except as expressly set forth herein, all terms, conditions,
covenants, representations and warranties contained in the Credit Agreement, any
other Loan Document and the CIHC Guaranty, and all rights of the Agent and the
Banks and all obligations of the Obligors thereunder, shall remain in full force
and effect. Each Obligor hereby confirms that the Credit Agreement, the other
Loan Documents and the CIHC Guaranty are in full force and effect.
(b) Except as expressly provided herein, nothing contained in this
Agreement and no action by, or inaction on the part of, any Bank or the Agent
shall, or shall be deemed to, directly or indirectly (i) constitute a consent to
or waiver of any past, present or future violations of any provisions of the
Credit Agreement, any other Loan Document or the CIHC Guaranty, (ii) amend,
modify or operate as a waiver of any provision of the Credit Agreement, any
other Loan Document or the CIHC Guaranty or, except as expressly set forth
5
herein, of any right, power or remedy of the Agent or any Bank thereunder or
(iii) constitute a course of dealing or other basis for altering any obligations
of any Obligor under the Loan Documents, the CIHC Guaranty or any other contract
or instrument.
(c) This Agreement shall constitute a Loan Document.
SECTION 5 . Representations and Warranties. To induce the Agent and the
Participant Banks to execute and deliver this Agreement, each Obligor represents
and warrants that:
(a) The execution, delivery and performance by each Obligor of this
Agreement have been duly authorized by all necessary corporate action, and do
not and will not (i) contravene the terms of any of such Obligor's Organization
Documents, (ii) conflict with or result in any breach or contravention of, or
the creation of any Lien under, any document evidencing any Contractual
Obligation to which such Obligor is a party or any order, injunction, writ or
decree of any Governmental Authority to which such Obligor or its property is
subject or (iii) violate any Requirement of Law. This Agreement constitutes the
legal, valid and binding obligations of each Obligor, enforceable against such
Obligor in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
(b) No approval, consent, exemption, authorization, or other action by,
or notice to, or filing with, any Governmental Authority is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, any Obligor of this Agreement.
(c) On and as of the Forbearance Effective Date (as defined below) and
after giving effect to this Agreement, (i) the representations and warranties of
the Borrower set forth in the Loan Documents are true and correct as though made
on and as of the Forbearance Effective Date (except (1) to the extent a
representation or warranty references a specific date, in which case, such
representation or warranty is true and correct as of such date and (2) that, for
purposes of this Section 5(c)(i), (A) the reference in Section 5.05 of the
Credit Agreement to "September 1, 2000" shall be read to be a reference to
"September 1, 2002" and (B) the reference in Section 5.16 of the Credit
Agreement to "the First Amendment" shall be read as a reference to "this
Agreement") and (ii) other than the Specified Defaults, no Default or Event of
Default has occurred and is continuing.
SECTION 6 . Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of Illinois.
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SECTION 7 . Counterparts. This Agreement 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 8 . Severability. The invalidity, illegality or
unenforceability of any provision in or obligation under this Agreement in any
jurisdiction shall not affect or impair the validity, legality or enforceability
of the remaining provisions or obligations under this Agreement or of such
provision or obligation in any other jurisdiction.
SECTION 9 . Further Assurances. Each Obligor agrees to take all further
actions and execute all further documents as the Agent may from time to time
reasonably request to carry out the transactions contemplated by this Agreement.
SECTION 10 . Notices. All notices, requests and demands to or upon the
respective parties hereto shall be given in accordance with Section 10.02 of the
Credit Agreement.
SECTION 11 . Effectiveness. This Agreement shall become effective as of
the date hereof on the date (the "Forbearance Effective Date") when the
following conditions are satisfied:
(i) the Agent shall have received from each of the Obligors 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;
(ii) the Agent shall have received a certificate of the chief operating
officer of the Borrower certifying that the representations and warranties made
by the Borrower pursuant to Section 5 of this Agreement are true and correct on
and as of the date of this Agreement; and
(iii) 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 entered into forbearance agreements thereunder on
terms substantially similar to those contained herein.
