EX-99.6 8 ex996.txt EX-99.6 Exhibit 99.6 $1,500,000,000 FIVE-YEAR CREDIT AGREEMENT WAIVER NO. 2, dated as of September 8, 2002 (this "Waiver"), to the $1,500,000,000 Five-Year Credit Agreement dated as of September 25, 1998 (as heretofore amended, the "Credit Agreement") among Conseco, Inc., an Indiana corporation (the "Borrower"), the various financial institutions signatory thereto (the "Banks") and Bank of America, N.A., individually and as agent for the Banks (the "Agent"). W I T N E S S E T H : WHEREAS, the Borrower has asked the Banks, and the Banks party hereto are willing, on the terms and conditions set forth below and for a limited period only, to waive compliance with certain provisions of, and to waive certain Defaults and Events of Default under, the Credit Agreement; NOW, THEREFORE, 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 . Waivers. (a) Debt to Total Capitalization Ratio. The Banks party hereto hereby agree to waive compliance by the Borrower, on an interim basis until Waiver Termination (as defined below) only, with the requirements set forth in Section 4.13 of the Appendix (incorporated by reference into the Credit Agreement) that the Debt to Total Capitalization Ratio (i) as of June 30, 2002 not be greater than 0.400:1.0 and (ii) as of September 30, 2002 not be greater than 0.375:1.0, and waive any Default or Event of Default that may have occurred or may occur solely as a result of such noncompliance. (b) Cross-Default. The Banks party hereto hereby agree to waive, on an interim basis until Waiver Termination only, any Default or Event of Default that may occur pursuant to Section 5.01(e) of the Appendix (incorporated by reference into the Credit Agreement) solely as a result of the failure by the Borrower or CIHC (as guarantor of the Borrower's obligations with respect to the New Notes (as defined in Schedule I)) to make the interest payment 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 (and any cross-default under any other Indebtedness solely as a result of such failure). 1 (c) Period of Effectiveness. Each of the foregoing waivers shall be effective solely during the period commencing on the effectiveness of such waiver, determined in accordance with Section 7 hereto, and ending at Waiver Termination, at which time the foregoing waivers shall terminate and be of no further force or effect. "Waiver Termination" means the earliest to occur of: (i) 12:01 A.M. (New York time) on October 17, 2002; (ii)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 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 result in Waiver Termination 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 waivers granted in this Section 2 will not terminate 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 result in Waiver Termination only if the aggregate principal amount of Indebtedness or other obligations outstanding under such agreements or instruments (including committed or available amounts thereunder) exceeds $10,000,000; (iii) 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 (iv) receipt by the Borrower of a written notice from the Required Banks advising the Borrower that they have determined (in their sole discretion) to terminate the waivers granted in this Section 2. 2 (d) Limited Effect. Except as provided in subsections (a) and (b) above, this Section 2 shall not operate as a waiver of any right, remedy, power or privilege of the Banks under the Credit Agreement or any other Loan Document or of any other term or condition of the Credit Agreement or any other Loan Document. Without limiting the generality of the foregoing, upon Waiver Termination, the Banks or the Agent may proceed to exercise any and all of their respective rights and remedies, including, without limitation, their rights and remedies in connection with any Default or Event of Default referred to in this Section 2. SECTION 3 . Interest Rate. Notwithstanding any provision in the Credit Agreement to the contrary, from and after the date hereof, interest on the principal amount of Loans outstanding under the Credit Agreement shall be calculated and shall accrue at the Default Rate (as defined in Section 2.12(c) of the Credit Agreement). Such interest shall be payable in arrears on the next Interest Payment Date and, thereafter, on the last Business Day of each calendar month (commencing November 2002). Any amount of interest not paid when due shall be added to and shall increase the outstanding principal amount of Loans and shall thereafter accrue interest as set forth above. The Credit Agreement is hereby amended to the extent necessary to give effect to the provisions of this Section 3 and such amendment and this Section 3 shall survive the termination of this Waiver. SECTION 4 . Representations Correct; No Default. The Borrower represents and warrants that, except as expressly waived hereby, on and as of the date hereof (i) the representations and warranties contained in the Credit Agreement are true as though made on and as of the date hereof (except to the extent a representation or warranty references a specific date, in which case, such representation or warranty is true as of such date) and (ii) no Default or Event of Default has occurred and is continuing. SECTION 5 . Governing Law. This Waiver shall be governed by and construed in accordance with the laws of Illinois. SECTION 6 . Counterparts. This Waiver 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 7 . Effectiveness. This Waiver shall become effective (and shall be binding on all Banks) (i) as of the date hereof with respect to the waivers provided in Sections 2(a)(ii) and 2(b) hereof and (ii) as of June 30, 2002 with respect to the waiver provided in Section 2(a)(i) hereof, in each case when the following conditions are satisfied: 3 (i) the Agent shall have received from each of the Borrower 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; and (ii) 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 granted waivers thereunder on terms substantially similar to those contained herein. 4 IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly executed as of the date first above written. CONSECO, INC. By:/s/ David K. Herzog --------------------------------------- Name: David K. Herzog Title: Executive Vice President, General Counsel and Secretary 5 BANK OF AMERICA, N.A., as Administrative Agent and as a Bank By:/s/ Bridget A. Garavalia --------------------------------------- Name: Bridget A. Garavalia Title: Managing Director JPMORGAN CHASE BANK By:/s/ Helen L. Newcomb --------------------------------------- Name: Helen L. Newcomb Title: Vice President BEAR STEARNS & CO INC. By:/s/ John McDermott --------------------------------------- Name: John McDermott Title: Senior Managing Director DEUTSCHE BANK AKTIENGESELLSCHAFT By: --------------------------------------- Name: Title: SILVER OAK CAPITAL LLC By:/s/ Jeffrey H. Aronson --------------------------------------- Name: Jeffrey H. Aronson Title: Authorized Signatory FLEET NATIONAL BANK By:/s/ Donald R. Nicholson --------------------------------------- Name: Donald R. Nicholson Title: Senior Vice President DEUTSCHE BANK TRUST COMPANY AMERICAS By:/s/ John Pineiro --------------------------------------- Name: John Pineiro Title: Attorney-in-Fact DK ACQUISITION PARTNERS By:/s/ Thomas I. Kempner, Jr. --------------------------------------- Name: Thomas I. Kempner, Jr. Title: General Partner THE BANK OF NEW YORK By:/s/ Stephen C. Brennan --------------------------------------- Name: Stephen C. Brennan Title: Vice President BANK OF TOKYO-MITSUBISHI LTD NEW YORK BRANCH By:/s/ Christina T. Schoen --------------------------------------- Name: Christina T. Schoen Title: Vice President CREDIT SUISSE FIRST BOSTON By:/s/ Jay Chall --------------------------------------- Name: Jay Chall Title: Director By:/s/ Stuart B. Ganes --------------------------------------- Name: Stuart B. Ganes Title: Director SOCIETE GENERALE By: --------------------------------------- Name: Title: GOLDMAN SACHS CREDIT PARTNERS LP By: --------------------------------------- Name: Title: COMERICA BANK By:/s/ Ernest M. Zarb --------------------------------------- Name: Ernest M. Zarb Title: Senior Vice President OAKTREE CAPITAL MANAGEMENT, LLC as general partner and/or investment manager of certain funds and accounts it manages By:/s/ Kenneth Liang --------------------------------------- Name: Kenneth Liang Title: Managing Director By:/s/ Matthew Barrett --------------------------------------- Name: Matthew Barrett Title: Managing Director PERRY