Exhibit 99.5
FORBEARANCE AGREEMENT RELATING TO
1999 D&O LOANS
FORBEARANCE AGREEMENT, dated as of November 22, 2002 (this
"Agreement"), among Conseco, Inc., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial institutions named on the signature pages hereto
(together with their respective successors and assigns, the "Participant Banks")
and JPMorgan Chase Bank., individually and as agent for the Banks referred to
below (the "Agent").
WITNESSETH:
A. WHEREAS, Conseco and the Agent are parties to a Guaranty dated as of
November 22, 2000 (as heretofore amended, the "Conseco Guaranty"), and Conseco,
various financial institutions party thereto (the "Banks") and the Agent are
parties to the Agreement dated as of September 22, 2000, Re 1999 D&O Loans (the
"Refinancing Agreement"), each entered into in connection with the Credit
Agreement dated as of November 22, 2000 (as heretofore amended, the "Credit
Agreement") among the borrowers party thereto (the "Borrowers"), the Banks and
the Agent relating to the refinancing of certain loans under a Termination and
Replacement Agreement dated as of May 30, 2000 among the Borrowers, certain
other borrowers, the Banks and the Agent;
B. WHEREAS, Conseco, 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 Conseco Guaranty and the Refinancing
Agreement, which Forbearance Agreement will, unless terminated earlier,
terminate at 12:01 A.M. New York time on November 27, 2002;
C. WHEREAS, Conseco has advised the Agent and the Banks that, as of the
date hereof, certain defaults (as referred to below, the "Specified Defaults")
have occurred and are continuing or are expected to occur under the Conseco
Guaranty and the Refinancing Agreement; and
D. WHEREAS, Conseco has asked the Agent and the Banks, and the Agent
and the Participant Banks are willing, to forbear from exercising certain
default-related remedies against the Obligors under the Refinancing Agreement,
the Conseco Guaranty and the CIHC Guaranty (together, the "Guaranty Documents")
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
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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 Conseco Guaranty has the
meaning assigned to such term in the Conseco Guaranty (including by reference to
the Credit Agreement).
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 and the aggregate accrued and unpaid interest on the Loans through November
29, 2002 will be as follows:
Principal amount of the Loans
as of November 29, 2002: $141,551,144.28
Accrued and unpaid interest on
the Loans through November 29, 2002: $2,403,493.19
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 acknowledges and agrees that the aggregate accrued and
unpaid Waiver Consideration (as defined in Waiver No. 2 dated as of September 8,
2002 to the Conseco Guaranty and the Refinancing Agreement) through November 29,
2002 (after giving effect to the compounding of interest to occur on such date)
is equal to $966,302.35.
The foregoing amount does not include any Waiver Consideration (other than
Waiver Consideration accrued and unpaid through November 29, 2002) that is
chargeable under the above referenced Waiver No. 2.
(c) 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 Conseco Guaranty and the Refinancing Agreement), including, without
limitation, (i) the failure by the Obligors (as guarantors) to pay interest on
the Loans under the Credit Agreement on October 24, 2002 and December 31, 2002
pursuant to the applicable Guaranty Documents or within the applicable grace
period, (ii) the failure by the Obligors to make the Waiver Consideration (as
defined in Waiver No. 2 dated as of September 8, 2002 entered into in connection
with the Credit Agreement) payment on October 24, 2002, November 29, 2002 and
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December 31, 2002, (iii) the failure by Conseco 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, (iv) the failure by Conseco 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, (v) the failure by
Conseco (and CIHC as guarantor of Conseco's obligations with respect to the New
Notes (as defined in Schedule I) and the Revolving Credit Agreement) 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,
(vi) the failure by the Obligors (as guarantors) to make the interest payment in
respect of the 1998 D&O Credit Agreement and the New Credit Agreements Re D&O
Loans (other than the Credit Agreement) on the applicable interest payment dates
in October 2002 and December 2002 or within any applicable grace periods, (vii)
the failure by the Obligors to make the Waiver Consideration (as defined in each
of the Waivers No. 2 dated as of September 8, 2002 entered into in connection
with the 1998 D&O Credit Agreement and the New Credit Agreements Re D&O Loans
(other than the Credit Agreement)) payments on the applicable dates in October
2002 and on November 29, 2002 and December 31, 2002, (viii) the failure by
Conseco Finance Corp. ("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 (ix) any event 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
are expected to occur on or before December 31, 2002.