SECTION 12 . Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
7
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 13 . No Third Party Beneficiaries. This Agreement shall be
binding upon and inure to the benefit of each Obligor, the Agent and the Banks
and their respective successors and assigns; provided that the Banks (other than
the Participant Banks and their respective successors and assigns) shall not be
bound by the forbearance granted hereunder. No Person other than the parties
hereto and any other Bank and their successors and assigns shall have any rights
hereunder or be entitled to rely on this Agreement, and all third-party
beneficiary rights (other than the rights of any other Bank and its successors
and assigns) are hereby expressly disclaimed.
SECTION 14 . Limitation on Assignments. In addition to, and without
limiting, the requirements set forth in Section 10.08 of the Credit Agreement,
each Participant Bank agrees that it will not assign all, or any ratable part,
of its Loans, Commitments or other rights or obligations under the Loan
Documents to any Person (other than a Participant Bank) unless such Person shall
have agreed to be bound by this Forbearance Agreement (including the forbearance
granted hereunder) by executing a consent substantially in the form attached
hereto as Exhibit A. Each Participant Bank agrees that, notwithstanding anything
to the contrary in the Credit Agreement, the Agent shall be entitled to withhold
its consent to, and shall not be required to give effect to, any purported
assignment of such Participant Bank's Loans, Commitments or other rights or
obligations under the Loan Documents if the conditions set forth in the previous
sentence are not satisfied.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
CONSECO, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
9
CIHC, INCORPORATED
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
1
BANK OF AMERICA, N.A., as Administrative
Agent and as a Bank
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxxxx 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 X. XxXxxxxxx
-------------------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Senior Managing Director
DEUTSCHE BANK AG, New York and/or Cayman Island
Branches
By: /s/ Xxxxxx X. Xxxx, Xx.
-------------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Director
By: /s/ Xxxx X. Xxxxx
-------------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
Head of Workout
SILVER OAK CAPITAL LLC
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
XXXXX TRADING
By:
-------------------------------------------
Name:
Title:
SHEPHERDS INVESTMENTS INT'L LTD.
By:
-------------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ W. Xxxxxx XxXxxxxxx
-------------------------------------------
Name: W. Xxxxxx XxXxxxxxx
Title: Duly Authorized Signatory
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By: /s/ Xxxx Xxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxx
Title:
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:
-------------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
SOCIETE GENERALE
By:
-------------------------------------------
Name:
Title:
XXXXXXX XXXXX CREDIT PARTNERS LP
By:
-------------------------------------------
Name:
Title:
COMERICA BANK
By:
-------------------------------------------
Name:
Title:
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:
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title:
PERRY PRINCIPALS, LLC
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Managing Director
KEYBANK NA
By:
-------------------------------------------
Name:
Title:
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: /s/ X. Xxxx XX
-------------------------------------------
Name: X. Xxxx XX
Title: Director
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: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President - CFO
Highland Capital Management, L.P.
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/ Xxxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxx
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/ Xxxx Xxxx
-------------------------------------------
Name: Xxxx Xxxx
Title: Sr. Vice President
ML CBO IV CAYMAN LTD.
By: Highland Capital Management, L.P.
As Collateral Manager
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President - CFO
Highland Capital Management, L.P.
NATIONAL CITY BANK OF INDIANA
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.
As Collateral Manager
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President - CFO
Highland Capital Management, L.P.
PRESIDENT & FELLOWS OF HARVARD
By:
-------------------------------------------
Name:
Title:
DE SHAW LAMINAR PORTFOLIOS LLC
By:
-------------------------------------------
Name:
Title:
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 Advisor
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
HARBOURVIEW CDO II LTD
By:
-------------------------------------------
Name:
Title:
THE VARDE FUND V LP
By: Varde Fund GPLLC, its General Partner
By: Varde Partners, L.P., its General Partner
By: Varde Partners, Inc., its General Partner
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY
By: Xxxxx Xxx & Farnham Incorporated, As Advisor
By: /s/ Xxxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President
XXXXXX XXXXXXX EMERGING MARKETS INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
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/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
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 FLOATING RATE ADVANTAGE FUND
By: Xxxxx Xxx & Xxxxxxx Incorporated, As Advisor
By: /s/ Xxxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President
MARINER OPPORTUNITIES II LP
By: /s/ X. Xxxx XX
-------------------------------------------
Name: X. Xxxx XX
Title: Treasurer
NEWSTART FACTORS INC.
By:
-------------------------------------------
Name:
Title:
ALLIANCE CAPITAL FUNDING LLC
By:
-------------------------------------------
Name:
Title:
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management, Inc.
as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM
By: Highland Capital Management, L.P. as
Authorized Representatives of the Board
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President - CFO
Highland Capital Management, X.X.
XXXXXX PARTNERS
By:
-------------------------------------------
Name:
Title:
SRS STRATEGIES (CAYMAN) LP
By:
-------------------------------------------
Name:
Title:
AMARA 2 FINANCE LTD.
By: INVESCO Senior Secured Management, Inc., as
Financial Manager
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
AMARA-1 FINANCE LTD.
By: INVESCO Senior Secured Management, Inc., as
Financial Manager
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
OASIS COLLATERALIZED HIGH INCOME
PORTFOLIOS-1, LTD.
By: INVESCO Senior Secured Management Inc., As
Subadvisor
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
OCM ADMINISTRATIVE SERVICES II LLC
By:
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Name:
Title:
AXIS SRS LIMITED
By:
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Name:
Title:
TRS ELARA
By:
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Name:
Title:
STATE OF SOUTH DAKOTA RETIREMENT SYSTEM FUND
By:
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Name:
Title:
HIGHLAND CRUSADER OFFSHORE PARTNERS LPI
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Executive Vice President - CFO
Highland Capital Management, L.P.
SPCP GROUP LLC
By: /s/ Xxxxxx X. Mule
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Name: Xxxxxx X. Mule
Title: Principal
FIR TREE VALUE PARTNERS LDC
By:
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Name:
Title:
AXIS SRS LIMITED
By:
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Name:
Title:
SCHEDULE I
Indebtedness
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Indenture Payment Date
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"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")
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"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")
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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 and November
16, 2002
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"Old" 8.5% Senior Notes due October 2002 issued pursuant to the Senior Indenture October 15, 2002
dated November 13, 1997 (the "October 2002 Notes")
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"New" 8.5% Guaranteed Senior Notes due October 2003 issued pursuant to the First October 15, 2002
Senior Indenture dated April 24, 2002 (the "New 8.5% Notes")
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"Old" 9.0% Senior Notes due October 2006 issued pursuant to the Senior Indenture October 15, 2002
dated November 13, 1997
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"New" 9.0% Guaranteed Senior Notes due April 2008 issued pursuant to the First October 15, 2002
Senior Indenture dated April 24, 2002 (the "New 9.0% Notes",
and together with the New 8.75% Notes, the New 6.4% Notes and the New 8.5%
Notes, the "New Notes")
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9.16% Subordinated Deferrable Interest Debentures due 2026 issued pursuant to the September 30, 2002
Subordinated Indenture dated November 14, 1996
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8.70% Subordinated Deferrable Interest Debentures due 2026 issued pursuant to the November 15, 2002
Subordinated Indenture dated November 14, 1996
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8.796% Subordinated Deferrable Interest Debentures due 2027 issued pursuant to the October 1, 2002
Subordinated Indenture dated November 14, 1996
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8.70% Subordinated Deferrable Interest Debentures due 2028 issued pursuant to the September 30, 2002
Subordinated Indenture dated November 14, 1996
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9.00% Subordinated Deferrable Interest Debentures due 2028 issued pursuant to the September 30, 2002
Subordinated Indenture dated November 14, 1996
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9.44% Subordinated Deferrable Interest Debentures due 2029 issued pursuant to the September 30, 2002
Subordinated Indenture dated November 14, 1996
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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. 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).
