Exhibit 10.46.6
AMENDMENT TO FIRST RESIDUAL
FACILITY (ASSET ASSIGNMENT AGREEMENT)
This Amendment to First Residual Facility (Asset Assignment Agreement)
(this "Amendment") amends the Asset Assignment Agreement (as amended to the date
hereof, the "Assignment Agreement"), dated as of February 13, 1998, by and
between Lehman ALl Inc. (the "Lender") as assignee of Lehman Commercial Paper,
Inc. and Green Tree Residual Finance Corp. I (the "Borrower").
WHEREAS, capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Assignment Agreement; and
WHEREAS, the parties desire to amend certain provisions of the
Assignment Agreement in the following respects;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree that the Assignment Agreement is hereby
amended as follows:
1. Amendment to Assignment Agreement. Section 2(d) of the Assignment
Agreement is hereby amended by adding the following sentence at the end thereof:
Notwithstanding anything in this Section 2( d) to the contrary, Lender
hereby agrees that it shall lend, subject to the terms and conditions
contained in this Agreement and in that certain Amended and Restate
Forbearance Agreement dated as of October 2, 2002 by and among:
Guarantor; Borrower, Green Tree Finance Corp. - Five, Lehman
Commercial Paper Inc. and Lehman Brothers Inc., to the Borrower the
proceeds of the Pledged Assets Lender receives on or about October
16,2002 in an amount not to exceed $10,000, after application of such
proceeds pursuant to subclauses (i) and (ii) above but before any
application of such proceeds pursuant to subclauses (iii), (iv) and
(v) above (such loan proceeds referred to herein as the "October Loan
Amount"). At the time the October Loan Amount is funded, the Loan
Balance shall be deemed to be increased by an amount equal to the
amount so funded. For the avoidance of doubt, Lender shall in no event
lend to the Borrower hereunder an amount in excess of $10,000,000
during the period commencing on October 4,2002 and ending on November
29, 2002.
2. Costs and Expenses. Pursuant to Section 10 of the Assignment
Agreement, Borrower agrees to pay on demand all reasonable costs and expenses of
Lender in connection with this Amendment.
3. Representations and Warranties.
(a) The execution, delivery and performance by Borrower of this
Amendment have been duly authorized by all necessary or proper corporate action
on the part of Borrower and do not require the consent or approval of any Person
that has been not obtained.
(b) Borrower acknowledges that it has no defense, offset, claim or
counterclaim with respect to any of its obligations to make payments under the
Assignment Agreement. .
(c) This Amendment and each of the other agreements, as amended
hereby, to which Borrower is a party constitute legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance with their
respective terms.
(d) Borrower has delivered to the Lender pursuant to the Assignment
Agreement all Pledged Assets (as defined in the Assignment Agreement).
4. Covenants.
(a) Guarantor and Borrower shall in good faith work with Lender and
Lehman Brothers Inc. (collectively with Lender, "Lehman") during the Forbearance
Period (as defined in that certain Amended and Restated Forbearance Agreement
dated as of October 4, 2002 (the "Forbearance Agreement")) to (i) modify/amend
the relevant Pooling and Servicing Agreements to allow for a servicer transfer
(which amendment, and any other amendments to such Pooling and Servicing
Agreements proposed by Guarantor or Borrower must be in form and substance
satisfactory to Lehman), (ii) effect the transfer of the servicing rights and
platform to a transferee reasonably acceptable to Lehman for consideration to be
determined, and (iii) transfer a majority of the equity of the Guarantor to a
transferee reasonably acceptable to Lehman for consideration to be determined.
(b) Guarantor and Borrower. shall work in good. faith to prepare a
restructuring plan, a preliminary version of which shall be delivered to Lehman
on or before October 29, 2002 and the final version of which shall be delivered
to Lehman on or before November 13, 2002 in a form reasonably acceptable to
Lehman.
(c) Guarantor shall deliver daily liquidity schedules to Lehman and
other reports as Lehman reasonably requests.
(d) Guarantor shall maintain or cause to be maintained servicing
standards consistent with market practice.
(e) Guarantor shall not make any dividends, payments Many kind or
other distributions to its parent or any affiliates.
(f) Guarantor shall provide Lehman with full access to the Guarantor
and its books, records, executives and officers.
(g) Guarantor will, within five (5) days of written request by
Lelmlari at any time from and after November 23, 2002, hire a crisis manager
reasonably acceptable to Lehman.
(h) Guarantor shall not implement any key employee retention programs
unless reasonably acceptable to Lehman.
Guarantor and the Borrower hereby agree and acknowledge that any
failure by the Guarantor or the Borrower to comply with any of covenants in this
Section or any other terms and conditions of this Amendment shall constitute
(i), with respect to the covenants contained in Section 4(b), (e), (f), (g) and
(h), an immediate Event of Default and shall not be subject to cure or any grace
period, (ii) with respect to the covenants contained in Section 4(a) and (d), an
Event of Default three Business Days after Lehman has notified the Guarantor or
the Borrower, with a copy to the Guarantor, of any such failure and the
Guarantor or the Borrower fails to cure such failure within such time and (ill)
with respect to the covenant contained in Section 4( c), an Event of Default one
Business Day after Lehman has notified the Guarantor or the Borrower, with a
copy to the Guarantor, and the Guarantor or the Borrower fails to cure such
failure, within such time.
5. Reference to and Effect on the Assignment Agreement and Related
Documents.
(a) Except as specifically amended herein, the Assignment Agreement is
and shall continue to be in full force and. effect and is hereby in all respects
ratified and confirmed. On and after the date hereof each reference in the
Assignment Agreement to "this Agreement," "hereunder," "hereof" or words of like
import referring to the Assignment Agreement, and each reference in each other
document executed in connection with or pursuant to the Assignment Agreement to
the "Agreement," the "Residual Agreement" or "thereunder" or "thereof" (when
referring to the Assignment Agreement) or words of like import referring to the
Assignment Agreement, shall mean and be a reference to the Assignment Agreement
as amended hereby.
(b) Except as specifically amended above, the Assignment Agreement and
all documents executed pursuant thereto or in connection therewith are and shall
continue to . be in full force and effect and ate hereby in all respects
ratified and confirmed and the Guarantor hereby ratifies and confirms its
unconditional guarantee of the obligations of the Borrower under the Assignment
Agreement and the Repurchase Agreement (as defined herein) pursuant to the
Guaranty Agreement.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as an amendment, waiver or
modification of any right, power or remedy of Lender, nor constitute an
amendment, waiver or modification of any other provisions of the Assignment
Agreement or any other document executed in connection therewith.
6. Fee. The Borrower hereby acknowledges that a non-refundable fee in
the amount of $12,500,000 (the "Fee Amount") was fully earned on September 30,
2002 and the Loan Balance under the Assignment Agreement automatically increased
by an amount equal to the Fee Amount The Borrower hereby covenants and .agrees
that it shall pay a portion of the Fee Amount to Lender on or before November
29, 2002 in immediately available funds in an amount equal to $5,000,000, as an
initial installment, with the remaining balance of the Fee Amount due and
payable upon the earlier of (i) the Maturity Date and. (ii) the date on which
the Facility
Balance is paid in full and the Assignment Agreement is terminated and Lender
hereby agrees that the Loan Balance under the Assignment Agreement shall be
reduced at the time of each such payment in the amount of such payment. The
Borrower acknowledges that the obligation to pay the Fee Amount shall in no way
be considered a substitution or replacement of any other obligation of the
Borrower to pay any other fees under the Assignment Agreement, . any other
Related Document or any other document executed in connection with any of the
foregoing.
7. Indemnification and Release. The Borrower and Guarantor hereby,
jointly and severally, agree to release and indemnify Lender, Lender's designees
and each of its officers, directors, employees and agents ("Indemnified
Parties") from and against any and all liabilities,' obligations, losses,
damages, penalties, actions, judgments, suits, taxes (other than income taxes of
Lender), fees, costs, expenses (including reasonable. attorneys fees and
disbursements) or disbursements (all of the foregoing, collectively "Indemnified
Amounts") which may at any time (including, without limitation, such time as
this Amendment or the Assignment Agreement shall no longer be in effect) be
imposed on or asserted against any Indemnified Party in any way whatsoever
arising out of or in connection with, or relating to, this Amendment or any
transactions thereunder or any action taken or omitted to be taken by the
Borrower or the Guarantor or any of their respective Affiliates under or in
connection with the. foregoing; provided. that the Borrower and the Guarantor
shall not be liable for Indemnified Amounts resulting from the gross negligence
or willful misconduct of any Indemnified Party.
8. Complete Agreement. This Amendment contains the final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof superseding all prior oral or written understandings.
9. No Waiver. Please note that the execution, delivery and performance
of this Amendment does not constitute a waiver of any Event of Default (as
defined in the respective agreements) pursuant to (i) the Assignment Agreement,
(ii) the Master Repurchase Agreement dated as of September 29,1999 (the
"Repurchase Agreement") by and between Lehman ALI Inc., as buyer and Green Tree
Residual Finance Corp. I, as seller, or (iii) the Amended and Restated Master
Repurchase Agreement dated as of January 30, 2002 by and between Green Tree
Finance Corp. - Five, as borrower and Lehman Commercial Paper Inc., as lender,
each as has been amended or of any of the rights and remedies of Lehman
Commercial Paper Inc., Lehman ALI Inc. or Lehman Brothers Inc. pursuant to such
agreements or documents executed in connection therewith and such lenders
reserve' all of their rights and remedies pursuant to such agreements, at law or
otherwise, unless, in each case, otherwise expressly agreed to in writing by
Lehman Commercial Paper Inc., Lehman ALI Inc. or Lehman Brothers Inc., as
appropriate.
10. Third Party Beneficiary. Lehman Brothers Inc., Lehman Commercial
Paper Inc. and each of their respective Affiliates shall be express third party
beneficiaries of this Amendment.
11. Execution Counterparts. This Amendment may be executed in any
number of counterparts and by different parties in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Signature pages
maybe detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are attached to the
same document. Delivery of an executed signature page of this Amendment by
facsimile transmission shall be as effective as delivery of manually executed
counterpart hereto.
12. Governing Law. This Amendment shall be governed by, and construed
and enforced in accordance with, the law of the State of New York.
13. Headings. Section headings contained in this Amendment are
included herein for the convenience of reference only and shall not constitute
part of this Amendment for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
October 9, 2002.
GREEN TREE RESIDUAL FINANCE CORP. I
By: /s/ Cheryl A. Collins
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Name: Cheryl A. Collins
Title: Vice President and Assistant Treasurer
LEHMAN ALI INC.
By:
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Name:
Title:
Approved and Agreed to:
CONSECO FINANCE CORP., as Guarantor
By: /s/ Cheryl A. Collins
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Name: Cheryl A. Collins
Title: Vice President and Assistant Treasurer
[Signature Page to Amendment to First Residual
Facility (Asset Assignment Agreement)]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
October 9, 2002.
GREEN TREE RESIDUAL FINANCE CORP. I
By:
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Name:
Title:
LEHMAN ALI INC.
By: /s/ Vincent Primiano
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Name: Vincent Primiano
Title: Vice President
Approved and Agreed to:
CONSECO FINANCE CORP., as Guarantor
By:
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Name:
Title:
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