Exhibit 4.31.15
FORBEARANCE AGREEMENT RELATING TO
$1,500,000,000 FIVE-YEAR CREDIT AGREEMENT
FORBEARANCE AGREEMENT, dated as of October 16, 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 (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 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
C. 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; 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 . 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 October 17,
1
2002 and the aggregate accrued and unpaid interest on the Loans through October
17, 2002 will be as follows:
Principal amount of the Loans
as of October 17, 2002: $1,493,275,217.39
Accrued and unpaid interest on
the Loans through October 17, 2002: $23,365,185.16
The foregoing amounts do not include unpaid interest, fees, expenses and other
amounts (other than accrued and unpaid interest on the Loans through October 17,
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 and October 31, 2002 pursuant to Section 2.12(b) of the Credit Agreement or
within the applicable grace period, (ii) the failure by the Borrower to comply
with the financial covenants set forth in Section 4.13 of the Appendix as of
June 30, 2002 and September 30, 2002, (iii) 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, (iv) the failure by the Obligors (as
guarantors) to make the interest payment in respect of the D&O Facilities on the
applicable interest payment dates in October 2002 or within any applicable grace
period and (v) 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 are expected to occur on or
before October 31, 2002.
(c) The Borrower shall, on or prior to October 18, 2002 (or, in the
case of the Milliman Information (as defined in Schedule IV hereto) October 22,
2002), deliver or cause to be delivered to Ernst & Young Corporate Finance
("EYCF") the information listed on Part 1 of Schedule IV hereto, such
information to be in form and substance satisfactory to EYCF. The Borrower
shall, on an ongoing basis, promptly upon the preparation or receipt thereof,
deliver or cause to be delivered to EYCF the information listed on Part 2 of
Schedule IV hereto, such information to be in form and substance satisfactory to
EYCF.
(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), (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 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 November 27, 2002;
(ii) the occurrence of any Default or Event of Default other than
a Specified Default;
(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
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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.
(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
against 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
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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
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.
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(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.
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 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) 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
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(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
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) shall not be bound by the forbearance granted hereunder.
No Person other than the parties hereto and any other Bank 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) are hereby
expressly disclaimed.
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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/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President, General
Counsel and Secretary
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CIHC, INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President
1
BANK OF AMERICA, N.A., as
Administrative Agent and as a Bank
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
XXXXX TRADING
By:
---------------------------------------
Name:
Title:
SHEPHERDS INVESTMENTS INT'L LTD.
By:
----------------------------------------
Name:
Title:
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 ISLANDS
BRANCHES
By: /s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Title:
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
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ W. Xxxxxx XxXxxxxxx
----------------------------------------
Name: W. Xxxxxx XxXxxxxxx
Title: Duly Authorized Signatory
DEUTSCHE BANK TRUST CO
AMERICAS
By:
----------------------------------------
Name:
Title:
DK ACQUISITION PARTNERS
By:
----------------------------------------
Name:
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 SACHS 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/OR ACCOUNTS IT
MANAGES
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
PERRY PRINCIPALS, LLC
By:
----------------------------------------
Name:
Title:
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:
----------------------------------------
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: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President-CFO
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: EVP
By: /s/ Xxxxx Xxxx
----------------------------------------
Name: Xxxxx Xxxx
Title: VP
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:
----------------------------------------
Name:
Title:
BANK OF AMERICA, N.A. DEBT TRADING
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: 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
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
PRESIDENT & FELLOWS OF
HARVARD
By:
----------------------------------------
Name:
Title:
XX XXXX LAMINAR PORTFOLIOS
LLC
By:
----------------------------------------
Name:
Title:
CANPARTNERS INVESTMENTS IV
LLC
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX XXXXXX XXXXXX &
XXXXX
By:
----------------------------------------
Name:
Title:
NUVEEN SENIOR INCOME FUND
By:
----------------------------------------
Name:
Title:
AG CAPITAL FUNDING PARTNERS
LP
By: Xxxxxx, Xxxxxx & Co., L.P., as
Collateral Manager
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
HARBOURVIEW CDO II LTD
By:
----------------------------------------
Name:
Title:
JPMORGAN SECURITIES
By:
---------------------------------------
Name:
Title:
VARDE FUND V LP
By:
---------------------------------------
Name:
Title:
XXXXX XXX FLOATING RATE
LIMITED LIABILITY COMPANY
By: Xxxxx Xxx & Farnham Incorporated,
As Advisor
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Sr. Vice President &
Portfolio Manager
XXXXXX XXXXXXX EMERGING
MARKETS INC.
By:
----------------------------------------
Name:
Title:
AMMC CDO II, LTD
By:
---------------------------------------
Name:
Title:
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/ Xxxxx Xxxxxx-Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
AMMC CDO I LIMITED
By:
----------------------------------------
Name:
Title:
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 ADVISOR FLOATING RATE
ADVANTAGE FUND
By: Xxxxx Xxx & Farnham Incorporated,
As Advisor
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Sr. Vice President &
Portfolio Manager
MARINER OPPORTUNITIES II LP
By:
----------------------------------------
Name:
Title:
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
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
----------------------------------------
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
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
AXIS SRS LIMITED
By:
----------------------------------------
Name:
Title:
SCHEDULE I
Indebtedness
--------------------------------------------------------------------------------------------------------------------
Indenture Payment Date
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
"Old" 8.75% Senior Notes due February 2004 issued pursuant to the Senior Indenture August 9, 2002
dated November 13, 1997
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
"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
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
"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")
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
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
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
"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")
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
"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")
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
"Old" 9.0% Senior Notes due October 2006 issued pursuant to the Senior Indenture October 15, 2002
dated November 13, 1997
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
"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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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).
SCHEDULE IV
Information to be delivered to EYCF
Part 1:
1. Milliman valuation and details underlying assumptions, along with the
statutory model underlying Milliman valuation (together, the "Milliman
Information")
2. Documents regarding 60-day forbearance agreement between Xxxxxx and
Conseco Finance
3. Current cash balance update (as of October 18, 2002) 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)
4. Conseco and CIHC cash flow sensitivity analysis
Part 2:
1. Business plan / strategic plan for Conseco Finance
2. 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)
3. Daily and weekly liquidity schedules for Conseco Finance
4. Weekly NAP/Surrender trends
5. Any additional information reasonably requested by EYCF regarding the
business, financial or corporate affairs of Conseco or any Subsidiary
