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EXHIBIT 10.D
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT (this "Agreement"), dated as of December 27,
1999, among Conseco, Inc., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC"), Conseco Finance Corp., a Delaware
corporation ("Conseco Finance"), and CFIHC, Inc., a Delaware corporation
("Holding").
PRELIMINARY STATEMENT
WHEREAS, Conseco is the owner, beneficially and of record, of all of
the issued and outstanding capital stock of Conseco Finance and CIHC and will
receive substantial benefit from the transactions contemplated hereby;
WHEREAS, Conseco Finance is the owner, beneficially and of record,
of all of the issued and outstanding capital stock of Holding and will receive
substantial benefit from the transactions contemplated hereby;
WHEREAS, Conseco and CIHC each desires to convey to Conseco Finance
certain assets, and Conseco Finance desires to receive from each such party
these certain assets, in an exchange described in Section 351 of the Internal
Revenue Code of 1986, as amended (the "Code") subject to all of the terms and
conditions set forth herein;
WHEREAS, Conseco Finance desires to issue common stock to Conseco
and CIHC;
WHEREAS, Conseco Finance desires to contribute, immediately after
the contribution of the assets from Conseco and CIHC to Conseco Finance, such
assets to Holding as a contribution to the capital of Holdings; and
WHEREAS, Holding desires to receive such contribution from Conseco
Finance.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, it is hereby agreed among Conseco, CIHC,
Conseco Finance and Holding as follows:
ARTICLE I
CONTRIBUTION
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1.1. Conseco's Contribution. Upon the terms of this Agreement and in
consideration for the Conseco Finance Stock (as hereinafter defined) issued
pursuant to Article II, at the First Closing (as hereinafter defined), Conseco
shall contribute, transfer, assign, convey and deliver to Conseco Finance, and
Conseco Finance shall acquire from Conseco, all right, title and
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interest of Conseco in, to and under the assets listed on Annex I hereto (herein
collectively called the "Contributed Conseco Assets").
1.2. CIHC's Contribution. Upon the terms of this Agreement and in
consideration for the Conseco Finance Stock issued pursuant to Article II, at
the First Closing, CIHC shall contribute, transfer, assign, convey and deliver
to Conseco Finance, and Conseco Finance shall acquire from CIHC, all right,
title and interest of CIHC in, to and under the assets listed on Annex II hereto
(herein collectively called the "Contributed CIHC Assets").
1.3. Conseco Finance's Contribution. Upon the terms of this
Agreement, at the Second Closing (as hereinafter defined), CIHC shall
contribute, transfer, assign, convey and deliver to Holding, and Holding shall
acquire from Conseco Finance, all right, title and interest of Conseco Finance
in, to and under the Contributed Conseco Assets and the Contributed CIHC Assets.
ARTICLE II
ISSUANCE OF CONSECO FINANCE STOCK
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2.1. Stock Issuance to Conseco. Subject to the terms of this
Agreement, at the First Closing, Conseco Finance shall issue to Conseco, in
consideration for the assets contributed pursuant to Article I by Conseco, 1.5
validly issued, fully paid and nonassessable shares of common stock, par value
$0.01 per share, of Conseco Finance ("Conseco Finance Stock").
2.2. Stock Issuance to CIHC. Subject to the terms of this Agreement,
at the First Closing, Conseco Finance shall issue to CIHC, in consideration for
the assets contributed pursuant to Article I by CIHC, 3.6 validly issued, fully
paid and nonassessable shares of Conseco Finance Stock.
ARTICLE III
CLOSING
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3.1. Closings. The closing (the "First Closing") of the transfer of
the Contributed Conseco Assets and Contributed CIHC Assets to Conseco Finance
shall be consummated at 3:00 P.M., local time, on December 27, 1999 at the
offices of Conseco, Carmel, Indiana, or at such other place or at such other
time as shall be agreed upon by Conseco, CIHC, Conseco Finance and Holding. The
closing (the "Second Closing" and, together with the First Closing, the
"Closings") of the transfer of the Contributed Conseco Assets and the
Contributed CIHC Assets to Holding shall be consummated immediately after the
First Closing at the offices of Conseco, Carmel, Indiana or at such other place
as the First Closing occurs.
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3.2. Conseco's Deliveries. At the First Closing, Conseco shall
deliver to Conseco Finance (a) an Instrument of Contribution duly executed by
Conseco and (b) such other instruments of transfer or conveyance as Conseco
Finance may reasonably request or as may be otherwise necessary to evidence or
effect the assignment, transfer, conveyance and delivery of the Contributed
Conseco Assets to Conseco Finance. In addition to the foregoing deliveries,
Conseco shall take all steps and actions as Conseco Finance may reasonably
request or as may otherwise be necessary to put Conseco Finance in actual
possession or control of the Contributed Conseco Assets.
3.3. CIHC's Deliveries. At the First Closing, CIHC shall deliver to
Conseco Finance (a) an Instrument of Contribution duly executed by CIHC and (b)
such other instruments of transfer or conveyance as Conseco Finance may
reasonably request or as may be otherwise necessary to evidence and effect the
assignment, transfer, conveyance and delivery of the Contributed CIHC Assets to
Conseco Finance. In addition to the foregoing deliveries, CIHC shall take all
steps and actions as Conseco Finance may reasonably request or as may otherwise
be necessary to put Conseco Finance in actual possession or control of the
Contributed CIHC Assets.
3.4. Conseco Finance's Deliveries. (a) At the First Closing, Conseco
Finance shall deliver
(i) to Conseco, a certificate representing 1.5 shares of
Conseco Finance Stock duly registered in the name of Conseco;
(ii) to CIHC, a certificate representing 3.6 shares of Conseco
Finance Stock, duly registered in the name of CIHC; and
(b) At the Second Closing, Conseco Finance shall deliver to Holding (a) an
Instrument of Contribution duly executed by Conseco Finance and (b) such other
instruments of transfer or conveyance as Holding may reasonably request or as
may be otherwise necessary to evidence and effect the assignment, transfer,
conveyance and delivery of the Contributed Conseco Assets and the Contributed
CIHC Assets to Holding. In addition to the foregoing deliveries, Conseco Finance
shall take all steps and actions as Holding may reasonably request or as may
otherwise be necessary to put Holding in actual possession or control of the
Contributed Conseco Assets and the Contributed CIHC Assets.
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ARTICLE IV
GENERAL PROVISIONS
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4.1. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their successors and assigns.
The successors and assigns hereunder shall include, without limitation, any
successor in interest to any assignee or any subsequent assignee (whether by
merger, liquidation (including successive mergers or liquidations) or
otherwise). Nothing in this Agreement, expressed or implied, is intended or
shall be construed to confer upon any person or entity other than the parties
and successors and assigns permitted by this Section 4.1 any right, remedy or
claim under or by reason of this Agreement.
4.2. Entire Agreement; Amendments. This Agreement and the Exhibits
and Annexes referred to herein and the documents delivered pursuant hereto
contain the entire understanding of the parties hereto with regard to the
subject matter contained herein or therein, and supersede all prior agreements,
understandings or letters of intent between or among any of the parties hereto.
This Agreement shall not be amended, modified or supplemented except by a
written instrument signed by an authorized representative of each of the parties
hereto.
4.3. Interpretation. Article titles and headings to sections herein
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement. The Exhibits
and Annexes referred to herein shall be construed with and as an integral part
of this Agreement to the same extent as if they were set forth verbatim herein.
4.4. Partial Invalidity. Wherever possible, each provision hereof
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
4.5. Execution in Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be considered an original
instrument, but all of which shall be considered one and the same agreement, and
shall become binding when one or more counterparts have been signed by each of
the parties hereto and delivered to each of Conseco, CIHC, Conseco Finance and
Holding.
4.6. Further Assurances. At the First Closing or Second Closing, as
applicable, Conseco, CIHC and Conseco Finance shall (i) deliver to Conseco
Finance or Holding, as applicable, such other bills of sale, deeds,
endorsements, assignments and other good and sufficient instruments of
conveyance and transfer, in form reasonably satisfactory to Conseco Finance or
Holding, as Conseco Finance or Holding may reasonably request or as may be
otherwise reasonably necessary to vest in Conseco Finance or Holding, as the
case may be, all the right, title and interest of Conseco, CIHC and Conseco
Finance in, to or under any or all of the Contributed Conseco Assets and the
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Contributed CIHC Assets and (ii) take all steps as may be reasonably necessary
to put Conseco Finance or Holding, as applicable, in actual possession and
control of all the Contributed Conseco Assets and the Contributed CIHC Assets.
From time to time following the Closings, Conseco, CIHC and Conseco Finance
shall execute and deliver, or cause to be executed and delivered, to Conseco
Finance or Holding, as the case may be, such other instruments of conveyance and
transfer as Conseco Finance or Holding may reasonably request or as may be
otherwise necessary to more effectively convey and transfer to, and vest in,
Holding and put Holding in possession of, any part of the Contributed Conseco
Assets and the Contributed CIHC Assets.
4.7. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws (as opposed to the conflicts of
law provisions) of the State of Indiana.
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IN WITNESS WHEREOF, the parties hereto have caused this Contribution
Agreement to be executed as of the day and year first above written.
CONSECO, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
CIHC, INCORPORATED
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice President
CONSECO FINANCE CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
CFIHC, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President
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ANNEX I
(i) 100 shares of the common stock, no par value per share, of Conseco
Private Capital Group Inc., an Indiana corporation, constituting all of
the issued and outstanding stock of such corporation.