(d) Conseco shall, on or prior to November 27, 2002 deliver or cause to
be delivered to Ernst & Young Corporate Finance ("EYCF") and Xxxxxxxxx & Co. LLC
("Xxxxxxxxx") the information listed on Part 1 of Schedule IV hereto, such
information to be in form and substance satisfactory to EYCF and Xxxxxxxxx.
Conseco 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,
Conseco's obligations under this Section 2(d) shall be subject to any duties of
nondisclosure owed to third parties, provided that Conseco 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.
(e) Conseco 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.
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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 Conseco
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.
(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 under any
Guaranty Document other than a Specified Default;
(iii) the failure of Conseco 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 Conseco, 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 Conseco, 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 Conseco 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
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outstanding under such agreements or instruments (including committed
or available amounts thereunder) exceeds $10,000,000;
(v) the making by Conseco or any of its Subsidiaries (other than
Conseco Finance or any of its Subsidiaries), directly or indirectly, of
any Investment (as defined in the Revolving Credit Agreement) 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, Conseco 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 Conseco of a written notice from the Required
Banks (regardless of whether party hereto) advising Conseco (in their
sole discretion) that the forbearance granted in this Agreement is
terminated.
(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/or applicable law, including, without
limitation, their respective rights and remedies in connection with any or all
of the defaults, 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 make a demand upon or exercise other
remedies against any Borrower under the Refinancing Agreement, the Credit
Agreement or otherwise, or 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
against or the giving of any necessary notice to the Borrowers or any other
Person (other than the Obligors) 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
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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 and/or applicable
law in connection with all defaults (including without limitation the Specified
Defaults).
SECTION 4 . Reference to and Effect upon the Guaranty Documents.
(a) Except as expressly set forth herein, all terms, conditions,
covenants, representations and warranties contained in the Guaranty Documents
and each other Loan Document, 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 Guaranty Documents and the other Loan
Documents 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
Guaranty Documents or any other Loan Document, (ii) amend, modify or operate as
a waiver of any provision of the Guaranty Documents or any other Loan Document
or, except as expressly set forth 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 Guaranty Documents
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 the articles of incorporation,
bylaws or other organizational documents of such Obligor, (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 provision of any
law, statute, rule or regulation. 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
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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
each Obligor set forth in the Guaranty Documents are true and correct as though
made on and as of the Forbearance Effective Date (except 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 (ii) other
than the Specified Defaults, no default under any Guaranty Document has occurred
and is continuing.
SECTION 6 . Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of Illinois.
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 7.3 of the
Conseco Guaranty or Section 5.2 of the CIHC Guaranty.
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
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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 Conseco certifying that the representations and warranties made by
Conseco 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 Revolving Credit
Agreement, (b) the Agreement dated September 22, 2000, Re: 1997 D&O Loans, and
(c) the Agreement dated September 22, 2000, Re: 1998 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
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 12.1 of the Credit Agreement,
each Participant Bank agrees that it will not assign all, or any ratable part,
of its Loans or Notes 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
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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, Notes 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
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CIHC, INCORPORATED
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
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JPMORGAN CHASE BANK, as Administrative
Agent and as a Bank
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
SCHEDULE I
Indebtedness
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Indebtedness 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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Loans outstanding under the Revolving Credit Agreement October 17, 2002, October
31, 2002, November 29,
2002, and December 31,
2002
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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 Agreement (the "Agreement") dated
as of __________ __, 200_ by and among the Assignee and _____________ (the
"Assignor") relating to the Credit Agreement dated as of November 22, 2000 (re:
1999 D&O Loans) (as amended) among the borrowers party thereto, various
financial institutions signatory thereto and JPMorgan Chase Bank, 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:
