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Collateral Agreement [Amended and Restated]
Collateral Agreement [Amended and Restated] (71K)
Doc #290305: Click preview link for longer preview.
AMENDED AND RESTATED COLLATERAL AGREEMENT
made by
CONSECO, INC.
and
CIHC, INCORPORATED
in favor of
JPMORGAN CHASE BANK,
as Collateral Agent
Dated as of March 20, 2002
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
{S} {C} {C}
SECTION 1. DEFINED TERMS..........................................................................................1
SECTION 1.1 Definitions................................................................................1
SECTION 1.2 Other Definitional Provisions..............................................................5
SECTION 2. GRANT OF SECURITY INTEREST.............................................................................5
SECTION 3. REPRESENTATIONS AND WARRANTIES.........................................................................5
SECTION 3.1 Title; No Other Liens......................................................................5
SECTION 3.2 Perfected First Priority Liens.............................................................6
SECTION 3.3 Investment Property........................................................................6
SECTION 4. COVENANTS..............................................................................................6
SECTION 4.1 Delivery of Instruments and Certificated Securities........................................6
SECTION 4.2 Payment of Obligations.....................................................................6
SECTION 4.3 Maintenance of Perfected Security Interest; Further Documentation..........................7
SECTION 4.4 Investment Property........................................................................7
SECTION 5. REMEDIAL PROVISIONS....................................................................................8
SECTION 5.1 Investment Property........................................................................8
SECTION 5.2 Proceeds to be Turned Over To Collateral Agent.............................................9
SECTION 5.3 Application of Proceeds...................................................................10
SECTION 5.4 Code and Other Remedies...................................................................10
SECTION 5.5 Registration Rights.......................................................................11
SECTION 5.6 Waiver; Deficiency........................................................................12
SECTION 6. THE COLLATERAL AGENT..................................................................................12
SECTION 6.1 Collateral Agent's Appointment as Attorney-in-Fact, etc...................................12
SECTION 6.2 Duty of Collateral Agent..................................................................13
i
{PAGE}
SECTION 6.3 Execution of Financing Statements.........................................................14
SECTION 6.4 Authority of Collateral Agent.............................................................14
SECTION 7. MISCELLANEOUS.........................................................................................14
SECTION 7.1 Amendments................................................................................14
SECTION 7.2 Notices...................................................................................14
SECTION 7.3 No Waiver by Course of Conduct; Cumulative Remedies.......................................14
SECTION 7.4 Enforcement Expenses; Indemnification.....................................................15
SECTION 7.5 Successors and Assigns....................................................................15
SECTION 7.6 Counterparts..............................................................................15
SECTION 7.7 Severability..............................................................................15
SECTION 7.8 Section Headings..........................................................................16
SECTION 7.9 Integration...............................................................................16
SECTION 7.10 GOVERNING LAW.............................................................................16
SECTION 7.11 Acknowledgments...........................................................................16
SECTION 7.12 Releases..................................................................................16
{/TABLE}
ii
{PAGE}
SCHEDULES
Schedule 1 Notice Addresses
Schedule 2 Investment Property
Schedule 3 Perfection Matters
iii
{PAGE}
AMENDED AND RESTATED COLLATERAL AGREEMENT
AMENDED AND RESTATED COLLATERAL AGREEMENT, dated as of March 20, 2002,
made by each of the signatories hereto (together with any other entity that may
become a party hereto as provided herein, the "Grantors"), in favor of JPMORGAN
CHASE BANK (formerly The Chase Manhattan Bank), as collateral agent (in such
capacity, the "Collateral Agent") for the Secured Parties (as defined below).
W I T N E S S E T H:
WHEREAS, the Grantors are party to that certain Collateral Agreement
(as amended, supplemented or otherwise modified from time to time, the "Existing
Collateral Agreement"), dated as of May 30, 2000, in favor of The Chase
Manhattan Bank (now known as JPMorgan Chase Bank), as collateral agent;
WHEREAS, pursuant to the Credit Agreement (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), dated as of
November 22, 2000, among the individual borrowers thereunder (the "Borrowers"),
the banks and other financial institutions from time to time party thereto (the
"Lenders") and The Chase Manhattan Bank (now known as JPMorgan Chase Bank), as
administrative agent (in such capacity, the "Administrative Agent"), the Lenders
agreed to refinance outstanding loans to the Borrowers in respect of the $144
Million D&O Facility;
WHEREAS, pursuant to the First Stage Amendment and Agreement Re: 1999
D&O Loans (the "1999 Amendment and Agreement"), dated as of the date hereof, the
Lenders have agreed to consent to amend the Appendix;
WHEREAS, as a condition precedent to the obligation of the Lenders to
enter into the 1999 Amendment and Agreement, the Grantors and the Collateral
Agent have agreed to amend and restate the Existing Collateral Agreement on the
terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual premises contained
herein and for other good and valuable consideration and to satisfy the
290305
|
Conseco
As referenced in this Collateral Agreement [Amended and Restated]:
CONSECO, INC – MATERIAL
{SEQUENCE}12
{FILENAME}ex10835.txt
{DESCRIPTION}EXHIBIT 10.8.35
{TEXT}
Exhibit 10.8.35
AMENDED AND RESTATED COLLATERAL AGREEMENT
made by
CONSECO, INC .
and
CIHC, INCORPORATED
in favor of
JPMORGAN CHASE BANK,
as Collateral Agent
Dated as of March 20, 2002
{PAGE}
TABLE OF CONTENTS
{
_____________
Conseco, Inc – of the Credit Agreement or any other Loan Document).
2
{PAGE}
"Guaranty" shall mean the Guaranty, dated as of November 22, 2000,
between Conseco, Inc ., as Guarantor, and The Chase Manhattan Bank (now know as
JPMorgan Chase Bank), as Administrative Agent, as amended, supplemented or
otherwise modified
_____________
Conseco, Inc – 5% of the common stock of Conseco
Finance, (y) the common stock issued by Conseco Capital Management, Inc. (the
"CCM Stock") held by Conseco, Inc . described on Schedule 2 hereto so long as no
Default or Event of Default is in existence or would result therefrom and (
_____________
CONSECO, INC – the undersigned has caused this Amended
and Restated Collateral Agreement to be duly executed and delivered as of the
date first above written.
CONSECO, INC .
By: /s/James S. Adams
--------------------------------------
Name: James S. Adams
Title: Senior Vice President, Chief
Accounting Officer and Treasurer
STATE OF INDIANA )
) ss:
_____________
Conseco, Inc – Commission Expires:
MARILYN MORTENSEN, NOTARY PUBLIC
RESIDENT OF: HAMILTON COUNTY
MY COMMISSION EXPIRES 10/29/09
{PAGE}
Schedule 1
NOTICE ADDRESSES OF GRANTORS
Conseco, Inc .
11825 North Pennsylvania Street
Carmel, Indiana 46032
CIHC, Incorporated
1201 Orange Street
Wilmington, Delaware 19801
{PAGE}
Schedule 2
DESCRIPTION OF INVESTMENT PROPERTY
_____________
dt 248180
;
 BNY
As referenced in this Collateral Agreement [Amended and Restated]:
Bank of New York – interest is allowed in such
proceeding).
"1994 Indenture Securities": the securities issued pursuant to the
1994 Indenture.
4
{PAGE}
"1994 Indenture Trustee": The Bank of New York (who assumed the
responsibilities of LTCB Trust Company as of June 1, 1999), in its capacity as
trustee under the 1994 Indenture,
_____________
dt 236136
;
Chase Manhattan
As referenced in this Collateral Agreement [Amended and Restated]:
Chase Manhattan Bank) – with any other entity that may
become a party hereto as provided herein, the "Grantors"), in favor of JPMORGAN
CHASE BANK (formerly The Chase Manhattan Bank) , as collateral agent (in such
capacity, the "Collateral Agent") for the Secured Parties (as defined below).
W I T N E S
_____________
Chase
Manhattan Bank – amended, supplemented or otherwise modified from time to time, the "Existing
Collateral Agreement"), dated as of May 30, 2000, in favor of The Chase
Manhattan Bank (now known as JPMorgan Chase Bank), as collateral agent;
WHEREAS, pursuant to the Credit Agreement (as amended, supplemented or
otherwise modified from
_____________
Chase Manhattan Bank – among the individual borrowers thereunder (the "Borrowers"),
the banks and other financial institutions from time to time party thereto (the
"Lenders") and The Chase Manhattan Bank (now known as JPMorgan Chase Bank), as
administrative agent (in such capacity, the "Administrative Agent"), the Lenders
agreed to refinance outstanding loans
_____________
Chase Manhattan Bank – other Loan Document).
2
{PAGE}
"Guaranty" shall mean the Guaranty, dated as of November 22, 2000,
between Conseco, Inc., as Guarantor, and The Chase Manhattan Bank (now know as
JPMorgan Chase Bank), as Administrative Agent, as amended, supplemented or
otherwise modified from time to time.
"Holder Representative": (i)
_____________
dt 245514
;
|
JPMorgan Chase
As referenced in this Collateral Agreement [Amended and Restated]:
JPMORGAN CHASE BANK, – 10.8.35
{TEXT}
Exhibit 10.8.35
AMENDED AND RESTATED COLLATERAL AGREEMENT
made by
CONSECO, INC.
and
CIHC, INCORPORATED
in favor of
JPMORGAN CHASE BANK,
as Collateral Agent
Dated as of March 20, 2002
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
{S} {C} {C}
SECTION 1. DEFINED
_____________
JPMORGAN
CHASE BANK – of the signatories hereto (together with any other entity that may
become a party hereto as provided herein, the "Grantors"), in favor of JPMORGAN
CHASE BANK (formerly The Chase Manhattan Bank), as collateral agent (in such
capacity, the "Collateral Agent") for the Secured Parties (as defined below).
W
_____________
JPMorgan Chase Bank) – time to time, the "Existing
Collateral Agreement"), dated as of May 30, 2000, in favor of The Chase
Manhattan Bank (now known as JPMorgan Chase Bank) , as collateral agent;
WHEREAS, pursuant to the Credit Agreement (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"),
_____________
JPMorgan Chase Bank) – Borrowers"),
the banks and other financial institutions from time to time party thereto (the
"Lenders") and The Chase Manhattan Bank (now known as JPMorgan Chase Bank) , as
administrative agent (in such capacity, the "Administrative Agent"), the Lenders
agreed to refinance outstanding loans to the Borrowers in respect of
_____________
JPMorgan Chase Bank) – shall mean the Guaranty, dated as of November 22, 2000,
between Conseco, Inc., as Guarantor, and The Chase Manhattan Bank (now know as
JPMorgan Chase Bank) , as Administrative Agent, as amended, supplemented or
otherwise modified from time to time.
"Holder Representative": (i) in respect of the Grantor Obligations,
_____________
dt 244256
;
Lehman Brothers
As referenced in this Collateral Agreement [Amended and Restated]:
Lehman Brothers Holdings Inc – value as determined by the Board of
Directors of such Grantor and (B) pursuant to the warrant issued on May 11, 2000
to Lehman Brothers Holdings Inc . in respect of up to 5% of the common stock of
Conseco Finance, (ii) sell, assign, transfer, exchange, or otherwise dispose of,
_____________
Lehman
Brothers Holdings Inc – or waive any rights with respect to, the Investment Property
thereof (except (x) pursuant to the warrant issued on May 11, 2000 to Lehman
Brothers Holdings Inc . in respect of up to 5% of the common stock of Conseco
Finance, (y) the common stock issued by Conseco Capital Management,
_____________
dt 246372
;
CIHC, Incorporated
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| 2002 |
Forbearance Agreement [Amended and Restated]
Forbearance Agreement [Amended and Restated] (21K)
Doc #141677: Click preview link for longer preview.
AMENDED AND RESTATED FORBEARANCE AGREEMENT
This AMENDED AND RESTATED FORBEARANCE AGREEMENT (the "Forbearance
Agreement"), dated as of October 9, 2002, is by and among Conseco Finance Corp.
(the "Company"), Green Tree Finance Corp. - Five ("GTFC"), Green Tree Residual
Finance Corp. I ("GTRFC"), Lehman Commercial Paper, Inc. ("LCPI") and Lehman
Brothers, Inc. ("LB" and, together with LCPI and their respective affiliates,
"Lehman").
WHEREAS, Lehman, GTFC and GTRFC are parties to (a) the Second Amended
and Restated Master Repurchase Agreement, dated as of January 30, 2002 (as
amended or modified, the "Warehouse Agreement"), between GTFC and LCPI, (b) the
Master Repurchase Agreement (as amended or modified, the "Master Agreement") and
Annex to Master Repurchase Agreement Supplemental Terms and Conditions (as
amended or modified, the "Supplement", and, together with the Master Agreement,
the "Residual Agreement"), each dated as of September 29, 1999, between GTRFC
and LB and (c) the Asset Assignment Agreement, dated as of February 13, 1998 (as
amended or modified, the "Assignment Agreement" and, together with the Residual
Agreement, the "Residual Facility Agreements" and, together with the Warehouse
Agreement, the "Subject Agreements"), between GTRFC and LB; and
WHEREAS, (i) the Company has guaranteed all, or a portion of the
obligations of GTFC and GTRFC under the Subject Agreements pursuant to that
certain Amended and Restated Limited Guaranty dated as of January 30, 2002 (the
"Limited Guaranty") and that certain Guaranty Agreement dated as of February 13,
1998 (the "Residual Guaranty" and, together with the Limited Guaranty, the
"Guaranty Agreements") and (ii) CIHC Incorporated ("CIHC") has guaranteed, in an
amount not to exceed $125,000,000, all of the obligations of GTFC and GTRFC
under the Subject Agreements pursuant to that certain Guaranty and Subordination
Agreement dated as of September 22, 2002 (as amended, the "CIHC Guaranty") by
and among CHIC, Conseco, Inc., LB, Lehman Brothers Holdings Inc., Lehman ALI
Inc. and LCPI;
WHEREAS, under each of the Subject Agreements Lehman has the right to
require additional collateral pursuant to the terms thereof;
WHEREAS, the Company, GTFG and GTRFC have requested that Lehman, for a
period through the date that is 60 days after the date hereof (i) agree , not to
"mark to market" any of the assets under the Residual Facility Agreements or
(ii) declare or exercise any rights arising from any present event of default
under any of the Subject Agreements which event of default is presently known to
Lehman;
WHEREAS, Lehman, the Company, GTFC and GTRFC have agreed to amend and
modify the Assignment Agreement and the Warehouse Agreement pursuant to the
amendments attached as Exhibit A hereto (collectively, the "Amendments") being
executed on the date hereof;
WHEREAS, Lehman, the Company, GTFC and GTRFC executed an Amendment and
Forbearance Agreement, dated September 30, 2002 (the "Amendment and Forbearance
Agreement"); and
{PAGE}
WHEREAS, Lehman, the Company, GTFC and GTRFC want to amend and restate
the Amendment and Forbearance Agreement in its entirety.
NOW, THEREFORE, in consideration of the foregoing, and. other
consideration, the receipt and sufficiency of which is hereby acknowledged,
Lehman, the Company, GTFC and GTRFC hereby agree as follows:
141677
|
Conseco
As referenced in this Forbearance Agreement [Amended and Restated]:
Conseco, Inc – pursuant to that certain Guaranty and Subordination
Agreement dated as of September 22, 2002 (as amended, the "CIHC Guaranty") by
and among CHIC, Conseco, Inc ., LB, Lehman Brothers Holdings Inc., Lehman ALI
Inc. and LCPI;
WHEREAS, under each of the Subject Agreements Lehman has the right to
_____________
dt 220267
;
Lehman Brothers
As referenced in this Forbearance Agreement [Amended and Restated]:
Lehman Brothers Holdings Inc – certain Guaranty and Subordination
Agreement dated as of September 22, 2002 (as amended, the "CIHC Guaranty") by
and among CHIC, Conseco, Inc., LB, Lehman Brothers Holdings Inc ., Lehman ALI
Inc. and LCPI;
WHEREAS, under each of the Subject Agreements Lehman has the right to
require additional collateral pursuant to
_____________
dt 105694
;
Lehman Brothers
As referenced in this Forbearance Agreement [Amended and Restated]:
Lehman
Brothers, Inc – Finance Corp.
(the "Company"), Green Tree Finance Corp. - Five ("GTFC"), Green Tree Residual
Finance Corp. I ("GTRFC"), Lehman Commercial Paper, Inc. ("LCPI") and Lehman
Brothers, Inc . ("LB" and, together with LCPI and their respective affiliates,
"Lehman").
WHEREAS, Lehman, GTFC and GTRFC are parties to (a) the Second Amended
_____________
LEHMAN BROTHERS, INC – Cheryl A. Collins
Title: Vice President and Assistant Treasurer
LEHMAN COMMERCIAL PAPER, INC.
By: /s/ Vincent Primiano
--------------------------------------------------
Name: Vincent Primiano
Title: Vice President
LEHMAN BROTHERS, INC .
By: /s/ Vincent Primiano
--------------------------------------------------
Name: Vincent Primiano
Title: Vice President
[Signature Page to Amended and Restated Forbearance Agreement]
7
{PAGE}
ACKNOWLEDGED, CONSENTED
_____________
dt 105649
;
|
LCPI
As referenced in this Forbearance Agreement [Amended and Restated]:
Lehman Commercial Paper, – 2002, is by and among Conseco Finance Corp.
(the "Company"), Green Tree Finance Corp. - Five ("GTFC"), Green Tree Residual
Finance Corp. I ("GTRFC"), Lehman Commercial Paper, Inc. ("LCPI") and Lehman
Brothers, Inc. ("LB" and, together with LCPI and their respective affiliates,
"Lehman").
WHEREAS, Lehman, GTFC and GTRFC are
_____________
LEHMAN COMMERCIAL PAPER, – Assistant Treasurer
GREEN TREE RESIDUAL FINANCE CORP. I
By: /s/ Cheryl A. Collins
--------------------------------------------------
Name: Cheryl A. Collins
Title: Vice President and Assistant Treasurer
LEHMAN COMMERCIAL PAPER, INC.
By: /s/ Vincent Primiano
--------------------------------------------------
Name: Vincent Primiano
Title: Vice President
LEHMAN BROTHERS, INC.
By: /s/ Vincent Primiano
--------------------------------------------------
Name: Vincent Primiano
Title:
_____________
dt 104683
;
U.S. Bank, NA
As referenced in this Forbearance Agreement [Amended and Restated]:
U.S.
Bank National Association – line facility
provided pursuant to that certain Credit Agreement dated as of
December 27, 2000, as amended, by and between the Company and U.S.
Bank National Association as set forth on the daily schedule required
to be delivered by the Company to Lehman pursuant. to this Section 3
(e).
4.
_____________
dt 187760
;
More... |
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Forbearance Agreement [Amended and Restated]
Forbearance Agreement [Amended and Restated] (21K)
Doc #290267: Click preview link for longer preview.
AMENDED AND RESTATED FORBEARANCE AGREEMENT
This AMENDED AND RESTATED FORBEARANCE AGREEMENT (the "Forbearance
Agreement"), dated as of October 9, 2002, is by and among Conseco Finance Corp.
(the "Company"), Green Tree Finance Corp. - Five ("GTFC"), Green Tree Residual
Finance Corp. I ("GTRFC"), Lehman Commercial Paper, Inc. ("LCPI") and Lehman
Brothers, Inc. ("LB" and, together with LCPI and their respective affiliates,
"Lehman").
WHEREAS, Lehman, GTFC and GTRFC are parties to (a) the Second Amended
and Restated Master Repurchase Agreement, dated as of January 30, 2002 (as
amended or modified, the "Warehouse Agreement"), between GTFC and LCPI, (b) the
Master Repurchase Agreement (as amended or modified, the "Master Agreement") and
Annex to Master Repurchase Agreement Supplemental Terms and Conditions (as
amended or modified, the "Supplement", and, together with the Master Agreement,
the "Residual Agreement"), each dated as of September 29, 1999, between GTRFC
and LB and (c) the Asset Assignment Agreement, dated as of February 13, 1998 (as
amended or modified, the "Assignment Agreement" and, together with the Residual
Agreement, the "Residual Facility Agreements" and, together with the Warehouse
Agreement, the "Subject Agreements"), between GTRFC and LB; and
WHEREAS, (i) the Company has guaranteed all, or a portion of the
obligations of GTFC and GTRFC under the Subject Agreements pursuant to that
certain Amended and Restated Limited Guaranty dated as of January 30, 2002 (the
"Limited Guaranty") and that certain Guaranty Agreement dated as of February 13,
1998 (the "Residual Guaranty" and, together with the Limited Guaranty, the
"Guaranty Agreements") and (ii) CIHC Incorporated ("CIHC") has guaranteed, in an
amount not to exceed $125,000,000, all of the obligations of GTFC and GTRFC
under the Subject Agreements pursuant to that certain Guaranty and Subordination
Agreement dated as of September 22, 2002 (as amended, the "CIHC Guaranty") by
and among CHIC, Conseco, Inc., LB, Lehman Brothers Holdings Inc., Lehman ALI
Inc. and LCPI;
WHEREAS, under each of the Subject Agreements Lehman has the right to
require additional collateral pursuant to the terms thereof;
WHEREAS, the Company, GTFG and GTRFC have requested that Lehman, for a
period through the date that is 60 days after the date hereof (i) agree , not to
"mark to market" any of the assets under the Residual Facility Agreements or
(ii) declare or exercise any rights arising from any present event of default
under any of the Subject Agreements which event of default is presently known to
Lehman;
WHEREAS, Lehman, the Company, GTFC and GTRFC have agreed to amend and
modify the Assignment Agreement and the Warehouse Agreement pursuant to the
amendments attached as Exhibit A hereto (collectively, the "Amendments") being
executed on the date hereof;
WHEREAS, Lehman, the Company, GTFC and GTRFC executed an Amendment and
Forbearance Agreement, dated September 30, 2002 (the "Amendment and Forbearance
Agreement"); and
{PAGE}
WHEREAS, Lehman, the Company, GTFC and GTRFC want to amend and restate
the Amendment and Forbearance Agreement in its entirety.