4. "Old" 6.8% Senior Notes due June 2005 issued pursuant to the Senior
Indenture dated November 13, 1997
5. "New" 6.8% Guaranteed Senior Notes due June 2007 issued pursuant to the
First Senior Indenture dated April 24, 2002
SCHEDULE IV
Information to be delivered to EYCF and Xxxxxxxxx
Part 1:
1. Statutory carrying value of portfolio items listed on the 3Q write down
sheet as a percentage of par value
2. Review and analysis of how the monthly cash flow models for Conseco
Services LLC and American Life Marketing Group flow into Conseco, Inc.
3. Rollup of 2002 cash flows specifically as it relates to the termination
of the Hawthorne Agreement as provided in the business plan
4. Quarterly (or, if not available, annual) cash flow statement that
corresponds to the new statutory model (Scenario B)
5. Investment portfolio as of September 30, 2002 including a calculation
of unrealized losses
6. Update of Conseco Finance Corp., including, but not limited to, the
following:
o potential sale update, including any guidelines provided to
potential buyers, list of signed confidentiality agreements, list
of potential buyers performing due diligence, copy of any letter
of intent and copy of any offers (unless subject to a
non-disclosure agreement, in which case a summary will be
provided)
o recent and projected operating metrics (by product line)
7. Claim balances by class of claim as provided in the most recent
restructuring term sheet produced by Conseco, Inc.
8. List of executory contracts for Conseco, Inc. and CIHC
Part 2:
1. Daily and weekly cash balance updates with respect to each of the
following entities:
i. Conseco, Inc.,
ii. CCM, Services,
iii. other non-CIHC and non-insurance entities,
iv. CIHC (stand alone), and
v. CIHC (consolidated but excluding insurance entities)
2. Weekly NAP/Surrender trends
3. Detailed update of Conseco Finance Corp., including, but not limited
to, the following:
o daily and weekly liquidity schedule
o business plan / strategic plan
o potential sale update, including any guidelines provided to
potential buyers, list of signed confidentiality agreements, list
of potential buyers performing due diligence, copy of any letter
of intent and copy of any offers (unless subject to a
non-disclosure agreement, in which case a summary will be
provided)
4. Any additional information reasonably requested by EYCF or Xxxxxxxxx
regarding the business, financial or corporate affairs of Conseco or
any Subsidiary
EXHIBIT A
CONSENT RELATING TO FORBEARANCE AGREEMENT
This CONSENT is made as of __________ __, 200_ by _____________ (the
"Assignee") in connection with the Assignment and Acceptance Agreement (the
"Agreement") dated as of __________ __, 200_ by and among the Assignee and
_____________ (the "Assignor") relating to the Five-Year Credit Agreement dated
as of September 25, 1998 (as amended) among Conseco, Inc., various financial
institutions signatory thereto and Bank of America, N.A., as Agent. Capitalized
terms used but not defined herein shall have the meaning ascribed to such terms
in the Agreement.
The Assignee acknowledges that the Assignor is a party to a Forbearance
Agreement dated as of November 22, 2002 (the "Forbearance Agreement") entered
into in connection with the Credit Agreement (a copy of which Forbearance
Agreement is available from the Agent upon request). The Assignee further
acknowledges and agrees that by executing this Consent and delivering it to the
Agent, the Assignee will thereupon become bound by the provisions of the
Forbearance Agreement and will thereafter be subject to all of the obligations
of a "Participant Bank" thereunder as fully as if the Assignee were a
"Participant Bank" thereunder.
This Consent shall be governed by and construed in accordance with the
laws of Illinois.
IN WITNESS WHEREOF, the undersigned has executed this Consent as of the
date first above written.
[ASSIGNEE]
By:
--------------------------
Name:
Title:
