AMENDED AND RESTATED GUARANTY
Dated as of August 26, 1997,
between
CONSECO, INC.,
as Guarantor,
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
EXHIBITS
EXHIBIT A-1 Form of Opinion of Xxxx X. Xxxxxx, counsel to
Guarantor
EXHIBIT A-2 Form of Opinion of Xxxxx & Xxxxxxx, outside
counsel to Guarantor
EXHIBIT B Form of Officer's Certificate
EXHIBIT C Form of Conseco Corporate Structure
AMENDED AND RESTATED GUARANTY
THIS AMENDED AND RESTATED GUARANTY (this "Restated Guaranty") is
entered into as of August 26, 1997 by CONSECO, INC., an Indiana corporation
("Guarantor"), in favor of BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as administrative agent (the "Administrative Agent") for the
financial institutions (the "Banks" and together with Administrative Agent, the
"Guarantied Parties") who are or from time to time may become party to the
Restated Credit Agreement (as hereinafter defined). Unless otherwise defined
herein, capitalized terms used herein shall have the meanings assigned to such
terms pursuant to Article I hereof.
W I T N E S S E T H:
WHEREAS, Guarantor has executed and delivered to the Administrative
Agent that certain Guaranty, dated as of May 13, 1996 (as amended or modified
through the date hereof, the "Existing Guaranty"), whereby Guarantor has
absolutely, unconditionally and irrevocably agreed to pay in full all
Obligations (as defined in the Existing Guaranty) of the borrowers party to that
certain Credit Agreement, dated as of May 13, 1996 (as amended or modified
through the date hereof, the "Existing Credit Agreement"), among such borrowers,
the banks party thereto and the Administrative Agent;
WHEREAS, Guarantor has established a stock purchase program for certain
of its officers and directors to increase Guarantor's ability to attract and
retain able executive and senior officers and directors and, accordingly,
promote the interest of Guarantor and its stockholders, while at the same time
providing these individuals with additional incentive to work toward Guarantor's
future success;
WHEREAS, Guarantor has determined it to be in the best interest of
Guarantor and its stockholders to expand the stock purchase program to permit
the purchase of additional common stock of Guarantor;
WHEREAS, concurrently with Guarantor's execution and delivery of this
Restated Guaranty, the borrowers party to the Existing Credit Agreement together
with certain other individuals (herein, collectively called, the "Borrowers" and
each individually, a "Borrower") will enter into that certain Amended and
Restated Credit Agreement, dated as of August 26, 1997 (as
from time to time, in whole or in part, the same may be amended, modified,
supplemented, restated, refinanced, refunded or renewed, the "Restated Credit
Agreement"), among the Borrowers, the Banks and the Administrative Agent,
whereby the Banks, among other things, will increase the aggregate Commitments
of the Banks to $250,000,000 on the terms and subject to the conditions
contained in the Restated Credit Agreement;
WHEREAS, as a condition precedent to the Banks executing and delivering
the Restated Credit Agreement and increasing the Banks' aggregate Commitments
and making the initial Loans thereunder, Guarantor is required to execute and
deliver this Restated Guaranty;
WHEREAS, Guarantor has been duly authorized to execute, deliver and
perform this Restated Guaranty; and
WHEREAS, it is in the best interest of Guarantor to execute this
Restated Guaranty inasmuch as Guarantor has and will derive substantial direct
and indirect benefits from the Loans made from time to time to the Borrowers by
the Banks pursuant to the Restated Credit Agreement;
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, and in order to induce the Banks to
make Loans (including the initial Loans) to the Borrowers pursuant to the
Restated Credit Agreement, Guarantor agrees, for the benefit of each Guarantied
Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. Capitalized terms used herein, unless
otherwise defined herein, shall have the respective meanings assigned thereto in
the Restated Credit Agreement; provided that such definitions shall survive any
termination of the Restated Credit Agreement. In addition, when used herein the
following terms shall have the following meanings (such definitions to be
equally applicable to the singular and plural forms thereof):
"Administrative Agent" - see Preamble.
"Banks" or "Bank" - see Preamble.
"Borrowers" or "Borrower" - see fourth recital.
"Borrower Default" - see Section 6.1.
"Cash Collateral Account" shall mean the custody account, account
number 72-80556, maintained in the name of, and subject to the sole dominion and
control of, the Administrative Agent for the sole benefit of the Banks, for the
purpose of holding prepayments of the Obligations of the Borrowers by Guarantor
pursuant to Section 6.1.
"Existing Credit Agreement" - see first recital.
"Existing Guaranty" - see first recital.
"Guarantied Party" - see Preamble.
"Indemnified Liabilities" - see Section 6.2.
"Indemnified Parties" - see Section 7.2.
"Obligations" - see Section 2.1.
"Permitted Liens" - see Section 4.4.
"PRIDES" shall mean the $267,116,250 stated value of Guarantor's
Preferred Redeemable Increased Dividend Equity Securities, 7% Convertible
Preferred Stock, no par value, issued pursuant to a registration statement filed
with the Securities and Exchange Commission (File No. 33-53095).
"Restated Credit Agreement" - see fourth recital.
"Restated Guaranty" - see Preamble.
"Subrogation Rights" - see Section 2.6.
"UCC" shall mean the Uniform Commercial Code or comparable statute or
any successor statutes thereto, as in effect from time to time in the relevant
jurisdiction.
ARTICLE II
RESTATED GUARANTY PROVISIONS
SECTION 2.1. Guaranty. Guarantor hereby absolutely,
unconditionally and irrevocably:
(a) guaranties to the Guarantied Parties the full and punctual
payment when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise, and at all times
thereafter, of all obligations of each Borrower to the Guarantied
Parties, howsoever created, arising or evidenced, whether direct or
indirect, absolute or contingent, or now or hereafter existing, or due
or to become due under the Restated Credit Agreement, whether for
principal, interest, fees, expenses or otherwise (including all such
amounts which would become due but for the operation of the automatic
stay provisions under Section 362(a) of the United States Bankruptcy
Code, 11 U.S.C. ss.362(a), and the operation of Sections 502(b) and
506(b) of the United States Bankruptcy Code, 11 U.S.C. ss.502(b) and
ss.506(b)) (all such obligations hereinafter collectively called the
"Obligations"); and
(b) indemnifies and holds harmless each Guarantied Party or
any holder of any Loan for any and all costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) incurred
by such Guarantied Party or such holder, as the case may be, in
enforcing any rights under this Restated Guaranty;
This Restated Guaranty constitutes a guaranty of payment when due and not of
collection, and Guarantor specifically agrees that it shall not be necessary or
required that any Guarantied Party or any holder of any Loan exercise any right,
assert any claim or demand or enforce any remedy whatsoever against any Borrower
or any other obligor (or any other Person) before the performance of, or as a
condition to, the obligations of Guarantor hereunder.
SECTION 2.2. Acceleration of Guaranty. Guarantor agrees that, in the
event of the insolvency of any Borrower, any other obligor with respect to the
Obligations of such Borrower, or Guarantor, as the case may be, or the inability
or failure of such Borrower, such other obligor or Guarantor to pay debts as
they become due, or an assignment by such Borrower, such other obligor or
Guarantor for the benefit of creditors, or the commencement of any case or
proceeding in respect of such
Borrower, such other obligor or Guarantor under any bankruptcy, insolvency or
similar federal or state laws, and if such event shall occur at a time when any
of the Obligations of such Borrower or such other obligor may not then be due
and payable, Guarantor will pay to the Banks forthwith (a) if such event relates
to such Borrower or any other obligor with respect to the Obligations of such
Borrower, the full amount which would be payable hereunder by Guarantor if all
Obligations of such Borrower were then due and payable and (b) if such event
relates to Guarantor or any other obligor with respect to the obligations of
Guarantor, the full amount which would be payable hereunder by Guarantor if all
the Obligations of all Borrowers were then due and payable.
SECTION 2.3. Guaranty Absolute, etc. This Restated Guaranty shall in
all respects be a continuing, absolute, unconditional and irrevocable guaranty
of payment, and shall remain in full force and effect until all Obligations of
the Borrowers and each other obligor have been paid in full, all obligations of
Guarantor hereunder shall have been paid in full and all Commitments shall have
terminated. Guarantor guarantees that the Obligations of the Borrowers and each
other obligor and their respective Subsidiaries, if any, will be paid strictly
in accordance with the terms of the Restated Credit Agreement and each other
Loan Document under which they arise, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of any Guarantied Party or any holder of the Note(s) of any Borrower
with respect thereto. The liability of Guarantor under this Restated Guaranty
shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the
Restated Credit Agreement, any Note or any other Loan Document;
(b) the failure of any Guarantied Party or any holder of any
Note:
(i) to assert any claim or demand or to enforce any
right or remedy against any Borrower, any other obligor or any
other Person under the provisions of the Restated Credit
Agreement, any Note, any other Loan Document or otherwise; or
(ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any Obligations of
any Borrower or any other obligor;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of any Borrower or
any other obligor, or any other extension, compromise or renewal of any
Obligations of any Borrower or any other obligor;
(d) any reduction, limitation, impairment or termination of
the Obligations of any Borrower or any other obligor for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and Guarantor hereby waives
any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, the Obligations of any
Borrower, any other obligor or otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to any departure from, any of the terms
of the Restated Credit Agreement, any Note or any other Loan Document;
(f) any addition, exchange, release, surrender or non-
perfection of any collateral, or any amendment to or waiver or release
or addition of, or consent to any departure from, any other guaranty,
held by any Guarantied Party or any holder of any Note securing any of
the Obligations of any Borrower or any other obligor; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any
Borrower, any other obligor, any surety or any guarantor.
SECTION 2.4. Reinstatement, etc. Guarantor agrees that this Restated
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by any Guarantied Party or any holder of
any Note, upon the insolvency, bankruptcy or reorganization of
any Borrower, any other obligor or otherwise, all as though such payment had not
been made.
SECTION 2.5. Waiver, etc. Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of the Borrower or any other obligor, and this Restated Guaranty and
any requirement that the Administrative Agent, any other Guarantied Party or any
holder of any Note protect, secure, perfect or insure any security interest or
Lien, or any property subject thereto, or exhaust any right or take any action
against any Borrower, any other obligor or any other Person (including any other
guarantor) or entity or any collateral securing the Obligations of any Borrower
or any other obligor, as the case may be.
SECTION 2.6. Waiver of Subrogation; Subordination. Guarantor hereby
irrevocably waives with respect to any Borrower, until termination of the
Commitments of the Banks with respect to such Borrower and thereafter until the
prior indefeasible payment in full in cash of all Obligations of such Borrower
under the Loan Documents, any claim or other rights which it may now or
hereafter acquire against such Borrower or any other obligor that arises from
the existence, payment, performance or enforcement of Guarantor's obligations
under this Restated Guaranty or any other Loan Document or otherwise, including
any right of subrogation, reimbursement, exoneration, or indemnification, any
right to participate in any claim or remedy of the Guarantied Parties against
such Borrower or any other obligor or any collateral which the Administrative
Agent now has or hereafter acquires, whether or not such claim, remedy or right
(all such claims, remedies and rights being collectively called "Subrogation
Rights") arises in equity, or under contract, statute or common law, including
the right to take or receive from such Borrower or any other obligor, directly
or indirectly, in cash or other property or by set-off or in any manner, payment
or security on account of such claim or other rights. If any amount shall be
paid to Guarantor in violation of the preceding sentence and the Obligations
shall not have been paid in cash, in full, and the Commitments of the Banks with
respect to such Borrower have not been terminated, such amount shall be deemed
to have been paid to Guarantor for the benefit of, and held in trust for, the
Guarantied Parties, and shall forthwith be paid to the Guarantied Parties to be
credited and applied upon the Obligations of such Borrower, whether matured or
unmatured. Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Restated Credit
Agreement and that the waiver set forth in this Section is
knowingly made in contemplation of such benefits. Notwithstanding the foregoing,
the Subrogation Rights of Guarantor shall not include (and Guarantor
acknowledges that it has no interest in) any of the collateral pledged by any of
the Borrowers under the Pledge Agreement.
SECTION 2.7. Successors, Transferees and Assigns; Transfers of Notes,
etc. This Restated Guaranty shall:
(a) be binding upon Guarantor, and its successors, Transferees
and assigns; and
(b) inure to the benefit of and be enforceable by the
Administrative Agent and each other Guarantied Party.
Without limiting the generality of clause (b), any Bank may assign or otherwise
transfer (in whole or in part) any Note or Loan held by it to any other Person,
and such other Person shall thereupon become vested with all rights and benefits
in respect thereof granted to such Bank under any Loan Document (including this
Restated Guaranty) or otherwise. Notwithstanding anything contained in this
Section 2.7 to the contrary, this Section 2.7 shall not be deemed to enlarge or
create additional rights with respect to any Bank's ability to assign any
portion of its Loans or rights under any Note or any other Loan Document
pursuant to Section 12 of the Restated Credit Agreement, and this Section 2.7 is
expressly made subject thereto.
SECTION 2.8. Payments Free and Clear of Taxes, etc. Guarantor hereby
agrees that:
(a) any and all payments made by Guarantor hereunder shall be
made in accordance with Section 4.7 of the Restated Credit Agreement
free and clear of, and without deduction for, any and all Charges, to
the same extent as if Guarantor were a Borrower.
(b) Guarantor hereby indemnifies and holds harmless each
Guarantied Party and each holder of a Loan for the full amount of any
Charges paid by such Guarantied Party or such holder, as the case may
be, and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such Charges
were correctly or legally asserted.
(c) Without prejudice to the survival of any other agreement
of Guarantor hereunder, the agreements and
obligations of Guarantor contained in this Section 2.8 shall survive
the payment in full of the principal of and interest on the Loans.
SECTION 2.9. Right of Offset. In addition to and not in limitation of
all rights of offset that any Guarantied Party or other holder of a Note may
have under applicable law or any other Loan Document, subject to the terms of
the Restated Credit Agreement, each Guarantied Party or other holder of a Note
shall upon the occurrence of any Event of Default and whether or not such
Guarantied Party or such holder has made any demand or Guarantor's obligations
are matured, have the right to appropriate and apply to the payment of
Guarantor's obligations hereunder all deposits (general or special, time or
demand, provisional or final) then or thereafter held by, and other indebtedness
or property then or thereafter owing to, such Guarantied Party or other holder,
whether or not related to this Restated Guaranty or any transaction hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; INCORPORATION BY REFERENCE
To induce the Guarantied Parties to enter into the Restated Credit
Agreement and to make the Loans thereunder, Guarantor represents and warrants to
each Guarantied Party that:
SECTION 3.1. Organization, etc. Guarantor and each of its Subsidiaries
is a corporation, partnership or limited liability company duly organized,
validly existing and in good standing under the laws of the state of its
incorporation or formation and each of Guarantor and its Subsidiaries is duly
qualified to transact business and in good standing as a foreign corporation,
partnership or limited liability company authorized to do business in each
jurisdiction where the nature of its business makes such qualification necessary
and failure to so qualify could reasonably be expected to have a Material
Adverse Effect.
SECTION 3.2. Authorization. Guarantor (a) has the power to execute,
deliver and perform this Restated Guaranty and the other Loan Documents to which
it is a party, and (b) has taken all necessary action to authorize the
execution, delivery and performance by it of this Restated Guaranty and the
other Loan Documents to which it is a party.
SECTION 3.3. No Conflict. The execution, delivery and performance by
Guarantor of this Restated Guaranty and the other Loan Documents to which it is
a party does not and will not (a) contravene or conflict with any provision of
any law, statute, rule or regulation, (b) contravene or conflict with, result in
any breach of, or constitute a default under, any material agreement or
instrument binding on Guarantor or any of its Subsidiaries (including, without
limitation, any writ, judgment, injunction or other similar court order), (c)
result in the creation or imposition of or the obligation to create or impose
any Lien (except for Permitted Liens) upon any of the property or assets of
Guarantor or any of its Subsidiaries or (d) contravene or conflict with any
provision of the articles of incorporation or by-laws of Guarantor.
SECTION 3.4. Margin Regulations.
(a) None of the transactions contemplated hereunder or in connection
herewith will in any way violate, contravene or conflict with any of the
provisions of Regulation G or Regulation U;
(b) None of the obligations of any Borrower to Guarantor is or will be
directly or indirectly secured by "margin stock" (as defined in Regulation G and
Regulation U);
(c) Neither Guarantor nor any third party acting on behalf of Guarantor
has taken or will take possession of any Borrower's "margin stock" (as defined
in Regulation G and Regulation U) to secure, directly or indirectly, any of the
Obligations of such Borrower or the obligations of Guarantor under this Restated
Guaranty or any of the Loan Documents;
(d) Guarantor does not and will not have any right to prohibit any
Borrower from selling, pledging, encumbering or otherwise disposing of any
margin stock owned by such Borrower so long as this Restated Guaranty is in
effect or any of the Obligations of such Borrower or the obligations of
Guarantor under this Restated Guaranty or any of the Loan Documents remain
outstanding;
(e) None of the Borrowers have granted or will grant Guarantor or any
third party acting on behalf of Guarantor the right to accelerate repayment of
any of the Obligations of such Borrower if any of the margin stock owned by such
Borrower is sold by such Borrower or otherwise; and
(f) There is no agreement or other arrangement between any Borrower and
Guarantor or any third party acting on behalf of Guarantor (and no such
agreement or arrangement shall be entered into so long as this Restated Guaranty
is in effect or any of the Obligations of such Borrower or the obligations of
Guarantor under this Guaranty or any of the Loan Documents remain outstanding)
under which the margin stock of such Borrower would be made more readily
available as security to Guarantor than to other creditors of such Borrower.
SECTION 3.5. Conseco Corporate Structure. The corporate structure of
Guarantor and its Subsidiaries as of the date hereof and on a pro forma basis
after consummation of all pending acquisitions for which definitive agreements
have been executed is as set forth on Exhibit C.
SECTION 3.6. No Default or Event of Default. No Default or Event of
Default has occurred and is continuing with respect to Guarantor and no default
or event of default has occurred and is continuing under the Revolving Credit
Agreement.
SECTION 3.7. Incorporation by Reference. Guarantor agrees that the
representations and warranties of Guarantor set forth in Section 7 of the
Revolving Credit Agreement (other than Sections 7.1, 7.2, 7.3, 7.16, 7.24 and
7.26) shall be incorporated by reference in this Restated Guaranty in their
entirety as if fully set forth herein with the same effect as if applied to this
Restated Guaranty. All capitalized terms set forth in such Sections shall have
the meanings provided in the Revolving Credit Agreement; provided that for
purposes of this Restated Guaranty, to the extent set forth in the Revolving
Credit Agreement (a) the term "Borrower" shall be deemed to refer to Guarantor
and (b) the terms "Administrative Agent", "Agreement", "Banks", "Liabilities",
"Required Banks", "Loan Documents", "Collateral", "Material Adverse Effect", and
"Material Adverse Change" shall have the respective meanings provided in the
Restated Credit Agreement. Such representations and warranties shall not be
affected in any manner by the termination of the Revolving Credit Agreement.
Notwithstanding the foregoing, if Section 7 (other than Sections 7.1,
7.2, 7.3, 7.16, 7.24 and 7.26) of the Revolving Credit Agreement (or any
successor section thereto) or any definitions set forth or used therein are
amended or modified in accordance with the terms of the Revolving Credit
Agreement either as the result of an amendment or modification to such section
in the Revolving Credit Agreement or Guarantor's
execution and delivery of a new credit facility in replacement, restatement or
substitution for the Revolving Credit Agreement, this Section 3.7 shall be
deemed to be amended and modified to the extent set forth in the Revolving
Credit Agreement (as amended or modified) or any new credit facility entered
into in replacement, restatement or substitution for the Revolving Credit
Agreement; provided that (i) no Default or Event of Default exists under the
Restated Credit Agreement, (ii) the Required Banks have determined, in their
sole and absolute discretion, that any proposed amendment or modification to
this Section 3.7 will not in any way violate, contravene or conflict with
Regulation U or Regulation G, (c) if requested by the Administrative Agent, the
Banks shall have received an opinion of counsel satisfactory to the
Administrative Agent and its counsel to the effect that any such proposed
amendment or modification to this Section 3.7 will not in way violate,
contravene or conflict with Regulation U or Regulation G and addressing such
other legal matters as reasonably requested by the Administrative Agent and (d)
upon the request of the Administrative Agent, the Banks shall have received a
certificate of the chief financial officer or a vice president with
responsibility for or knowledge of financial matters of the Guarantor setting
forth a calculation of the Collateral Ratio.
ARTICLE IV
COVENANTS
SECTION 4.1. Guarantor agrees that, on and after the date hereof until
the termination or expiration of the Commitments and for so long thereafter as
any of the Obligations or the obligations of Guarantor hereunder remain unpaid
or outstanding (except Obligations which by the terms hereof survive the payment
in full of the Loans and termination of this Restated Guaranty), Guarantor will
comply with the covenants set forth Sections 8, 9 (other than Section 9.2) and
10 of the Revolving Credit Agreement and the terms and provisions set forth
therein shall be incorporated by reference in this Restated Guaranty in their
entirety as if fully set forth herein with the same effect as if applied to this
Restated Guaranty. All capitalized terms set forth in Sections 8, 9 (other than
Section 9.2) and 10 of the Revolving Credit Agreement shall have the meanings
provided in the Revolving Credit Agreement; provided that for purposes of this
Restated Guaranty, to the extent set forth in the Revolving Credit Agreement (a)
the term "Borrower" shall be deemed to refer to Guarantor and (b) the terms
"Administrative Agent", "Agreement", "Banks", "Liabilities", "Required Banks",
"Loan
Documents", "Collateral", "Material Adverse Effect", and "Material Adverse
Change" shall have the respective meanings provided in the Restated Credit
Agreement. Such covenants shall not be affected in any manner by the termination
of the Revolving Credit Agreement.
Notwithstanding the foregoing, if Sections 8, 9 (other than Section
9.2), or 10 of the Revolving Credit Agreement (or any successor section thereto)
or any definitions set forth or used therein are amended or modified in
accordance with the terms of the Revolving Credit Agreement either as the result
of an amendment or modification to such section in the Revolving Credit
Agreement or Guarantor's execution and delivery of a new credit facility in
replacement, restatement or substitution for the Revolving Credit Agreement,
this Section 4.1 shall be deemed to be amended and modified to the extent set
forth in the Revolving Credit Agreement (as amended or modified) or any new
credit facility entered into in replacement, restatement or substitution for the
Revolving Credit Agreement; provided that (i) no Default or Event of Default
exists under the Restated Credit Agreement, (ii) the Required Banks have
determined, in their sole and absolute discretion, that any proposed amendment
or modification to this Section 4.1 will not in any way violate, contravene or
conflict with Regulation U or Regulation G, (c) if requested by the
Administrative Agent, the Banks shall have received an opinion of counsel
satisfactory to the Administrative Agent and its counsel to the effect that any
such proposed amendment or modification to this Section 4.1 will not in any way
violate, contravene or conflict with Regulation U or Regulation G and addressing
such other legal matters as reasonably requested by the Administrative Agent and
(d) upon the request of the Administrative Agent, the Banks shall have received
a certificate of the chief financial officer or a vice president with
responsibility for or knowledge of financial matters of the Guarantor setting
forth a calculation of the Collateral Ratio.
SECTION 4.2. Certain Indebtedness. Guarantor shall not, and shall not
permit any of its Subsidiaries to amend or modify any provision of the Revolving
Credit Agreement or the other Revolving Credit Loan Documents if such amendment
or modification could have an adverse effect on the Banks or any material
provision of the Loan Documents.
SECTION 4.3. Margin Regulations. Guarantor shall take such actions and
execute and deliver such instruments or documents from time to time as the
Administrative Agent shall reasonably
request to maintain continuous compliance with Regulation G and Regulation U.
SECTION 4.4. Negative Pledge. Guarantor shall not, and shall not permit
any of its Subsidiaries to, create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except for the following
(collectively called "Permitted Liens"):
(a) Liens in connection with Permitted Transactions (as
defined in the Revolving Credit Agreement);
(b) Liens for current Taxes (as defined in the Revolving
Credit Agreement) not delinquent or for Taxes being contested in good
faith and by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP;
(c) Liens shown on Schedule 9.2 of the Revolving Credit
Agreement on the Closing Date (as defined in the Revolving Credit
Agreement);
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other
forms of governmental insurance or benefits or to secure performance of
tenders, statutory obligations, leases and contracts (other than for
borrowed money) entered into in the ordinary course of business or to
secure obligations on surety or appeal bonds;
(e) Liens of mechanics, carriers, and materialmen and other
like Liens arising in the ordinary course of business in respect of
obligations which are not delinquent or which are being contested in
good faith and by appropriate proceedings and with respect to which
adequate reserves are being maintained in accordance with GAAP;
(f) Liens arising in the ordinary course of business for sums
being contested in good faith and by appropriate proceedings and with
respect to which adequate reserves are being maintained in accordance
with GAAP, or for sums not due, and in either case not involving any
deposits or advances for borrowed money or the deferred purchase price
of property or services;
(g) Liens on real estate to the extent real estate Investments
(as defined in the Revolving Credit Agreement) are permitted by Section
9.10(e)(iii) of the Revolving Credit Agreement;
(h) Liens in favor of the trustee on sums required to be
deposited with the trustee under the Indentures (as defined in the
Revolving Credit Agreement);
(i) If Section 9.1(II) of the Revolving Credit Agreement is
then in effect, Liens on indebtedness permitted by Section 9.1(II)(o)
of the Revolving Credit Agreement;
(j) If Section 9.1(II) of the Revolving Credit Agreement is
then in effect, Liens on assets of Guarantor or any of its Subsidiaries
and which are not otherwise permitted to be incurred pursuant to the
foregoing clauses (a) - (i) securing indebtedness permitted by Section
9.1(II)(p) of the Revolving Credit Agreement; provided, however, that
the aggregate fair market value of the property and other assets
subject to any such Liens, calculated at the time such Liens are
incurred, shall not exceed three and six- tenths percent (3.6%) of the
Total Shareholders' Equity of Guarantor; and
(k) If Section 9.1(I) of the Revolving Credit Agreement is
then in effect, Liens on assets of Guarantor or any of its Subsidiaries
and which are not otherwise permitted to be incurred pursuant to the
foregoing clauses (a) - (h) securing indebtedness not prohibited by
Section 9.1(I) of the Revolving Credit Agreement; provided, however,
that the aggregate fair market value of the property
and other assets subject to any such Liens, calculated at the time such
Liens are incurred, shall not exceed twelve percent (12%) of Total
Shareholders' Equity (as defined in the Revolving Credit Agreement) of
Guarantor.
Notwithstanding the foregoing, if Section 9.2 of the Revolving Credit
Agreement (or any successor section thereto) or any definitions set forth or
used therein are amended or modified in accordance with the terms of the
Revolving Credit Agreement either as the result of an amendment or modification
to such section in the Revolving Credit Agreement or Guarantor's execution and
delivery of a new credit facility in replacement, restatement or substitution
for the Revolving Credit Agreement, this Section 4.4 shall be deemed to be
amended and modified to the extent set forth in the Revolving Credit Agreement
(as amended or modified) or any new credit facility entered into in replacement,
restatement or substitution for the Revolving Credit Agreement; provided that
(i) no Default or Event of Default exists under the Restated Credit Agreement,
(ii) the Required Banks have determined, in their sole and absolute discretion,
that any proposed amendment or modification to this Section 4.4 will not in any
way violate, contravene or conflict with Regulation U or Regulation G, (c) if
requested by the Administrative Agent, the Banks shall have received an opinion
of counsel satisfactory to the Administrative Agent and its counsel to the
effect that any such proposed amendment or modification to this Section 4.4 will
not in any way violate, contravene or conflict with Regulation U or Regulation G
and addressing such other legal matters as reasonably requested by the
Administrative Agent, (d) upon the request of the Administrative Agent, the
Banks shall have received a certificate of the chief financial officer or a vice
president with responsibility for or knowledge of financial matters of the
Guarantor setting forth a calculation of the Collateral Ratio and (e) without
limiting anything contained in this Section 4.4, if Guarantor shall xxxxx x Xxxx
with respect to any of its assets to any third party not otherwise permitted by
clauses (a)-(l) above, the Banks shall be equally and ratably secured with
respect to such assets.
SECTION 4.5. Limitation on Additional Purpose Credit/Sale of Assets.
Notwithstanding any other provision of this Restated Guaranty, the Restated
Credit Agreement or the Revolving Credit Agreement to the contrary, Guarantor
will not, and will not permit any of its Wholly-Owned Subsidiaries and/or
Significant Subsidiaries to (a) incur or assume any Indebtedness which
constitutes "purpose credit" secured "directly or indirectly" as defined in
Regulation U by Margin Stock or (b) sell, transfer or otherwise dispose of any
of its assets (other than as permitted in clauses (a)-(d) of Section 9.4 of the
Revolving Credit Agreement), unless in the case of both clauses (a) and (b) the
Administrative Agent shall have been given at least 10 days' prior written
notice thereof and either:
(x) in the case of a disposition of assets, either (i) if
permitted by the Revolving Credit Agreement, an amount equal to the Net
Proceeds (as defined in the Revolving Credit Agreement) received by
Guarantor, such Wholly-Owned Subsidiary and/or such Significant
Subsidiary, as the case may be, in connection with any such disposition
of assets shall be promptly applied to repay, pro rata, the principal
amount of the Loans made to the Borrowers (together with any interest
accrued thereon). To the extent the Net Proceeds of any such
disposition exceed the amount of the Loans, or the Loans shall have
been paid in full, such Net Proceeds shall be applied to repay any
remaining Liabilities or (ii) the Borrowers shall prepay their
respective Liabilities hereunder in an amount equal to the product of
(A) the Net Proceeds received by Guarantor, such Wholly-Owned
Subsidiary and/or such Significant Subsidiary, as the case may be, in
connection with such disposition of assets, multiplied by a fraction,
the numerator of which is the Liabilities of such Borrower and the
denominator of which is the aggregate of all Liabilities of all the
Borrowers; or
(y) (i) no Default or Event of Default exists under the
Restated Credit Agreement or this Restated Guaranty or shall
result therefrom;
(ii) the Required Banks have determined, in their sole and
absolute discretion, that such proposed incurrence of
Indebtedness or proposed disposition of assets, as the case
may be, will not in any
way violate, contravene or conflict with Regulation U or
Regulation G (and the Administrative Agent shall have received
such information from the Guarantor as may be requested by the
Administrative Agent to make such determination, including a
calculation of the "good faith loan value" of the assets
comprising the Indirect Collateral remaining after giving
effect to such incurrence of Indebtedness and/or disposition
of assets);
(iii) if requested by the Administrative Agent, the
Banks shall have received (A) a certificate of the chief
financial officer or a vice president with responsibility for
or knowledge of financial matters of the Guarantor setting
forth a calculation of the Collateral Ratio (which calculation
shall reflect any adjustment in the "good faith loan value" of
the Indirect Collateral as determined by the Required Lenders
pursuant to clause (ii) above) and/or (B) an opinion of
counsel satisfactory to the Administrative Agent and its
counsel to the effect that such proposed incurrence of
Indebtedness or disposition of assets, as the case may be,
will not in way violate, contravene or conflict with
Regulation U or Regulation G and addressing such other legal
matters as reasonably requested by the Administrative Agent;
and
(iv) after giving effect to the incurrence of such
Indebtedness and/or the disposition of such assets, the
Collateral Ratio shall
be at least 2 to 1.
SECTION 4.6. Compliance with Restated Credit Agreement; Provision of
Collateral Ratio Information. Guarantor acknowledges that it is the
attorney-in-fact of each of the Borrowers and further acknowledges that it has
certain obligations and responsibilities to the Banks under the Restated Credit
Agreement (including, without limitation, under Section 8.1.4 of the Restated
Credit Agreement). Guarantor hereby agrees to comply with and satisfy such
obligations and responsibilities under the Restated Credit Agreement.
Furthermore, Guarantor shall provide to the Administrative Agent and the Banks
such information as may be reasonably requested from time to time by the
Administrative Agent or the Required Banks to permit the Administrative Agent or
the Required Banks, as the case may be, to determine the "maximum good faith
loan value" (as defined in Regulation U) of the Indirect Collateral and do such
other acts and execute such other documentation to continue to comply with
Regulation U and Regulation G.
ARTICLE V
CONDITIONS AND EFFECTIVENESS OF
THIS AGREEMENT
The obligation of the Banks to make the Loans is (in addition to the
conditions precedent set forth in Section 9 of the Restated Credit Agreement)
subject to the performance by Guarantor of all of the obligations under this
Restated Guaranty and to the satisfaction of the following conditions precedent:
SECTION 5.1. Initial Loans. Prior to or concurrent with the making of
the initial Loans under the Restated Credit Agreement, the Administrative Agent
shall have received all of the following, each, except to the extent otherwise
specified below, duly executed by a Responsible Officer of Guarantor, dated the
date of the initial Loans (or such earlier date as shall be satisfactory to the
Administrative Agent), in form and substance satisfactory to the Administrative
Agent, each in sufficient number of signed counterparts or copies to provide one
for each Bank and the Administrative Agent:
5.1.1. A favorable opinion of Xxxx X. Xxxxxx, counsel of
Guarantor and its Subsidiaries, substantially in the form of Exhibit
A-1, and addressing such other legal matters as the Administrative
Agent may require;
5.1.2. A favorable opinion of Xxxxx & Xxxxxxx, outside counsel
to Guarantor and its Subsidiaries, substantially in the form of Exhibit
A-2, and addressing such other legal matters as the Administrative
Agent may require;
5.1.3. An officer's certificate of Guarantor, substantially in
the form of Exhibits C, and dated as of the Closing Date, signed by a
Responsible Officer of Guarantor, and attested to by the secretary
thereof, together with certified copies of Guarantor's articles of
incorporation, by-laws and directors resolutions;
5.1.4. Evidence of the good standing or certificates of
compliance of Guarantor the jurisdiction in which Guarantor was
incorporated as of the Closing Date;
5.1.5. Evidence that Guarantor paid to the Administrative
Agent the fees and expenses provided for herein;
5.1.6. Evidence satisfactory to the Administrative Agent of
compliance by Guarantor with Regulation G; and
5.1.7. Such other information and documents as may reasonably
be required by the Administrative Agent and the Administrative Agent's
counsel.
ARTICLE VI
SALE AND RELEASE OF PLEDGED SHARES; CASH COLLATERAL
SECTION 6.1. Sale of Pledged Shares. Notwithstanding any provision set
forth in any of the Loan Documents to the contrary, the Administrative Agent
agrees that after the occurrence and during the continuance of a Default under
Section 10.1.2 of the Restated Credit Agreement or any Event of Default with
respect to any Borrower, the effect of which is to cause the Obligations of such
Borrower to be due and payable under the Restated Credit Agreement (a "Borrower
Default"), subject to the provisions of Section 6.2 and 6.4 below, it will not
demand that
Guarantor pay the Obligations of such Borrower (constituting outstanding
principal and interest of such Borrower), until after the Administrative Agent
has used its reasonable best efforts, in good faith, to sell the Pledged Shares
of such Borrower, such sale to be consummated in one or a series of open market
transactions through one or more reputable broker-dealers at the then fair
market value of such Pledged Shares.
SECTION 6.2. Conditions to Sale of Pledged Shares. The obligation of
the Administrative Agent not to demand payment hereunder pursuant to Section 6.1
is subject to the following conditions:
(a) Guarantor, within three (3) Business Days after receipt of
written notice of a Borrower Default from the Administrative Agent, shall
deposit with the Administrative Agent in the Cash Collateral Account an amount
equal to the then outstanding Obligations of the Borrower related to such
Borrower Default and, thereafter, upon written notice from the Administrative
Agent, Guarantor shall continue to deposit funds in the Cash Collateral Account
in sufficient amounts to pay in full any additional interest accrued on the
Loans of such Borrower after the date of the initial deposit to the Cash
Collateral Account; and
(b) None of the following has occurred at the time of such
Borrower Default or shall occur thereafter:
(i) a suspension or material limitation in trading in
securities generally or trading in the common stock of
Guarantor and/or PRIDES on the New York Stock Exchange or any
other exchange upon which the common stock of Guarantor and/or
PRIDES may then be traded;
(ii) a general moratorium on commercial banking
activities in New York is declared by any Federal or New York
State authorities;
(iii) the Administrative Agent is prohibited or
materially limited from selling the Pledged Shares as a result
of any federal or state securities laws (including, without
limitation, the rules promulgated thereunder relating to the
disclosure of material information); or
(iv) any other event (including, without limitation,
commencement of any suit, action or litigation, filing of any
claim or any other similar proceeding or any change in any
applicable law) has occurred which, in the reasonable opinion
of the Administrative Agent, would prohibit, have a material
adverse effect on, or materially limit the Administrative
Agent's ability to sell the Pledged Shares as contemplated by
the terms of Section 6.1.
Guarantor agrees that in any sale of any of the Pledged Shares, the
Administrative Agent is authorized to comply with any limitation or restriction
in connection with such sale as counsel may advise the Administrative Agent is
necessary, in the reasonable opinion of such counsel, in order to avoid any
violation of applicable law (including, without limitation, compliance with such
procedures as may restrict the number of prospective bidders and purchasers,
require that such prospective bidders and purchasers have certain
qualifications, and restrict such prospective bidders and purchasers to persons
who will represent and agree that they are purchasing for their own account for
investment and not with a view to the distribution or resale of such
Collateral), or in order to obtain any required approval of the sale or of the
purchaser by any governmental regulatory authority or official, and Guarantor
further agrees that such compliance shall not result in such sale being
considered or deemed not to have been made in a commercially reasonable manner,
nor shall the Administrative Agent be liable or accountable to Guarantor for any
discount allowed by reason of the fact that such Pledged Shares are sold in
compliance with any such limitation or restriction.
Guarantor further agrees to indemnify and hold harmless the
Administrative Agent and the Banks and each of their respective officers,
directors, employees, agents, successors and assigns, and any Person in control
of any thereof, from and against any loss, liability, claim, damage and expense,
including, without limitation, reasonable attorneys' fees actually incurred (in
this paragraph collectively called the "Indemnified Liabilities"), under federal
and state securities laws or otherwise resulting from the action or failure to
act by Guarantor or any Borrower; provided, that no such Person shall have the
right to be indemnified hereunder for its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
Section 6.3. Release of Pledged Shares. The Administrative Agent agrees
that, so long as Guarantor is in compliance with Section 6.2(a) and none of the
events set forth in Section 6.2(b) has occurred, it shall not release any of the
Pledged Shares of any Borrower from the Lien granted under the Pledge Agreement
until after the termination of this Restated Guaranty and the obligations of
Guarantor hereunder with respect to such Borrower. Notwithstanding the
foregoing, the Administrative Agent shall be entitled to (i) release the Pledged
Shares of such Borrower if such Pledged Shares are replaced by additional common
stock of Guarantor and/or PRIDES and (ii) sell the Pledged Shares pursuant to
Section 6.1.
SECTION 6.4. Borrower Event of Default. Guarantor hereby acknowledges
and agrees that Sections 6.1 and 6.3 shall not apply to any Default or Event of
Default relating to Guarantor or any of its Subsidiaries and, upon the
occurrence of an Event of Default relating to Guarantor or any of its
Subsidiaries, the Administrative Agent expressly reserves its rights and
remedies under this Restated Guaranty to demand payment hereunder to satisfy the
Obligations of all Borrowers and the obligations of Guarantor hereunder whether
or not the Administrative Agent has sold or attempted to sell the Pledged Shares
of any Borrower or otherwise exercised its rights and remedies under the Pledge
Agreement or any other Loan Document. Furthermore nothing contained herein shall
be deemed to prohibit or limit in any way whatsoever the Administrative Agent's
or any Bank's right or ability to receive its portion of the assets of Guarantor
upon the exercise by the Revolving Credit Agent or the Revolving Credit Banks of
their rights and remedies under the Revolving Credit Loan Documents or any other
creditor of Guarantor.