NOW, THEREFORE, in consideration of the foregoing, and. other
consideration, the receipt and sufficiency of which is hereby acknowledged,
Lehman, the Company, GTFC and GTRFC hereby agree as follows:
1. Amendment and Restatement. Subject to Section 5 below, the
Amendment and Forbearance Agreement is amended and restated in its entirety by
this Forbearance Agreement.
2. Standstill and Forbearance. Subject to Section 5 below and subject
to the occurrence of a Termination Event (as defined below), Lehman hereby
agrees that, during the Forbearance Period (as defined below), Lehman shall
refrain from doing any of the following (each, a "Forbearance Action"): (i)
declaring or exercising any rights arising from any Event of Default under and
as defined in any of the Subject Agreements which Event of Default is presently
and actually known to Lehman on the date hereof or is caused by the execution of
the Forbearance Agreement, (ii}making any margin call with respect to the margin
deficit that currently exists under the Residual Facility Agreements, (iii) any
further marking to market of the assets under the Residual Facility Agreements
and (iv) declaring or exercising the rights arising from any Event of Default
under and as defined in any of the Subject Agreements with respect to any
financial covenants contained in Section 7(k)(i), (ii), (iii), (iv) and (vi) of
the Assignment Agreement, Section 12(k)(i), (ii), (iii), (iv) and (vi) of the
Master Agreement and clause (k)(i), (ii), (iii), (iv) and (vi) of the paragraph
entitled "Additional Covenants of Seller" in the Residual Agreement, provided,
however, with respect to the Liquidity financial covenant in the Residual
Agreement, Lehman reserves its right to increase the Pricing Rate (as defined in
the Residual Agreement) pursuant to paragraph 4 to that certain Amendment to
Master Repurchase Agreement (LBI) dated as of April 30, 2002 by and between LB
and GTRFC. As used herein, the term "Forbearance Period" means the period from
September 30, 2002 through the earlier of (i) 60 days thereafter and (ii) the
date on which Lehman notifies the Company, GTFC or GTRFC that an Event of
Default under any of the Subject Agreements has occurred (other than an Event of
Default referenced in clause (i) above).
3. Covenants.
(a) The Company shall not make any dividend, payments of any kind or
distributions to its parent or any affiliates.
(b) The Company or GTFC shall deliver all Unencumbered Asset Records
(as defined below) that constitute Sold Assets (as defined below) to Lehman or
its designee (i) upon the execution of this Forbearance Agreement, with respect
to Unencumbered Assets (as defined below) that constitute Sold Assets (as
290267
|
Conseco
As referenced in this Forbearance Agreement [Amended and Restated]:
Conseco, Inc – pursuant to that certain Guaranty and Subordination
Agreement dated as of September 22, 2002 (as amended, the "CIHC Guaranty") by
and among CHIC, Conseco, Inc ., LB, Lehman Brothers Holdings Inc., Lehman ALI
Inc. and LCPI;
WHEREAS, under each of the Subject Agreements Lehman has the right to
_____________
dt 248147
;
Lehman Brothers
As referenced in this Forbearance Agreement [Amended and Restated]:
Lehman Brothers Holdings Inc – certain Guaranty and Subordination
Agreement dated as of September 22, 2002 (as amended, the "CIHC Guaranty") by
and among CHIC, Conseco, Inc., LB, Lehman Brothers Holdings Inc ., Lehman ALI
Inc. and LCPI;
WHEREAS, under each of the Subject Agreements Lehman has the right to
require additional collateral pursuant to
_____________
dt 246371
;
Lehman Brothers
As referenced in this Forbearance Agreement [Amended and Restated]:
Lehman
Brothers, Inc – Finance Corp.
(the "Company"), Green Tree Finance Corp. - Five ("GTFC"), Green Tree Residual
Finance Corp. I ("GTRFC"), Lehman Commercial Paper, Inc. ("LCPI") and Lehman
Brothers, Inc . ("LB" and, together with LCPI and their respective affiliates,
"Lehman").
WHEREAS, Lehman, GTFC and GTRFC are parties to (a) the Second Amended
_____________
LEHMAN BROTHERS, INC – Cheryl A. Collins
Title: Vice President and Assistant Treasurer
LEHMAN COMMERCIAL PAPER, INC.
By: /s/ Vincent Primiano
--------------------------------------------------
Name: Vincent Primiano
Title: Vice President
LEHMAN BROTHERS, INC .
By: /s/ Vincent Primiano
--------------------------------------------------
Name: Vincent Primiano
Title: Vice President
[Signature Page to Amended and Restated Forbearance Agreement]
7
{PAGE}
ACKNOWLEDGED, CONSENTED
_____________
dt 246358
;
|
LCPI
As referenced in this Forbearance Agreement [Amended and Restated]:
Lehman Commercial Paper, Inc – 2002, is by and among Conseco Finance Corp.
(the "Company"), Green Tree Finance Corp. - Five ("GTFC"), Green Tree Residual
Finance Corp. I ("GTRFC"), Lehman Commercial Paper, Inc . ("LCPI") and Lehman
Brothers, Inc. ("LB" and, together with LCPI and their respective affiliates,
"Lehman").
WHEREAS, Lehman, GTFC and GTRFC are parties
_____________
LEHMAN COMMERCIAL PAPER, INC – Assistant Treasurer
GREEN TREE RESIDUAL FINANCE CORP. I
By: /s/ Cheryl A. Collins
--------------------------------------------------
Name: Cheryl A. Collins
Title: Vice President and Assistant Treasurer
LEHMAN COMMERCIAL PAPER, INC .
By: /s/ Vincent Primiano
--------------------------------------------------
Name: Vincent Primiano
Title: Vice President
LEHMAN BROTHERS, INC.
By: /s/ Vincent Primiano
--------------------------------------------------
Name: Vincent Primiano
Title: Vice
_____________
dt 246161
;
U.S. Bank, NA
As referenced in this Forbearance Agreement [Amended and Restated]:
U.S.
Bank National Association – line facility
provided pursuant to that certain Credit Agreement dated as of
December 27, 2000, as amended, by and between the Company and U.S.
Bank National Association as set forth on the daily schedule required
to be delivered by the Company to Lehman pursuant. to this Section 3
(e).
4.
_____________
dt 248754
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| 2004 |
Guarantee and Security Agreement
Guarantee and Security Agreement (133K)
Doc #290152: Click preview link for longer preview.
GUARANTEE AND SECURITY AGREEMENT
dated as of
June 22, 2004
among
CONSECO, INC.
THE SUBSIDIARY GUARANTORS PARTY HERETO
and
BANK OF AMERICA, N.A.
as Agent
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
{S} {C} {C}
Section 1. Definitions.....................................................................................1
Section 2. Guarantees by Subsidiary Guarantors.............................................................9
Section 3. Grant of Transaction Liens.....................................................................12
Section 4. General Representations and Warranties.........................................................14
Section 5. Further Assurances; General Covenants..........................................................16
Section 6. Accounts.......................................................................................18
Section 7. Chattel Paper and Instruments..................................................................18
Section 8. Commercial Tort Claims.........................................................................19
Section 9. Recordable Intellectual Property...............................................................19
Section 10. Proceeds of Letters of Credit..................................................................20
Section 11. Investment Property............................................................................21
Section 12. Controlled Deposit Accounts....................................................................24
Section 13. Operation of Collateral Accounts...............................................................25
Section 14. Transfer of Record Ownership...................................................................26
Section 15. Right to Vote Securities.......................................................................27
Section 16. Remedies upon Event of Default.................................................................27
Section 17. Application of Proceeds........................................................................28
Section 18. Fees and Expenses; Indemnification.............................................................29
Section 19. Authority to Administer Collateral.............................................................30
Section 20. Limitation on Duty in Respect of Collateral....................................................31
Section 21. General Provisions Concerning the Agent........................................................31
Section 22. Termination of Transaction Liens; Release of Collateral........................................33
Section 23. Additional Subsidiary Guarantors and Lien Grantors.............................................34
Section 24. Notices........................................................................................34
Section 25. No Implied Waivers; Remedies Not Exclusive.....................................................36
Section 26. Successors and Assigns.........................................................................36
Section 27. Amendments and Waivers.........................................................................36
Section 28. Choice of Law..................................................................................36
Section 29. Waiver of Jury Trial...........................................................................36
Section 30. Severability...................................................................................36
{/TABLE}
{PAGE}
{TABLE}
SCHEDULES:
{S} {C} {C}
Schedule 1 Equity Interests in Subsidiaries and Affiliates Owned by Original Lien Grantors
Schedule 2 Other Investment Property Owned by Original Lien Grantors
Schedule 3 Securities Accounts, Commodity Accounts and Deposit Accounts
Schedule 4 Material Commercial Tort Claims
Schedule 5 Pledged Instruments
Schedule 6 Account Collateral
EXHIBITS:
Exhibit A Security Agreement Supplement
Exhibit B Copyright Security Agreement
Exhibit C Patent Security Agreement
Exhibit D Trademark Security Agreement
Exhibit E Perfection Certificate
Exhibit F Issuer Control Agreement
Exhibit G Securities Account Control Agreement
{/TABLE}
ii
{PAGE}
GUARANTEE AND SECURITY AGREEMENT
AGREEMENT dated as of June 22, 2004 among CONSECO, INC., a Delaware
corporation (the "Company"), the SUBSIDIARY GUARANTORS party hereto and BANK OF
AMERICA, N.A., as Agent.
WHEREAS, the Company is entering into the Credit Agreement described in
Section 1 hereof in order to (i) refinance (the "Refinancing") in full all
indebtedness outstanding under the Credit Agreement dated as of September 10,
2003, as amended, among the Company, the lenders named therein, and Bank of
America, N.A., as agent for such lenders, (ii) pay fees and expenses incurred in
connection with the Refinancing, (iii) repurchase the CDOC Preferred Stock and
(iv) finance other general corporate purposes;
WHEREAS, the Company is willing to secure its obligations under the Credit
Agreement by granting Liens on substantially all of its assets to the Agent as
provided in the Security Documents;
WHEREAS, the Company is willing to cause each of its current and future
Domestic Subsidiaries (other than Insurance Subsidiaries, Subsidiaries of
Insurance Subsidiaries and Immaterial Subsidiaries) to (i) guarantee the
foregoing obligations of the Company and (ii) secure such guarantee thereof by
granting Liens on substantially all of the assets of such Subsidiaries to the
Agent as provided in the Security Documents;
WHEREAS, the Lenders are not willing to enter into the Credit Agreement
unless (i) the foregoing obligations of the Company are secured and guaranteed
as described above and (ii) each guarantee thereof is secured by Liens on
substantially all of the assets of the relevant Subsidiary Guarantor as provided
in the Security Documents; and
WHEREAS, upon any foreclosure or other enforcement of the Security
Documents, the net proceeds of, or other collections on, the relevant Collateral
are to be received by or paid over to the Agent and applied as provided in
Section 22 hereof;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions. (a) Terms Defined in Credit Agreement. Terms
defined in the Credit Agreement and not otherwise defined in subsection (b) or
(c) of this Section have, as used herein, the respective meanings provided for
therein.
(b) Terms Defined in UCC. As used herein, each of the following terms has
the meaning specified in the UCC:
{PAGE}
{TABLE}
{CAPTION}
Term UCC
---- ---
{S} {C}
Account 9-102
Authenticate 9-102
Certificated Security 8-102
Chattel Paper 9-102
Commercial Tort Claim 9-102
Commodity Account 9-102
Commodity Contract 9-102
Commodity Customer 9-102
Commodity Intermediary 9-102
Deposit Account 9-102
Document 9-102
Electronic Chattel Paper 9-102
Entitlement Holder 8-102
Entitlement Order 8-102
Equipment 9-102
Financial Asset 8-102 & 103
General Intangibles 9-102
Instrument 9-102
Inventory 9-102
Investment Property 9-102
Letter-of-Credit Right 9-102
Payment Intangible 9-102
Record 9-102
290152
|
Conseco
As referenced in this Guarantee and Security Agreement:
CONSECO, INC – 3
{FILENAME}guarantee.txt
{DESCRIPTION}EXHIBIT 10.4
{TEXT}
Exhibit 10.4
GUARANTEE AND SECURITY AGREEMENT
dated as of
June 22, 2004
among
CONSECO, INC .
THE SUBSIDIARY GUARANTORS PARTY HERETO
and
BANK OF AMERICA, N.A.
as Agent
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
{S} {C} {
_____________
CONSECO, INC – Control Agreement
Exhibit G Securities Account Control Agreement
{/TABLE}
ii
{PAGE}
GUARANTEE AND SECURITY AGREEMENT
AGREEMENT dated as of June 22, 2004 among CONSECO, INC ., a Delaware
corporation (the "Company"), the SUBSIDIARY GUARANTORS party hereto and BANK OF
AMERICA, N.A., as Agent.
WHEREAS, the Company is
_____________
Conseco, Inc – including damages and payments for past or future infringements
thereof.
"Credit Agreement" means the Credit Agreement dated as of the date hereof
among Conseco, Inc ., the Lenders party thereto, and Bank of America, N.A., as
Agent.
"Deposit Account Control Agreement" means, with respect to any Deposit
_____________
CONSECO, INC – hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CONSECO, INC .
By: /s/ Daniel J. Murphy
------------------------------
Name: Daniel J. Murphy
Title: Senior Vice President and Treasurer
BANK OF AMERICA, N.A., as Agent
_____________
dt 248047
;
|
BofA
As referenced in this Guarantee and Security Agreement:
BANK OF AMERICA, N.A. – TEXT}
Exhibit 10.4
GUARANTEE AND SECURITY AGREEMENT
dated as of
June 22, 2004
among
CONSECO, INC.
THE SUBSIDIARY GUARANTORS PARTY HERETO
and
BANK OF AMERICA, N.A.
as Agent
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
{S} {C} {C}
Section 1. Definitions.....................................................................................1
Section 2. Guarantees by Subsidiary Guarantors.............................................................
_____________
BANK OF
AMERICA, N.A. – SECURITY AGREEMENT
AGREEMENT dated as of June 22, 2004 among CONSECO, INC., a Delaware
corporation (the "Company"), the SUBSIDIARY GUARANTORS party hereto and BANK OF
AMERICA, N.A. , as Agent.
WHEREAS, the Company is entering into the Credit Agreement described in
Section 1 hereof in order to (i) refinance (the "
_____________
Bank of
America, N.A. – all
indebtedness outstanding under the Credit Agreement dated as of September 10,
2003, as amended, among the Company, the lenders named therein, and Bank of
America, N.A. , as agent for such lenders, (ii) pay fees and expenses incurred in
connection with the Refinancing, (iii) repurchase the CDOC Preferred Stock
_____________
Bank of America, N.A. – means a Commodity Account Control Agreement, a
Deposit Account Control Agreement or a Securities Account Control Agreement, as
the context requires.
"Agent" means Bank of America, N.A. , in its capacity as Agent under the
Loan Documents, and its successors and assigns in such capacity.
"Article 9" means Article 9
_____________
Bank of America, N.A. – future infringements
thereof.
"Credit Agreement" means the Credit Agreement dated as of the date hereof
among Conseco, Inc., the Lenders party thereto, and Bank of America, N.A. , as
Agent.
"Deposit Account Control Agreement" means, with respect to any Deposit
Account of any Lien Grantor, an agreement among such Lien
_____________
dt 235163
|
| Preview
Full Doc
| 2003 |
Guarantee and Security Agreement
Guarantee and Security Agreement (167K)
Doc #290187: Click preview link for longer preview.
GUARANTEE AND SECURITY AGREEMENT
dated as of
September 10, 2003
among
CONSECO, INC.
THE SUBSIDIARY GUARANTORS PARTY HERETO
and
BANK OF AMERICA, N.A.
as Agent
{PAGE}
TABLE OF CONTENTS
-----------------
{TABLE}
{CAPTION}
PAGE
----
{S} {C} {C}
Section 1. Definitions.......................................................1
Section 2. Guarantees by Subsidiary Guarantors..............................11
Section 3. Grant of Transaction Liens.......................................15
Section 4. General Representations and Warranties...........................17
Section 5. Further Assurances; General Covenants............................19
Section 6. Accounts.........................................................22
Section 7. Chattel Paper and Instruments....................................22
Section 8. Commercial Tort Claims...........................................23
Section 9. Equipment........................................................24
Section 10. Material Government Contracts....................................24
Section 11. Recordable Intellectual Property.................................26
Section 12. Proceeds of Letters of Credit....................................26
Section 13. Investment Property..............................................27
Section 14. Investment Property Collateral Accounts..........................30
Section 15. Controlled Deposit Accounts......................................31
Section 16. Cash Collateral Accounts.........................................31
Section 17. Operation of Collateral Accounts.................................32
Section 18. Transfer of Record Ownership.....................................34
Section 19. Right to Vote Securities.........................................35
Section 20. Certain Cash Distributions.......................................35
Section 21. Remedies upon Event of Default...................................36
Section 22. Application of Proceeds..........................................37
Section 23. Fees and Expenses; Indemnification...............................38
Section 24. Authority to Administer Collateral...............................40
Section 25. Limitation on Duty in Respect of Collateral......................40
Section 26. General Provisions Concerning the Agent..........................41
Section 27. Termination of Transaction Liens; Release of Collateral..........44
Section 28. Additional Subsidiary Guarantors and Lien Grantors...............45
Section 29. Notices..........................................................45
Section 30. No Implied Waivers; Remedies Not Exclusive.......................47
Section 31. Successors and Assigns...........................................47
Section 32. Amendments and Waivers...........................................47
Section 33. Choice of Law....................................................48
Section 34. Waiver of Jury Trial.............................................48
Section 35. Severability.....................................................48
{/TABLE}
{PAGE}
{TABLE}
{S} {C} {C}
SCHEDULES:
---------
Schedule 1 Equity Interests in Subsidiaries and Affiliates Owned
by Original Lien Grantors
Schedule 2 Other Investment Property Owned by Original Lien
Grantors
Schedule 3 Material Commercial Tort Claims
Schedule 4 1999 Facility Collateral
EXHIBITS:
--------
Exhibit A Security Agreement Supplement
Exhibit B Copyright Security Agreement
Exhibit C Patent Security Agreement
Exhibit D Trademark Security Agreement
Exhibit E Perfection Certificate
Exhibit F Issuer Control Agreement
Exhibit G Securities Account Control Agreement
Exhibit H-1 List of Material Government Contracts
Exhibit H-2 Assignment of Government Contract
Exhibit H-3 Notice of Assignment of Government Contract
Exhibit I List of Letters of Credit
{/TABLE}
ii
{PAGE}
GUARANTEE AND SECURITY AGREEMENT
AGREEMENT dated as of September 10, 2003 among CONSECO, INC., the
SUBSIDIARY GUARANTORS party hereto and BANK OF AMERICA, N.A., as Agent.
WHEREAS, the Company is entering into the Credit Agreement described in
Section 1 hereof in order to provide for the partial satisfaction of certain
pre-petition claims against the Company and certain of its Subsidiaries;
WHEREAS, the Company is willing to secure its obligations under the Credit
Agreement by granting Liens on substantially all of its assets to the Agent as
provided in the Security Documents;
WHEREAS, the Company is willing to cause each of its current and future
Domestic Subsidiaries (other than Insurance Subsidiaries, Subsidiaries of
Insurance Subsidiaries and Immaterial Subsidiaries) to guarantee the foregoing
obligations of the Company and to secure its guarantee thereof by granting Liens
on substantially all of its assets to the Agent as provided in the Security
Documents;
WHEREAS, the Banks are not willing to enter into the Credit Agreement
unless (i) the foregoing obligations of the Company are secured and guaranteed
as described above and (ii) each guarantee thereof is secured by Liens on
substantially all of the assets of the relevant Subsidiary Guarantor as provided
in the Security Documents; and
WHEREAS, upon any foreclosure or other enforcement of the Security
Documents, the net proceeds of, or other collections on, the relevant Collateral
are to be received by or paid over to the Agent and applied as provided in
Section 22 hereof;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions. (a) Terms Defined in Credit Agreement. Terms
defined in the Credit Agreement and not otherwise defined in subsection (b) or
(c) of this Section have, as used herein, the respective meanings provided for
therein.
(b) Terms Defined in UCC. As used herein, each of the following terms has
the meaning specified in the UCC:
{PAGE}
{TABLE}
Term UCC
---- ---
{S} {C}
Account 9-102
Authenticate 9-102
Certificated Security 8-102
Chattel Paper 9-102
Commercial Tort Claim 9-102
Commodity Account 9-102
Commodity Contract 9-102
Commodity Customer 9-102
Commodity Intermediary 9-102
Deposit Account 9-102
Document 9-102
Electronic Chattel Paper 9-102
Entitlement Holder 8-102
Entitlement Order 8-102
Equipment 9-102
Financial Asset 8-102 & 103
General Intangibles 9-102
Instrument 9-102
Inventory 9-102
Investment Property 9-102
Letter-of-Credit Right 9-102
Payment Intangible 9-102
Record 9-102
Securities Account 8-501
Securities Intermediary 8-102
Security 8-102 & 103
Security Entitlement 8-102
Supporting Obligations 9-102
Tangible Chattel Paper 9-102
Uncertificated Security 8-102
{/TABLE}
(c) Additional Definitions. The following additional terms, as used herein,
have the following meanings:
"Agent" means Bank of America, N.A., in its capacity as Agent under the
Loan Documents, and its successors and assigns in such capacity.
"Article 9" means Article 9 of the Uniform Commercial Code as set forth in
290187
|
Conseco
As referenced in this Guarantee and Security Agreement:
CONSECO, INC – 3
{FILENAME}exhibit104.txt
{DESCRIPTION}EXHIBIT 10.4
{TEXT}
Exhibit 10.4
GUARANTEE AND SECURITY AGREEMENT
dated as of
September 10, 2003
among
CONSECO, INC .
THE SUBSIDIARY GUARANTORS PARTY HERETO
and
BANK OF AMERICA, N.A.
as Agent
{PAGE}
TABLE OF CONTENTS
-----------------
{TABLE}
{CAPTION}
PAGE
----
{S} {C} {
_____________
CONSECO, INC – Contract
Exhibit I List of Letters of Credit
{/TABLE}
ii
{PAGE}
GUARANTEE AND SECURITY AGREEMENT
AGREEMENT dated as of September 10, 2003 among CONSECO, INC ., the
SUBSIDIARY GUARANTORS party hereto and BANK OF AMERICA, N.A., as Agent.
WHEREAS, the Company is entering into the Credit Agreement
_____________
Conseco, Inc – without further consent by such Lien Grantor. Each such agreement must be
reasonably satisfactory in form and substance to the Agent.
"Company" means Conseco, Inc ., a Delaware corporation.
"Control" has the following meanings:
(a) when used with respect to any Security or Security Entitlement,
the meaning specified
_____________
Conseco, Inc – and payments for past or future infringements
thereof.
4
{PAGE}
"Credit Agreement" means the Credit Agreement dated as of the date hereof
among Conseco, Inc ., the Banks party thereto, and Bank of America, N.A., as
Agent.
"D&O Loan Collateral" means the right, title and interest
_____________
CONSECO, INC – hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CONSECO, INC .
By:/s/William J. Shea
--------------------------------------------
Name: William J. Shea
Title: President and Chief Executive Officer
BANK OF AMERICA, N.A., as Agent
_____________
dt 248082
;
BofA
As referenced in this Guarantee and Security Agreement:
BANK OF AMERICA, N.A. – TEXT}
Exhibit 10.4
GUARANTEE AND SECURITY AGREEMENT
dated as of
September 10, 2003
among
CONSECO, INC.
THE SUBSIDIARY GUARANTORS PARTY HERETO
and
BANK OF AMERICA, N.A.
as Agent
{PAGE}
TABLE OF CONTENTS
-----------------
{TABLE}
{CAPTION}
PAGE
----
{S} {C} {C}
Section 1. Definitions.......................................................1
Section 2. Guarantees by Subsidiary Guarantors..............................
_____________
BANK OF AMERICA, N.A. – TABLE}
ii
{PAGE}
GUARANTEE AND SECURITY AGREEMENT
AGREEMENT dated as of September 10, 2003 among CONSECO, INC., the
SUBSIDIARY GUARANTORS party hereto and BANK OF AMERICA, N.A. , as Agent.
WHEREAS, the Company is entering into the Credit Agreement described in
Section 1 hereof in order to provide for the
_____________
Bank of America, N.A. – 9-102
Uncertificated Security 8-102
{/TABLE}
(c) Additional Definitions. The following additional terms, as used herein,
have the following meanings:
"Agent" means Bank of America, N.A. , in its capacity as Agent under the
Loan Documents, and its successors and assigns in such capacity.
"Article 9" means Article 9
_____________
Bank of America, N.A. – thereof.
4
{PAGE}
"Credit Agreement" means the Credit Agreement dated as of the date hereof
among Conseco, Inc., the Banks party thereto, and Bank of America, N.A. , as
Agent.
"D&O Loan Collateral" means the right, title and interest of the Company
in, to and under the D&O
_____________
BANK OF AMERICA, N.A. – day and year
first above written.
CONSECO, INC.
By:/s/William J. Shea
--------------------------------------------
Name: William J. Shea
Title: President and Chief Executive Officer
BANK OF AMERICA, N.A. , as Agent
By:/s/Molly J. Oxford
-----------------------------------------
Name: Molly J. Oxford
Title: Vice President
{PAGE}
Subsidiary Guarantors:
AMERICAN LIFE AND CASUALTY MARKETING
_____________
dt 235170
;
|
BNY
As referenced in this Guarantee and Security Agreement:
Bank of New York – Financial
Assets credited to the following Securities Accounts:
{TABLE}
{CAPTION}
Owner Securities Intermediary Account Type
------------------------------------- ------------------------------------ ---------------------
{S} {C} {C}
American Life and Casualty The Bank of New York Custody
Marketing Division Co.
American Life & Casualty Marketing Mellon Bank, N.A. Custody
Division Co.
CDOC, Inc. The Bank of New York
_____________
Bank of New York – The Bank of New York Custody
Marketing Division Co.
American Life & Casualty Marketing Mellon Bank, N.A. Custody
Division Co.
CDOC, Inc. The Bank of New York Custody
CFIHC, Inc. The Bank of New York Custody
CIHC, Incorporated The Bank of New York Custody
CIHC, Incorporated Mellon Bank, N.
_____________
Bank of New York – Co.
American Life & Casualty Marketing Mellon Bank, N.A. Custody
Division Co.
CDOC, Inc. The Bank of New York Custody
CFIHC, Inc. The Bank of New York Custody
CIHC, Incorporated The Bank of New York Custody
CIHC, Incorporated Mellon Bank, N.A. Custody
Conseco Capital Management, Inc. The Bank
_____________
Bank of New York – A. Custody
Division Co.
CDOC, Inc. The Bank of New York Custody
CFIHC, Inc. The Bank of New York Custody
CIHC, Incorporated The Bank of New York Custody
CIHC, Incorporated Mellon Bank, N.A. Custody
Conseco Capital Management, Inc. The Bank of New York Custody
Conseco Capital Management, Inc.
