EXHIBIT 4.6
AGREEMENT, DATED AS OF SEPTEMBER 22, 2000,
among
CONSECO, INC.,
as Guarantor,
THE OTHER FINANCIAL INSTITUTIONS
PARTY HERETO,
as Bank Lenders
and
THE CHASE MANHATTAN BANK,
as Administrative Agent,
RELATING TO
1999 DIRECTOR & OFFICER LOAN
CREDIT AGREEMENT
Table of Contents
Page
SECTION 1. DEFINITIONS.............................................. 2
SECTION 1.1 Certain Defined Terms.................................. 2
SECTION 1.2 Additional Definitions................................. 3
SECTION 2. Commitment for New Loans................................. 4
SECTION 3. Forbearance..............................................
SECTION 4. Fees..................................................... 5
SECTION 5. Covenants................................................ 5
SECTION 6. Events of Default........................................ 6
SECTION 7. Conditions Precedent to Effectiveness of this Agreement.. 6
SECTION 8. Termination Events....................................... 7
SECTION 9. Effect of Termination.................................... 8
SECTION 10. The Agent............................................... 8
SECTION 11. Representations and Warranties.......................... 8
SECTION 12. MISCELLANEOUS........................................... 9
SECTION 12.1 Waivers and Amendments................................ 9
SECTION 12.2 Notices............................................... 10
SECTION 12.3 Indemnity............................................. 10
SECTION 12.4 No Third Party Beneficiaries.......................... 10
SECTION 12.5 Waivers............................................... 11
SECTION 12.6 No Forbearance/Remedies Cumulative.................... 11
SECTION 12.7 Entire Understanding.................................. 11
SECTION 12.8 Expenses.............................................. 11
SECTION 12.9 Effect of Agreement on Existing Credit Agreement...... 12
SECTION 12.10 GOVERNING LAW........................................ 12
SECTION 12.11 Counterparts......................................... 12
SECTION 12.12 SUBMISSION TO JURISDICTION; WAIVER OF VENUE.......... 13
SECTION 12.13 Successors and Assigns............................... 13
SECTION 12.14 Interpretation....................................... 14
SECTION 12.15 WAIVER OF JURY TRIAL................................. 14
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SCHEDULE I SUMMARY OF TERMS AND CONDITIONS FOR NEW LOANS
SCHEDULE II APPENDIX
SCHEDULE III PLAN OUTLINE
EXHIBIT A FORM OF CIHC GUARANTY
EXHIBIT B FORM OF AMENDED AND RESTATED GUARANTY
EXHIBIT C FORM OF NEW CONSECO GUARANTY
EXHIBIT D FORM OF NEW CIHC GUARANTY
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AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of September 22,
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2000, among Conseco, Inc. (the "Guarantor"), the several financial institutions
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party to this Agreement (herein, together with any eligible assignees thereof,
collectively called the "Banks" and each individually, a "Bank"), and THE CHASE
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MANHATTAN BANK ("Chase"), as administrative agent for the Banks (herein in such
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capacity, together with any successors thereto in such capacity, called the
"Administrative Agent").
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Recitals
WHEREAS, certain individuals (herein, collectively called the
"Borrowers" and each individually, a "Borrower"), the Banks, and the
---------- --------
Administrative Agent are parties to that certain Credit Agreement, dated as of
September 15, 1999 (the "Original Credit Agreement"), which has been terminated
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and replaced pursuant to that certain Termination and Replacement Agreement,
dated as of May 30, 2000 (the new credit agreement provided for therein, as
amended or modified through the date hereof, the "Existing Credit Agreement"),
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whereby the Banks made loans to the Borrowers, on the terms and subject to the
conditions set forth therein;
WHEREAS, as a condition to the Administrative Agent and the Banks
entering into the Original Credit Agreement, Guarantor was required to and did
execute and deliver its Guaranty, dated as of September 15, 1999 (the "Original
--------
Guaranty"), and as a condition to the Administrative Agent and the Banks
--------
entering into the Existing Credit Agreement, Guarantor was required to and did
execute and deliver its amended and restated Guaranty dated as of May 30, 2000
(the "Existing Guaranty");
-----------------
WHEREAS, consistent with the provisions of the Original Credit
Agreement and the Existing Credit Agreement, the proceeds of such loans were
used by the Borrowers solely to purchase common stock, no par value per share,
of Guarantor;
WHEREAS, in connection with a proposed program contemplated by the
Guarantor, the Guarantor has requested that the Administrative Agent and the
Banks agree to commit to extend loans to any Borrower to refinance the Loans,
with such loans to have a stated maturity of December 31, 2003;
WHEREAS, the Guarantor has requested that the Administrative Agent and
the Banks, pending implementation of such program and making of such loans,
acknowledge certain matters as to the Existing Guaranty, as amended and restated
in connection herewith;
WHEREAS, the Administrative Agent and the Banks are willing, but only
on the terms and conditions set forth herein, to agree to the aforementioned
requests of the Guarantor;
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS.
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SECTION 1.1 Certain Defined Terms. Capitalized terms used and not
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otherwise defined in this Agreement shall have the meanings assigned thereto in
the Existing Credit Agreement. The following terms shall have the following
meanings:
"Administrative Agent" shall have the meaning set forth in the
--------------------
preamble hereto.
"Agreement" shall have the meaning set forth in the preamble hereto.
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"Agreement Fee" shall have the meaning set forth in Section 4 hereof.
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"Amended and Restated Guaranty" shall be substantially in the form of
-----------------------------
Exhibit B hereto.
"Appendix" means the Appendix attached as Schedule II to this
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Agreement, which is hereby incorporated by reference, as from time to time
amended with the consent of the Required Banks.
"Bank" shall have the meaning set forth in the preamble hereto.
----
"Borrower" shall have the meaning set forth in the first Recital.
--------
"Chase" shall have the meaning set forth in the preamble hereto.
-----
"CIHC" shall mean CIHC, Incorporated, a Delaware corporation, which is
----
a direct wholly-owned subsidiary of Guarantor.
"CIHC Guaranty" shall have the meaning set forth in Section 1.01 of
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the Appendix, including, without limitation, with respect to the termination
thereof, and shall be substantially in the form of Exhibit A hereto.
"Commitment" shall have the meaning specified in Section 2(a) hereof.
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"Commitment Expiration Date" shall mean as to any Borrower, October
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31, 2000 (or such later date as to which the Administrative Agent agrees in
writing but not beyond December 15, 2000).
"Compliance Certificate" shall have the meaning set forth in Section
----------------------
1.01 of the Appendix.
"D&O Facilities" shall have the meaning set forth in Section 1.01 of
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the Appendix.
"Effective Date" shall mean the date on or before September 22, 2000
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on which the conditions to the effectiveness of this Agreement set forth in
Section 7 hereof shall have been satisfied or waived in their sole and absolute
discretion by the Administrative Agent and the Banks.
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"Existing Credit Agreement" shall have the meaning set forth in the
-------------------------
first Recital.
"Existing Guaranty" shall have the meaning set forth in the second
-----------------
Recital.
"Guarantor" shall have the meaning set forth in the preamble hereto.
---------
"New CIHC Guaranty" shall mean the guaranty to be executed and
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delivered by CIHC in connection with any New Loans, substantially in the form of
Exhibit D hereto.
"New Conseco Guaranty" shall mean the guaranty to be executed and
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delivered by Conseco with any New Loans, substantially in the form of Exhibit C
hereto.
"New Loan Documents" shall mean the credit agreement, promissory
------------------
notes, instruments, guarantees (including, without limitation, the New Conseco
Guaranty and the New CIHC Guaranty), borrower pledge agreements, releases, and
other documents providing for loans to refinance a Borrowers' Loans upon the
terms and conditions generally described in Schedule I hereto; it being
understood that the Administrative Agent shall hereby be granted by each of the
Banks a power of attorney to execute such documents on behalf of the Banks in
its discretion.
"New Loans" shall have the meaning set forth in Section 2(a) hereof.
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"Original Credit Agreement" shall have the meaning set forth in the
-------------------------
first Recital.
"Original Guaranty" shall have the meaning set forth in the second
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Recital.
"Plan" means a plan to be made available to certain Borrowers, which,
----
among other things, is to be designed by Guarantor to assist such Borrowers to
reduce the principal amounts of the loans under the D&O Facilities to achieve
the $25 Benchmark.
"Subsidiaries" shall have the meaning as assigned thereto in Section
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1.01 of the Appendix
"Stated Termination Date" shall mean December 31, 2003.
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"Termination Event" shall have the meaning set forth in Section 8
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hereof.
"$25 Benchmark" shall mean, for all of the loans of the relevant
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Borrower or Borrowers under the D&O Facilities, an average loan balance equal to
$25 per share for all of the stock purchased by or on behalf of the relevant
Borrower or Borrowers, as the case may be.
SECTION 1.2 Additional Definitions. The definitions set forth in
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Section 1.01 of the Appendix are hereby incorporated by reference and shall be
applicable to the provisions incorporated by reference pursuant to Sections 5(a)
and 6 hereof.
SECTION 2. Commitment for New Loans.
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(a) Commitment. Subject to the conditions set forth in Section 2(c)
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hereof, the Banks and the Administrative Agent hereby commit (the "Commitment")
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to enter into New Loan Documents with any Borrower who has accepted in writing
(and otherwise satisfied the
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conditions of) the Plan for the making of loans to refinance such Borrower's
Loans (the "New Loans") consistent with the terms and conditions generally
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described on Schedule I hereto, including providing for a stated maturity date
of December 31, 2003.
(b) Commitment Expiration. Should this Agreement become effective
---------------------
pursuant to the provisions of Section 7 hereof, the Commitment shall expire as
to any Borrower on or before the Commitment Expiration Date, without any other
action being required of the Administrative Agent or any of the Banks, if any of
the following shall have occurred and be continuing:
(i) The Borrower shall not have accepted the terms of the
Commitment on the terms and conditions set forth on Schedule I hereto and
in Section 2(c) hereof and shall have failed to have executed and delivered
the New Loan Documents to which he or she is a party on or before
Commitment Expiration Date ;
(ii) On or before the Commitment Expiration Date, (a) the Guarantor
shall have failed to execute and deliver the New Conseco Guaranty, or (b)
CIHC shall have failed to execute and deliver the New CIHC Guaranty; or
(iii) Any Termination Event shall have occurred and be continuing.
(c) Commitment Conditions. The Commitment as to any Borrower is
---------------------
conditioned upon the satisfaction of the following conditions:
(i) This Agreement shall have become effective pursuant to Section
7 hereof;
(ii) The Borrower shall have executed and delivered to the
Administrative Agent the New Loan Documents to which he or she is a party
in form and substance satisfactory to the Banks on or before the applicable
Commitment Expiration Date;
(iii) The Guarantor shall have executed and delivered the New Conseco
Guaranty on or before the applicable Commitment Expiration Date;
(iv) CIHC shall have executed and delivered the New CIHC Guaranty on
or before the applicable Commitment Expiration Date;
(v) To the extent not generally described on Schedule I hereto, the
other conditions set forth in the New Loan Documents shall be similar to
the conditions, including as to the satisfaction of any regulatory
requirements, under the Existing Credit Agreement, and all of such
conditions shall have been satisfied on or before the applicable Commitment
Expiration Date;
(vi) The absence of the occurrence and continuation of any
Termination Event; and
(vii) The Guarantor shall have certified in writing that the
applicable Borrower has accepted the Plan and has satisfied the conditions
to the Plan governing such Borrower's participation in the Plan.
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(d) Commitment Expiration/Termination Notice. The Administrative
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Agent shall undertake to provide the Guarantor with written notice of
either the expiration of the Commitment with respect to any Borrower or the
refusal of any of the Administrative Agent and the Banks to enter into the
New Loan Documents with any Borrower for the reasons set forth in Section
2(b) or 2(c) hereof; provided, however, that the Administrative Agent's
failure to provide such notice shall not affect in any manner the right of
any of the Administrative Agent and the Banks to refuse to close under such
circumstances.
SECTION 3. Forbearance. The Administrative Agent and the Banks
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hereby agree to forbear from the exercise of any rights and remedies any of them
may have under the Existing Credit Agreement or any other Loan Document until
the earlier of (i) the Commitment Expiration Date and (ii) the occurrence of a
Termination Event. The forbearance of the Administrative Agent and the Banks
under this Section 3 shall not constitute an amendment, waiver or modification
of the Existing Credit Agreement or any other Loan Document.
SECTION 4. Fees. The Guarantor hereby agrees that, upon the
----
Effective Date, the Guarantor shall be obligated to pay, and shall pay, to the
Administrative Agent, for the pro rata benefit of the Banks, an agreement fee
(the "Agreement Fee") in immediately available funds equal to one percent (1%)
of the principal amount of the Loans outstanding on such date.
SECTION 5. Covenants.
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(a) The affirmative and negative covenants set forth in Article III
and IV, respectively, of the Appendix are hereby incorporated by this
reference.
(b) In addition to its other covenants hereunder, the Guarantor
hereby agrees: (i) to provide the Administrative Agent a copy of the Plan
once finalized and, in any event, no later than December 31, 2000, (ii) to
use the Guarantor's commercially reasonable (and otherwise lawful) best
efforts to sign up Borrowers to the Plan and, as part thereof, to obtain
from the Borrowers paydowns, or commitments for paydowns, on the loans
under the D&O Facilities and (iii) in each Compliance Certificate delivered
pursuant to Section 3.02(a) of the Appendix after the Effective Date and
through the date of payment in full of the Loans or New Loans, to provide
the Administrative Agent with a summary of any changes to the Plan to date,
a statement of the effective date of any such changes, and, if there has
been any changes thereto since the date of the delivery of the previous
Compliance Certificate, a copy of the Plan as then constituted.
SECTION 6. Events of Default. The Events of Default set forth in
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Section 5.01 of the Appendix are hereby incorporated by this reference.
SECTION 7. Conditions Precedent to Effectiveness of this Agreement.
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This Agreement shall become effective only upon the satisfaction of the
following conditions on or before the Effective Date :
(a) The Administrative Agent shall have received duly executed
counterparts of this Agreement from the Guarantor and the Banks.
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(b) The Guarantor shall have paid the Agreement Fee to the
Administrative Agent for the pro rata benefit of the Banks;
(c) The Guarantor shall have delivered to the Administrative Agent
the Amended and Restated Guaranty;
(d) CIHC and Guarantor shall have delivered to the Administrative
Agent the CIHC Guaranty;
(e) The other Relevant Facilities (as such term is defined in the
Appendix) shall have been amended in a form reasonably satisfactory to the
Required Banks, and the other transactions contemplated as part of such
amendments to be consummated at closing shall have been so consummated;
(f) The Guarantor shall have paid all fees and expenses, including
those payable pursuant to Section 12.8 hereof, required to be paid by it on such
Effective Date;
(g) Each of the Guarantor and CIHC shall have delivered to the
Administrative Agent, for the benefit of itself and the Banks, such officer
certificates, legal opinions, and other documents or instruments as shall be
required by the Administrative Agent, including reasonable evidence of its
authority to execute, deliver and perform its obligations under this Agreement,
the Amended and Restated Guaranty and the CIHC Guaranty (as the case may be) and
including opinions of the general counsel to the Guarantor and CIHC and of Weil,
Gotshal & Xxxxxx LLP acceptable (both in form and content and as to which
counsel is delivering the particular opinion) to the Administrative Agent; and
(h) The Administrative Agent shall have received such other
documents, certificates or instruments as may be reasonably requested by the
Administrative Agent and the Banks.
The Administrative Agent shall undertake to provide the Guarantor with written
notice as to whether the foregoing conditions have been satisfied and this
Agreement thus has become effective (or instead, whether this Agreement is null
and void, all as if it had never existed); provided, however, that the
Administrative Agent's failure to provide such notice shall not affect the
determination as to whether such conditions have been satisfied and whether,
concomitantly this Agreement has become effective.
SECTION 8. Termination Events. Should this Agreement become effective
------------------
pursuant to the provisions of Section 7 hereof, the Administrative Agent, upon
the affirmative votes of the Required Banks, may terminate any of the
obligations or acknowledgments of the Administrative Agent and the Banks under
this Agreement (including, without limitation, those with respect to the
Commitment), if any of the following shall have occurred or otherwise shall be
continuing (each, a "Termination Event"):
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(a) Any "Event of Default" under Section 5.01 of the Appendix (as
----------------
incorporated herein pursuant to Section 6 hereof) shall occur and be continuing;
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(b) There shall have been entered any final judgment, or injunction,
or other order by any court enjoining, prohibiting, discontinuing or otherwise
impairing the validity or enforceability of this Agreement, the Amended and
Restated Guaranty, the CIHC Guaranty, or any of the other documents contemplated
by this Agreement, or any of the transactions contemplated by this Agreement;
(c) The Plan, having substantially the same material terms as set
forth on Schedule III hereto, shall not be in place on or before December 31,
2000, or, if in place on or before that date, subsequently shall have been
modified in a manner materially adverse to the interests of the Administrative
Agent and the Banks or rescinded by the Guarantor (or enjoined or prohibited by
a final judgment entered by any court);
(d) Any Event of Default with respect to the Guarantor shall occur
and shall be continuing under the Existing Credit Agreement;
(e) Any event of default under the Amended and Restated Guaranty
shall occur and be continuing;
(f) Any event of default under the CIHC Guaranty shall occur and be
continuing;
(g) The Guarantor shall otherwise be in default of any of its
obligations hereunder and such default shall be continuing for a period of
thirty (30) days after written notice by the Administrative Agent to the
Guarantor.
Where the Administrative Agent, upon the affirmative votes of the Required
Banks, shall have elected to terminate this Agreement upon the occurrence of any
one or more of the foregoing events, the Administrative Agent shall undertake to
provide the Guarantor with written notice of such termination; provided,
however, that the Administrative Agent's failure to provide such notice shall
not affect in any manner the effectiveness of such termination.
SECTION 9. Effect of Termination. Where the Administrative Agent,
---------------------
upon the affirmative votes of the Required Banks, shall have elected to
terminate this Agreement upon the occurrence of one or more of the events set
forth in Section 8 hereof, all obligations of the Administrative Agent and any
of the Banks hereunder shall terminate and this Agreement shall otherwise be
terminated without any liability on the part of (or any alteration of rights,
powers or remedies belonging to) the Administrative Agent or any Bank, and
consistent therewith, each of the Administrative Agent and the Banks shall
remain entitled, but not required, to exercise (in whatever manner, to whatever
extent, at whatever time, and as often, seldom, or not at all as it may choose
in its sole and absolute discretion) any and all (or any combination) of its
rights, powers, and remedies against the Guarantor, CIHC, any other person or
entity (including any Borrower), and/or any of the property of the Guarantor,
CIHC, and/or any other person or entity (and/or any combination of any such
person or entity or property) under any guaranty (including, without limitation,
the Amended and Restated Guaranty, the CIHC Guaranty, any other agreement or
document, and/or any New Loan Documents (including any required guarantees
and/or reaffirmed guarantees relating thereto) entered into prior to such
termination date, and/or applicable law, all as if this Agreement had never been
executed and delivered by the parties
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hereto (but as if any and all other agreements had been so executed and
delivered by the pertinent parties thereto), and all without any requirement of
providing prior notice with respect thereto. Consistent with, but not in
limitation of, the foregoing, any exercise or non-exercise (as the case may be)
by the Administrative Agent of any such rights, powers and/or remedies,
including, without limitation, the complete failure to exercise any such rights,
powers, and/or remedies (whether such failure occurs prior to or subsequent to
any termination of this Agreement), against (i) any or all Borrowers (or any
combination thereof) or any property of any thereof, (ii) the Guarantor or any
of the Guarantor's property or (iii) CIHC and/or CIHC's property, as the case
may be, shall in no manner limit the ability of the Administrative Agent to
exercise any such rights, powers, and/or remedies, whether under any agreement
(including any guaranty or pledge agreement) and/or applicable law against any
Borrower, the Guarantor (or its property, including any property pledged
pursuant to this Agreement) and/or CIHC (or its property). Without limiting the
generality of the foregoing, the provisions of Sections 4 -12 hereof shall
survive any such termination.
SECTION 10. The Agent. The Banks acknowledge that the provisions of
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Section 11 of the Existing Credit Agreement are applicable to this Agreement in
every respect. Consistent with, but not in limitation thereof, each Bank hereby
agrees that the provisions of Section 11 of the Existing Credit Agreement apply
to the Agent's execution, delivery, performance and other participation in this
Agreement and the transactions contemplated thereby, and the Agent shall have
the full benefit thereof, all as if such Section 11 of the Existing Credit
Agreement were set forth and restated herein.
SECTION 11. Representations and Warranties. Guarantor hereby
------------------------------
represents and warrants to each of the Administrative Agent and the Banks that:
(a) Guarantor has full corporate power and authority to execute,
deliver and perform this Agreement and each agreement executed in connection
herewith and to consummate the transactions contemplated hereby and thereby.
Guarantor has duly and validly executed and delivered this Agreement and has
duly and validly executed and delivered each agreement executed in connection
herewith. This Agreement, and each agreement executed in connection herewith,
constitutes legal, valid and binding obligations of Guarantor, in each case,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the enforcement of
creditors' rights generally, by equitable limitations on the availability of
specific remedies and by principles of equity.
(b) No consent, authorization or approval of, filing or registration
with, or cooperation from, any Governmental Authority or any other person or
entity not a party to this Agreement is necessary in connection with the
execution, delivery and performance by Guarantor of this Agreement and each
agreement executed in connection herewith or the consummation by Guarantor of
the transactions contemplated hereby or thereby other than immaterial consents,
authorizations, approvals, filings or registrations and those already obtained.
(c) The execution, delivery and performance by Guarantor of this
Agreement and its related agreements and the consummation by Guarantor of the
transactions contemplated
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hereby and thereby do not and will not (i) violate any law applicable to
Guarantor; or (ii) violate or conflict with any provision of any of the
certificate of incorporation, bylaws or similar organizational instruments of
Guarantor or any other material agreement or contract to which Guarantor is a
party.
These representations and warranties shall survive closing and any termination
of this Agreement.
SECTION 12. MISCELLANEOUS
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SECTION 12.1 Waivers and Amendments. The provisions of this
------------------------------------
Agreement may from time to time be amended, modified or waived, if such
amendment, modification, or waiver is in writing and consented to by the
Guarantor, the Required Banks, and the Administrative Agent; provided, however,
that no such amendment, modification or waiver:
(i) which would modify any requirement hereunder that any
particular action be taken by all Banks or by the Required Banks, shall be
effective without the consent of each Bank;
(ii) which should extend the Commitment Expiration Date beyond the
extensions expressly provided in the definition thereto with the agreement
of the Administrative Agent, which would otherwise substantially modify or
waive the Commitment conditions in Section 2(c) hereof or which would
materially and adversely modify any of the terms and conditions of the New
Loans generally described on Schedule I hereto, shall be effective without
the consent of each Bank;
(iii) which would adversely affect the interests, rights, or
obligations of the Administrative Agent (in such capacity) other than
removal in accordance with Section 11.6 of the Existing Credit Agreement,
shall be effective without the consent of the Administrative Agent.
SECTION 12.2 Notices. All notices, requests and other communications
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to any party hereunder shall be in writing (including bank wire, telex,
facsimile or similar writing) and shall be given to such party at its address,
facsimile or telex number set forth on the signature or acknowledgment pages
hereof or such other address, facsimile or telex number as such party may
hereafter specify for the purpose by written notice to the Administrative Agent
and Guarantor. Each such notice, request or other communication shall be
effective (a) if given by facsimile or telex, when such facsimile or telex is
transmitted to the facsimile or telex number specified in this Section and the
appropriate answerback or other confirmation is received, (b) if given by mail,
seventy-two (72) hours after such communication is deposited and sent via
certified or registered mail, return receipt requested, with first class postage
prepaid, addressed as aforesaid or (c) if given by any other means, when
delivered at the address specified in this Section, provided, that notices to
the Administrative Agent shall not be effective until received by the
Administrative Agent.
SECTION 12.3 Indemnity. Without limiting in any manner whatsoever
-----------------------
any of the claims, rights, powers and remedies of the Administrative Agent and
the Banks under any indemnity (including the indemnity set forth in Section 7.2
of the Amended and Restated
9
Guaranty), Guarantor agrees to indemnify the Administrative Agent, each Bank,
their affiliates and their respective directors, officers, employees, persons
controlling or controlled by any of them or their respective agents,
consultants, attorneys and advisors (the "Indemnified Parties") and hold each
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Indemnified Party harmless from and against any and all liabilities, losses,
claims, damages, costs and expenses of any kind to which any of the Indemnified
Parties may become subject whether directly or indirectly (including, without
limitation, the reasonable fees and disbursements of counsel for any Indemnified
Party), relating to or arising out of the Existing Credit Agreement, the Amended
and Restated Guaranty, the other Loan Documents, any actual or proposed use of
the proceeds of the Loans, any New Loans, this Agreement, any agreement executed
in connection herewith, the Plan, or any New Loan Documents; provided, that no
Indemnified Party shall have the right to be indemnified hereunder for its own
gross negligence or willful misconduct as determined by a court of competent
jurisdiction. All obligations of the Borrowers and Guarantor provided for in
this Section 12.3 shall survive the termination of the Existing Credit
Agreement, the Amended and Restated Guaranty, this Agreement, any agreement
executed in connection herewith, and any New Loan Documents.
SECTION 12.4 No Third Party Beneficiaries. This Agreement is solely
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for the benefit of the parties hereto (except solely to the extent that the
Borrowers shall be entitled to the benefits of the forbearance contained in
Section 3 of this Agreement), and no provision of this Agreement shall be deemed
to confer upon any other third parties any remedy, claim, liability,
reimbursement, cause of action or other right (including, without limitation,
any right to benefit from any forbearance on the part of the Administrative
Agent and/or the Banks in the exercise of any right, power, or remedy in
connection with, under or otherwise relating to the Existing Credit Agreement,
any other Loan Document and/or applicable law except as specifically set forth
in Section 3).
SECTION 12.5 Waivers. The failure of a party hereto at any time or
---------------------
times to require performance of any provision hereof shall in no manner affect
its right at a later time to enforce the same. No waiver by a party of any
condition or of any breach of any term, covenant, representation or warranty
contained in this Agreement shall be effective unless in writing, and no waiver
in any one or more instances shall be deemed to be a further or continuing
waiver of any such condition or breach in other instances or a waiver of any
other condition or breach of any other term, covenant, representation or
warranty.
SECTION 12.6 Remedies Cumulative. Consistent with, but not in
---------------------------------
limitation of, the provisions of this Agreement, this Agreement shall be limited
to its terms and narrowly construed, and neither the Administrative Agent nor
any Bank agrees to otherwise limit the exercise of any of its rights, powers or
remedies against any Borrower (or his or her property), the Guarantor (or its
property) and/or CIHC (or its property) under its respective guaranty, any other
agreement or document, applicable law, or otherwise except as expressly set
forth herein. The rights, powers, and/or remedies provided in this Agreement
shall be cumulative and shall not preclude the assertion or exercise of any
other rights or remedies available under law, in equity or otherwise except
solely to the extent expressly set forth herein; it being the intent of the
parties hereto that the Administrative Agent and the Banks are to have the
maximum flexibility under any agreement and/or applicable law with respect to
the exercise of any and/or all (or any combination of) such rights, powers,
and/or remedies, including, without limitation, as to any
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Borrower and/or its property (including, without limitation, any property
pledged as collateral to secure the obligations of any Borrower under the
Existing Credit Agreement).
SECTION 12.7 Entire Understanding. This Agreement and each agreement
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executed in connection herewith set forth the entire agreement and understanding
of the parties hereto with respect to the transactions contemplated hereby and
supersede any and all prior agreements, arrangements and understandings among
the parties relating to the subject matter hereof.
SECTION 12.8 Expenses. Without limiting in any manner any right of
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the Administrative Agent and the Bank to receive the reimbursement of the
expenses (including, without limitation, attorneys' fees and expenses) under the
Existing Credit Agreement and/or the Amended and Restated Guaranty, Guarantor
agrees to pay and reimburse the Administrative Agent for all of its reasonable
costs and expenses incurred in connection with the preparation and delivery of
this Agreement (and any agreement executed in connection herewith), including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
SECTION 12.9 Effect of Agreement on Existing Credit Agreement. Other
--------------------------------------------------------------
than as set forth in Section 3 and, consistent with, but not in limitation of,
the other provisions of this Agreement, nothing contained herein is intended as
a present amendment to the Existing Credit Agreement or any other Loan Document
or as agreement on the part of the Administrative Agent and the Banks to
forebear in the exercise of any of its or their rights, powers or remedies as to
any Borrower (or any Borrower's property) under the Existing Credit Agreement,
any other Loan Document to which any Borrower is a party (including any pledge
agreement), and/or any applicable law, and the Existing Credit Agreement and any
other Loan Document to which any Borrower is a party (including any pledge
agreement) shall continue to be and remain in full force and effect, pending the
execution and delivery of any New Loan Documents relating to such Borrower in
accordance with the other provisions of this Agreement. Specifically, this
Agreement shall not constitute under any circumstances an amendment,
modification, or waiver of any provision of the Existing Credit Agreement or any
Loan Document, other than as set forth in Section 3, and shall not be construed
as such under any circumstances or by any person or entity, including, without
limitation, for the benefit of any of the Borrowers; it being acknowledged that
the provisions relating to any Borrower herein (including those relating to the
Commitment) are for the benefit of and may be enforced only by the Guarantor and
not for or by any Borrower. Consistent with, but not in limitation of, the other
provisions of this Agreement (including the foregoing provisions of this Section
12.9), each of the Administrative Agent and the Banks waive none of, but instead
reserve all of, their respective rights, powers and remedies against any and all
of the Borrowers (including against any of their respective property whether
pledged as collateral or otherwise) under or in connection with the Existing
Credit Agreement, any other Loan Document, and/or applicable law and, consistent
with such express disclaimer of waiver and reservation of rights, shall be
entitled (unless and until they enter into a binding, written agreement to the
contrary), but not required, to exercise (in whatever manner, to whatever
extent, at whatever time, and as often, seldom, or not at all, as it may choose
in its sole and absolute discretion) any and/or all (or any combination) of such
rights, powers, and/or remedies against any and/or all (or any combination) of
the Borrowers and/or any of their property (including any property pledged as
collateral under any pledge agreement), all as if this
11
Agreement had never been executed and delivered by the parties hereto (but as if
any and all of such other agreements and instruments had been executed and
delivered by the pertinent parties thereto).
SECTION 12.10 GOVERNING LAW. THIS AGREEMENT SHALL BE A CONTRACT MADE
----------------------------
UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES. ALL OBLIGATIONS OF THE GUARANTOR AND RIGHTS OF THE
ADMINISTRATIVE AGENT AND THE BANKS IN RESPECT OF THE OBLIGATIONS OR LIABILITIES
EXPRESSED HEREIN SHALL BE IN ADDITION TO AND NOT IN LIMITATION OF THOSE PROVIDED
BY APPLICABLE LAW.
SECTION 12.11 Counterparts. This Agreement may be executed in any
---------------------------
number of counterparts and by the different parties on separate counterparts and
each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same agreement. When
counterparts executed by all the parties shall have been lodged with the
Administrative Agent (or, in the case of any Bank as to which an executed
counterpart shall not have been so lodged, the Administrative Agent shall have
received telegraphic, facsimile, telex or other written confirmation from such
Bank of execution of a counterpart hereof by such Bank), this Agreement shall
become effective as of the Effective Date hereof, and at such time the
Administrative Agent shall notify the Borrowers and each Bank.
SECTION 12.12 SUBMISSION TO JURISDICTION; WAIVER OF VENUE. THE
----------------------------------------------------------
ADMINISTRATIVE AGENT, EACH BANK AND GUARANTOR (A) HEREBY IRREVOCABLY SUBMIT TO
THE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW
YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE OTHER DOCUMENTS CONTEMPLATED HEREBY, AND THE ADMINISTRATIVE
AGENT, EACH BANK AND GUARANTOR HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE OR FEDERAL COURT, AND (B) AGREE NOT TO INSTITUTE ANY LEGAL ACTION OR
PROCEEDING AGAINST ANOTHER PARTY OR THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS
OR PROPERTY OF ANY THEREOF, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER DOCUMENTS CONTEMPLATED HEREBY, IN ANY COURT OTHER THAN AS HEREINABOVE
SPECIFIED IN THIS SECTION 12.12. THE ADMINISTRATIVE AGENT, EACH BANK AND
GUARANTOR HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION IT OR THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY
ACTION OR PROCEEDING (WHETHER BROUGHT BY ANY BORROWER, GUARANTOR, THE
ADMINISTRATIVE AGENT, ANY BANK, OR OTHERWISE) IN ANY COURT HEREINABOVE SPECIFIED
IN THIS SECTION 12.12 AS WELL AS ANY RIGHT IT OR THEY MAY NOW OR HEREAFTER HAVE
TO REMOVE ANY SUCH ACTION OR PROCEEDING, ONCE COMMENCED, TO ANOTHER COURT ON THE
GROUNDS OF FORUM NON CONVENIENS OR OTHERWISE. THE ADMINISTRATIVE AGENT, EACH
BANK AND GUARANTOR AGREE THAT A FINAL
12
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
SECTION 12.13 Successors and Assigns. This Agreement shall be
-------------------------------------
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that Guarantor may not
assign or transfer its rights or obligations under this Agreement or any other
document contemplated hereby without the prior written consent of all Banks.
Nothing contained herein shall limit the rights of the Banks to make assignments
or grant participations are subject to the provisions of Section 12 of the
Existing Credit Agreement; provided, however, that any such assignments and
participations insofar as such assignees' rights against or obligations to the
Guarantor (including the Guarantor's rights with respect to the Commitment) and
CIHC shall be subject to the provisions of this Agreement.
SECTION 12.14 Interpretation. The headings preceding the text of
-----------------------------
Articles and Sections included in this Agreement and the headings to Schedules
attached to this Agreement are for convenience only and shall not be deemed part
of this Agreement or be given any effect in interpreting this Agreement. The use
of the masculine, feminine or neuter gender or the singular or plural form of
words herein shall not limit any provision of this Agreement. The use of the
terms "including" or "include" shall in all cases herein mean "including,
without limitation" or "include", without limitation," respectively. Reference
to any person or entity includes such person's or entity's successors and
assigns to the extent such successors and assigns are permitted by the terms of
any applicable agreement, and reference to a person or entity in a particular
capacity excludes such person or entity in any other capacity or individually.
Reference to any agreement (including this Agreement), document or instrument
means such agreement, document or instrument as amended or modified and in
effect from time to time in accordance with the terms thereof and, if
applicable, the terms hereof. Reference to any law means such law as amended,
modified, codified, replaced or re-enacted, in whole or in part, and in effect
on the date hereof, including rules, regulations, enforcement procedures and any
interpretations promulgated thereunder. Underscored references to Articles,
Sections, clauses, Exhibits or Schedules shall refer to those portions of this
Agreement, and any underscored references to a clause shall, unless otherwise
identified, refer to the appropriate clause within the same Section in which
such reference occurs. The use of the terms "hereunder", "hereof", "hereto" and
words of similar import shall refer to this Agreement as a whole and not to any
particular Article, Section or clause of or Exhibit or Schedule to this
Agreement. All terms defined in this Agreement shall have the above-defined
meanings when used in any certificate, report or other document made or
delivered pursuant to this Agreement, unless the context therein shall clearly
otherwise require. In the computation of periods of time in this Agreement from
a specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding." This
Agreement and the other documents relating to this Agreement are the result of
negotiations among and have been reviewed by counsel to the Administrative
Agent, Guarantor and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Banks or the Administrative
Agent merely because of the Administrative Agent's or Banks' involvement in
their preparation.
13
SECTION 12.15 WAIVER OF JURY TRIAL. GUARANTOR, THE ADMINISTRATIVE
----------------------------------
AGENT AND EACH BANK HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING
ANY RIGHTS UNDER THIS AGREEMENT, ANY OTHER DOCUMENT CONTEMPLATED HEREBY OR ANY
OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY BANKING RELATIONSHIP
EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY SUCH ACTION,
PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY;
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS
AGREEMENT.
* * *
[Signature Pages Follow]
14
Executed as of the date and year first written above.
GUARANTOR:
CONSECO, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Acting Chief Financial
Officer
Notice Address:
00000 X. Xxxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000)000-0000
Facsimile: (000) 000-0000
ADMINISTRATIVE AGENT:
THE CHASE MANHATTAN BANK
By:_______________________
Name:
Title:
Lending Office
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notice Address
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANKS:
THE CHASE MANHATTAN BANK
By:_______________________
Name:
Title:
Lending Office
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notice Address
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA, N.A.
By:_______________________
Name:
Title:
Lending Office
Address: 000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notice Address:
Address: 000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