(ii) 100 shares of the common stock, no par value per share, of Conseco
Mortgage Capital, Inc., a Delaware corporation, constituting all of the
issued and outstanding stock of such corporation.
(iii) 3,000 shares of the common stock, no par value per share, of Marketing
Distribution Systems Consulting Group, Inc., a Delaware corporation,
constituting all of the issued and outstanding stock of such corporation.
(iv) All of its beneficial interest in the Floating Rate Certificates in the
aggregate stated amount of $3,219,000 in the Brickyard Loan Trust, a
business trust formed under the laws of Delaware pursuant to the Trust
Agreement dated as of March 31, 1998 among Conseco, Inc. and Life Re
Corporation, as Initial Certificate owners, and Chase Manhattan Bank
Delaware, as Trustee.
(v) All of its membership interest in Official Starter, LLC, a Delaware
limited liability company pursuant to an Operating Agreement dated July
28, 1999, constituting a 15.08% membership interest in such limited
liability company.
(vi) Promissory Note dated December 23, 1999 of Consumer Acceptance
Corporation.
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ANNEX II
(i) 100 shares of the common stock, par value $0.001 per share, of Conseco
Global Investments, Inc., a Delaware corporation, constituting all of
the issued and outstanding stock of such corporation.
(ii) All right, title and interest to the proceeds from the sale of certain
real estate by CNC Real Estate Inc., a Delaware corporation.
(iii) 1,000 shares of the common stock, par value $1.00 per share, of
Performance Matters Associates, Inc., a Delaware corporation,
constituting all of the issued and outstanding stock of such
corporation.
(iv) Replacement Promissory Note dated December 9, 1999 of Consumer
Acceptance Corporation.
(v) 12% Subordinated Convertible Replacement Note dated April 20, 1998 of
Consumer Acceptance Corporation in the amount of $3,250,000.
(vi) 12% Subordinated Convertible Replacement Note dated April 20, 1999 of
Consumer Acceptance Corporation in the amount of $1,500,000.
(vii) Subordinated Convertible Note dated April 11, 1997 of Consumer
Acceptance Corporation in the amount of $10,000,000.
(viii) Subordinated Convertible Debenture dated September 12, 1996 of NAL
Financial Group, Inc in the amount of $2,250,000.
(ix) Subordinated Convertible Debenture dated September 12, 1996 of NAL
Financial Group, Inc in the amount of $2,750,000.
(x) 9% Subordinated Convertible Debenture dated November 30, 1995 of NAL
Financial Group, Inc in the amount of $1,250,000.
(xi) 9% Subordinated Convertible Debenture dated July 14, 1995 of NAL
Financial Group, Inc in the amount of $1,000,000.
(xii) 9% Subordinated Convertible Debenture dated July 28, 1995 of NAL
Financial Group, Inc in the amount of $1,000,000.
(xiii) 9% Subordinated Convertible Debenture dated August 22, 1995 of NAL
Financial Group, Inc in the amount of $1,000,000.
(xiv) 9% Subordinated Convertible Debenture dated July 29, 1996 of NAL
Financial Group, Inc in the amount of $2,500,000.
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(xv) Federal National Mortgage Association Pool #00708 (cusip #00000XXX0) in
the original face amount of $13,092,291.
(xvi) All of its beneficial interest in the Junior Certificate in the stated
amount of $4,608,000 in the Loan Finance Investment Trust 98-1, a
business trust formed under the laws of Delaware pursuant to the Trust
Agreement dated as of December 11, 1998 by and amount BSCSIX, Inc., as
Depositor, The Bank of New York, as Trustee, and the Bank of New York
(Delaware), as Delaware Trustee, as amended.
(xvii) All of its beneficial interest in the Junior Certificate in the stated
amount of $5,996,000 in the Xxxxxxx Collateral Trust, a business trust
formed under the laws of Delaware pursuant to the Trust Agreement dated
as of December 11, 1998 by and amount BSCSIX, Inc., as Depositor, The
Bank of New York, as Trustee, and the Bank of New York (Delaware), as
Delaware Trustee, as amended.
(xviii) All of its beneficial interest in the Junior Certificate in the stated
amount of $5,540,000 in the Zenith Strategic Income Trust, a business
trust formed under the laws of Delaware pursuant to the Trust Agreement
dated as of December 11, 1998 by and amount BSCSIX, Inc., as Depositor,
The Bank of New York, as Trustee, and the Bank of New York (Delaware),
as Delaware Trustee, as amended.
(xix) All of its beneficial interest in the Participation Agreement dated
December 22, 1998 between CIHC and Conseco Finance Servicing
Corporation (formerly Green Tree Financial Servicing Corporation)
relating to a note from Environmental Systems.
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