_____________
Bank of New York – New York Custody
CIHC, Incorporated The Bank of New York Custody
CIHC, Incorporated Mellon Bank, N.A. Custody
Conseco Capital Management, Inc. The Bank of New York Custody
Conseco Capital Management, Inc. Mellon Bank, N.A. Custody
Conseco Group Risk Management The Bank of New York Custody
Company
Conseco
_____________
dt 236097
;
U.S. Bancorp
As referenced in this Guarantee and Security Agreement:
(US Bancorp – Date)
PART 1 -- Securities
{TABLE}
{CAPTION}
Location of
Owner of Securities Issuer Security
----------------------------- ------------------------ -----------------
{S} {C} {C}
Conseco Capital Conseco Fund Group Book entry at
Management, Inc. Mutual Funds Transfer Agent
(US Bancorp )
Conseco Capital Conseco StockCar Book entry at
Management, Inc. Stock Fund Transfer Agent
(US Bankcorp)
Conseco, Inc. Conseco Strategic Book entry at
Income Fund Transfer Agent
(PFPC)
{/TABLE}
{PAGE}
_____________
dt 1442279
|
| Preview
Full Doc
| 2002 |
Guaranteed Senior Notes
Guaranteed Senior Notes (69K)
Doc #290289: Click preview link for longer preview.
6.4% Guaranteed Senior Notes due February 10, 2004
Dated as of April 24, 2002
Terms Resolution
THE UNDERSIGNED, William J. Shea, President and Chief Operations Officer
of Conseco, Inc., an Indiana corporation (the "Company"), and James S. Adams,
Senior Vice President, Chief Accounting Officer and Treasurer of the Company,
being two of the "Designated Officers" of the Company authorized by the
resolution adopted by the Executive Committee of the Board of Directors on March
18, 2002, by authorization granted to it by the Board of Directors (the
"Resolution"), to establish the form and terms of the Notes (as hereinafter
defined) and to take, on behalf of the Company, certain other action with
respect to the Notes (the "Designated Officers"), do hereby adopt and execute,
on behalf of the Company the following preamble and resolution:
WHEREAS, pursuant to the Resolution the Designated
Officers have been authorized to, among other things,
(i) determine, authorize and fix the terms of a series
of Securities of the Company in an aggregate principal
amount up to such aggregate principal amount as shall be
sold at an aggregate initial offering price not
exceeding $2,540,299,000, (ii) negotiate, execute and
deliver one or more underwriting agreements,
distribution agreements, terms agreements, pricing
agreements or purchase agreements relating to such
Securities, and (iii) take all such further action as
the Designated Officers may deem to be necessary or
advisable to carry out the purpose and intent of the
Resolution which relate to the offering of such
Securities;
NOW, THEREFORE, BE IT RESOLVED that:
Pursuant to Section 3.1 of the Senior Indenture dated as of April 24, 2002
(the "Indenture"), among the Company, CIHC, Incorporated, as guarantor, and
State Street Bank and Trust Company, as trustee (the "Trustee"), and pursuant to
the Resolution, there is hereby established a series (as that term is used in
Section 3.1 of the Indenture) of Securities to be issued under the Indenture,
and, in addition to the terms provided in the Indenture, such series of
Securities shall have the following terms:
1
{PAGE}
1. The title of the Securities of the series is 6.4% Guaranteed Senior
Notes due February 10, 2004 (the "Notes").
2. The limit upon the aggregate principal amount of the Notes which may
be authenticated and delivered on the date hereof or from time to time under the
Indenture (except for Notes authenticated and delivered upon transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Sections 3.4, 3.5, 3.6,
3.14, 8.6 or 10.7 of the Indenture) shall be $250,000,000. The Notes issued on
the date hereof and any additional Notes subsequently issued pursuant to the
Indenture would be treated as a single class for all purposes under the
Indenture.
3. The Notes shall bear interest at a fixed rate of 6.4% per annum.
Interest shall be payable semi-annually on February 10 and August 10 of each
year, commencing, August 10, 2002. The interest payable on August 10, 2002 will
accrue from February 10, 2002.
4. The date on which the principal of the Note is payable shall be
February 10, 2004.
5. Pursuant to Section 2.1 of the Indenture and pursuant to the
Resolution, the form of Notes attached hereto as Annex A-1 and A-2 is hereby
established as the form of the Notes.
6. Each Note shall be represented by a global note (a "Book-Entry
Note") registered in the name of a U.S. Depositary, which shall be The
Depository Trust Company, or its nominee.
7. The Notes will be Guaranteed by the Subsidiary Guarantee of the
Guarantor on an unsecured senior subordinated basis in accordance with the
provisions of the Indenture. Pursuant to Section 2.1 of the Indenture and
pursuant to the Resolution, the form of the Subsidiary Guarantee attached hereto
as Annex B is hereby established as the form of the Subsidiary Guarantee.
8. The Notes will be redeemable as a whole or in part at the option of
the Company at any time, at a redemption price equal to the sum of (a) the
greater of (i) 100% of the principal amount of such Notes and (ii) the sum of
the present values of the remaining scheduled payments of principal and interest
thereon from the redemption date to the date of Maturity, computed by
discounting such payments, in each case, to the redemption date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate, plus 25 basis points, plus (b) accrued and unpaid interest on the
principal amount thereof to the date of redemption.
2
{PAGE}
Definitions
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining terms of such Notes. "Independent
Investment Banker" means one of the Reference Treasury Dealers appointed
by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third Business Day preceding such redemption date, as set
forth in the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and designated
"Composite 3:30 p.m. Quotations for U.S. Government Securities" or (ii) if
such release (or any successor release) is not published or does not
contain such prices on such Business Day, the average of the Reference
Treasury Dealer Quotations actually obtained by the Trustee for such
redemption date. "Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m. (New York City time) on the third Business
Day preceding such redemption date.
"Reference Treasury Dealer" means each of Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Deutsche Morgan Grenfell Inc., Salomon
Brothers Inc. and SBC Warburg Dillon Read Inc. and their respective
successors; provided, however, that if any of the foregoing shall cease to
be a primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the Company may substitute therefor another
Primary Treasury Dealer.
9. The denominations of Notes shall be $1,000 and any integral
multiples in excess thereof.
10. The Notes shall be issuable only as Registered Securities, without
coupons.
11. The Notes shall be denominated, and principal of and premium, if
any, and interest on the Notes shall be payable, in United States Dollars.
12. Pursuant to Section 9.2 of the Indenture and this Terms Resolution,
(i) the Company hereby appoints State Street Bank and Trust Company at its
principal corporate trust office located in Hartford, Connecticut (which office
or agency shall initially be located at
290289
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Conseco
As referenced in this Guaranteed Senior Notes:
Conseco, Inc – due February 10, 2004
Dated as of April 24, 2002
Terms Resolution
THE UNDERSIGNED, William J. Shea, President and Chief Operations Officer
of Conseco, Inc ., an Indiana corporation (the "Company"), and James S. Adams,
Senior Vice President, Chief Accounting Officer and Treasurer of the Company,
being two
_____________
CONSECO, INC – THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
{PAGE}
CUSIP [_________]
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