PRINCIPALS, LLC By: /s/ Nathaniel J. Klipper --------------------------------------- Name: Nathaniel J. Klipper Title: Managing Director KEYBANK NA By:/s/ Marvin S. Kodish --------------------------------------- Name: Marvin S. Kodish Title: Senior Vice President WELLS FARGO BANK NA By:/s/ Michael B. Sullivan --------------------------------------- Name: Michael B. Sullivan Title: Senior Vice President SATELLITE SENIOR INCOME FUND LLC By:/s/ Mark Sonnino --------------------------------------- Name: Mark Sonnino Title: Principal MARINER LDC By: --------------------------------------- Name: Title: NORTHWOODS CAPITAL III LIMITED By: Angelo, Gordon & Co., L.P., as Collateral Manager By:/s/ John W. Fraser --------------------------------------- Name: John W. Fraser Title: Managing Director KENSINGTON INTERNATIONAL LIMITED By: Elliott International Capital Advisors Inc. as attorney-in-fact By: --------------------------------------- Name: Title: PAM CAPITAL FUNDING LP By: Highland Capital Management, L.P. As Collateral Manager By: --------------------------------------- Name: Title: NORDDEUTSCHE LANDESBNK GIROZENTRALE By: --------------------------------------- Name: Title: SUNTRUST BANK By:/s/ Byron P. Kurtgis --------------------------------------- Name: Byron P. Kurtgis Title: Director CERES II FINANCE LTD By: INVESCO Senior Secured Management, Inc., as Sub-Managing Agent (Financial) By:/s/ Scott Baskind --------------------------------------- Name: Scott Baskind Title: Authorized Signatory FERNWOOD ASSOCIATES LP By:/s/ David B. Forer --------------------------------------- Name: David B. Forer Title: General Partner US BANK NA By:/s/ Daniel J. Falstad --------------------------------------- Name: Daniel J. Falstad Title: Vice President BANK OF AMERICA, N.A. DEBT TRADING By:/s/ Laura T. Sweet --------------------------------------- Name: Laura T. Sweet Title: Assistant Vice President ML CBO IV CAYMAN LTD. By: Highland Capital Management, L.P. As Collateral Manager By: --------------------------------------- Name: Title: NATIONAL CITY BANK OF INDIANA By:/s/ F. Richard Blankenship, III --------------------------------------- Name: F. Richard Blankenship, III Title: Senior Vice President PAMCO CAYMAN LTD. By: Highland Capital Management, L.P. As Collateral Manager By: --------------------------------------- Name: Title: PRESIDENT & FELLOWS OF HARVARD By: --------------------------------------- Name: Title: BRENCOURT SEC MASTER LTD By:/s/ Victor Simonte --------------------------------------- Name: Victor Simonte Title: Managing Director CANPARTNERS INVESTMENTS IV LLC By: /s/ R. Christian B. Evensen --------------------------------------- Name: R. Christian B. Evensen Title: Authorized Signatory MERRILL LYNCH PIERCE FENNER & SMITH By:/s/ Graham Goldsmith -------------------------------------- Name: Graham Goldsmith Title: Managing Director NUVEEN SENIOR INCOME FUND By: --------------------------------------- Name: Title: AG CAPITAL FUNDING PARTNERS LP By: Angelo, Gordan & Co., L.P., as Investment Adviser By:/s/ John W. Fraser --------------------------------------- Name: John W. Fraser Title: Managing Director HARBOURVIEW CDO II LTD By: --------------------------------------- Name: Title: SRF 2000 LLC By: --------------------------------------- Name: Title: SRF TRADING INC By: --------------------------------------- Name: Title: STEIN ROE FLOATING RATE LIMITED LIABILITY COMPANY By: Stein Roe & Farnham Incorporated, As Advisor By:/s/ Brian W. Good --------------------------------------- Name: Brian W. Good Title: Senior Vice President MORGAN STANLEY EMERGING MARKETS INC. By:/s/ Edgar A. Sabounghi --------------------------------------- Name: Edgar A. Sabounghi Title: Vice President AMMC CDO II, LTD By: American Money Management Corp., as Collateral Manager By:/s/ David P. Meyer --------------------------------------- Name: David P. Meyer Title: Vice President NORTHWOODS CAPITAL LIMITED By: Angelo, Gordon & Co., L.P., as Collateral Manager By:/s/ John W. Fraser --------------------------------------- Name: John W. Fraser Title: Managing Director KZH CNC LLC By:/s/ Anthony Iarrobino --------------------------------------- Name: Anthony Iarrobino Title: Authorized Agent AMMC/CDO I LIMITED By: American Money Management Corp., as Collateral Manager By:/s/ David P. Meyer --------------------------------------- Name: David P. Meyer Title: Vice President NORTHWOODS CAPITAL II LTD By: Angelo, Gordon & Co., L.P., as Collateral Manager By:/s/ John W. Fraser --------------------------------------- Name: John W. Fraser Title: Managing Director WINGED FOOT FUNDING TRUST By: --------------------------------------- Name: Title: LIBERTY-STEIN ROE ADVISOR FLOATING RATE ADVANTAGE FUND By: Stein Roe & Farnham Incorporated, As Advisor By:/s/ Brian W. Good --------------------------------------- Name: Brian W. Good Title: Senior Vice President and Portfolio Manager OPPENHEIMER SENIOR FLOATING FUND By: --------------------------------------- Name: Title: KZH RIVERSIDE LLC By: --------------------------------------- Name: Title: ALLIANCE CAPITAL MANAGEMENT L.P., as Manager on behalf of ALLIANCE CAPITAL FUNDING, L.L.C., as Assignee by: ALLIANCE CAPITAL MANAGEMENT CORPORATION, General Partner of Alliance Capital Management L.P. By:/s/ Scott Van den Bosch --------------------------------------- Name: Scott Van den Bosch Title: Assistant Vice President AMARANTH FUND LP By:/s/ Charles H. Winkler --------------------------------------- Name: Charles H. Winkler Title: Chief Operating Officer AVALON CAPITAL LTD. 2 By: INVESCO Senior Secured Management Inc. As Portofolio Advisor By: /s/ Scott Baskind --------------------------------------- Name: Scott Baskind Title: Authorized Signatory HARBOURVIEW CLO IV LTD By: --------------------------------------- Name: Title: SRS STRATEGIES (CAYMAN) LP By: Stanfield Capital Partners LLC As its Investment Manager By:/s/ Kevin Schweitzer --------------------------------------- Name: Kevin Schweitzer Title: Managing Director AMARA 2 FINANCE LTD. By: INVESCO Senior Secured Management, Inc., as Financial Manager By:/s/ Scott Baskind --------------------------------------- Name: Scott Baskind Title: Authorized Signatory AMARA-1 FINANCE LTD. By: INVESCO Senior Secured Management, Inc., as Financial Manager By:/s/ Scott Baskind --------------------------------------- Name: Scott Baskind Title: Authorized Signatory OASIS COLLATERALIZED HIGH INCOME PORTFOLIOS-1, LTD. By: INVESCO Senior Secured Management Inc., As Subadvisor By:/s/ Scott Baskind --------------------------------------- Name: Scott Baskind Title: Authorized Signatory AXIS/SRS LIMITED By: Stanfield Capital Partners LLC As its Sub-Manager By:/s/ Kevin Schweitzer --------------------------------------- Name: Kevin Schweitzer Title: Managing Director Acknowledged by: CIHC, INCORPORATED By:/s/ Gary C. Wendt ------------------ Name: Gary C. Wendt Title: Chief Executive Officer SCHEDULE I
Indebtedness ------------------------------------------------------------------------------------- ------------------------------- Indenture Interest 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", and together with the New 8.75% Notes, the "New Notes") ------------------------------------------------------------------------------------- ------------------------------- ------------------------------------------------------------------------------------- ------------------------------- 8.125% Senior Notes due February 2003 issued pursuant to the Senior Indenture dated August 15, 2002 February 18, 1993 ------------------------------------------------------------------------------------- ------------------------------- ------------------------------------------------------------------------------------- ------------------------------- 6.75% FELINE PRIDES due February 2003 August 16, 2002 ------------------------------------------------------------------------------------- -------------------------------
SCHEDULE II CFC Facilities 1. Third Amended and Restated Master Repurchase Agreement between Merrill Lynch 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 Lehman 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 Lehman 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 Lehman 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. Master Repurchase Agreement between Deutsche Banc Sharps Pixley Inc., Aspen Funding Corp. and Conseco Financing SP Corp. - Seven dated May 4, 2001, and related documents entered into in connection therewith. 7. 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).