SECTION 6.5. Application of Cash Collateral. If after compliance by the
Administrative Agent with the provisions set forth in Section 6.1 any
Obligations remain unpaid with respect to any applicable Borrower, any funds
held in the Cash Collateral Account may be applied by the Administrative Agent
against the payment of the Obligations of such Borrower. The Administrative
Agent, prior to applying such funds against the Obligations of such Borrower,
will certify to Guarantor (a) if the Pledged Shares of such Borrower are sold
pursuant to Section 6.1, the net proceeds (including a calculation thereof in
reasonable detail) received by the Administrative Agent from the sale of such
Pledged Shares and (b) if the Pledged Shares of such Borrower are not sold
pursuant to Section 6.1, the reason or reasons why such sale could not be
accomplished. Any funds remaining in the Cash
Collateral Account after application thereof to the Obligations as set forth
above shall be returned to Guarantor. The Administrative Agent agrees that it
shall deliver to Guarantor, after the application of such funds to the
Obligations of such Borrower, a calculation in reasonable detail of the
Obligations of such Borrower (including principal and interest of the Loans of
such Borrower) and the application of such funds thereto.
ARTICLE VII
MISCELLANEOUS
7.1. Guarantor agrees to pay on demand all reasonable expenses
of the Administrative Agent (including the non- duplicative fees and reasonable
expenses of counsel (including expenses of in-house counsel) and of local
counsel, if any, who may be retained by such counsel) in connection with:
(a) the negotiation, preparation, execution, syndication and
delivery of the Restated Credit Agreement, this Restated Guaranty and
the other Loan Documents, including schedules and exhibits, and any
amendments, waivers, consents, supplements or other modifications to
the Restated Credit Agreement, this Restated Guaranty or the other Loan
Documents as may from time to time hereafter be required, whether or
not the transactions contemplated hereby or thereby are consummated;
and
(b) the preparation and/or review of the form of any document
or instrument relevant to the Restated Credit Agreement, this Restated
Guaranty or any other Loan Document.
Guarantor further agrees to pay, and to save the Administrative Agent and the
Banks, and their respective Affiliates, harmless from all liability for, any
stamp or other Taxes (other than income taxes of the Administrative Agent or the
Banks) which may be payable in connection with the execution or delivery of the
Restated Credit Agreement, any Borrowing thereunder, the issuance of the Notes,
this Restated Guaranty or any other Loan Document. Guarantor also agrees to
reimburse the Administrative Agent and each Bank upon demand for all reasonable
expenses (including attorneys' fees and legal expenses) incurred by the
Administrative Agent or such Bank in connection with the enforcement of any
Obligations or obligations hereunder and the consideration of legal issues
relevant hereto and thereto whether or not such expenses are incurred by the
Administrative Agent on its own behalf or on behalf of the Banks. All
obligations of Guarantor provided for in this Section 7.1 shall survive
termination of this Agreement. Notwithstanding the foregoing, the Administrative
Agent or a Bank shall not have the right to reimbursement under this Section 7.1
for amounts determined by a court of competent jurisdiction to have arisen from
the gross negligence or willful misconduct of the Administrative Agent or a
Bank.
7.2. 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
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 Restated Credit Agreement, this
Restated Guaranty, the other Loan Documents, or any actual or proposed use of
the proceeds of the Loans hereunder; 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 7.2
shall survive termination of the Restated Credit Agreement and this Restated
Guaranty.
7.3. All notices, requests and other communications 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 acknowledgement 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, in the case of telex, the
appropriate answerback is received, (b) if given by mail, seventy-two (72) hours
after such communication is deposited in
the mails 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.
7.4. This Restated Guaranty, and the terms, covenants and conditions
hereof, shall be binding upon and inure to the benefit of the parties hereto,
and their respective successors and assigns, except Guarantor shall not be
permitted to assign this Restated Guaranty nor any interest herein nor in the
Collateral, nor any part thereof, except in accordance with the terms of the
Restated Credit Agreement.
7.5. EACH OF GUARANTOR AND THE ADMINISTRATIVE AGENT (I) HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY ILLINOIS STATE OR FEDERAL COURT
SITTING IN THE NORTHERN DISTRICT OF ILLINOIS OVER ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS RESTATED GUARANTY OR THE OTHER LOAN
DOCUMENTS, AND EACH OF GUARANTOR AND THE ADMINISTRATIVE AGENT HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH ILLINOIS STATE OR FEDERAL COURT, AND (II) AGREES NOT TO
INSTITUTE ANY LEGAL ACTION OR PROCEEDING AGAINST THE OTHER PARTY HERETO OR THE
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR PROPERTY OF ANY THEREOF, ARISING OUT
OF OR RELATING TO THIS RESTATED GUARANTY, IN ANY COURT OTHER THAN AS HEREINABOVE
SPECIFIED IN THIS SECTION 7.5. EACH OF GUARANTOR AND THE ADMINISTRATIVE AGENT
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY ACTION OR PROCEEDING
(WHETHER BROUGHT BY GUARANTOR, ANY OF ITS SUBSIDIARIES, THE ADMINISTRATIVE
AGENT, ANY BANK OR OTHERWISE) IN ANY COURT HEREINABOVE SPECIFIED IN THIS SECTION
7.5 AS WELL AS ANY RIGHT IT 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. EACH OF GUARANTOR AND THE ADMINISTRATIVE AGENT AGREES
THAT A FINAL 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.
7.6. Subject to Section 13.1 of the Restated Credit Agreement, the
provisions of this Restated Guaranty may from time to time be amended, modified
or waived, if such amendment, modification or waiver is in writing and consented
to by Guarantor and by the Administrative Agent (at the request of the Required
Banks), and then any such amendment, modification, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
7.7. The section headings in this Restated Guaranty are inserted for
convenience of reference and shall not be considered a part of this Restated
Guaranty or used in its interpretation.
7.8. No action of the Administrative Agent permitted hereunder shall in
any way affect or impair the rights of the Administrative Agent and the
obligations of Guarantor under this Restated Guaranty. Guarantor hereby
acknowledges that there are no conditions to the effectiveness of this Restated
Guaranty.
7.9. All obligations of Guarantor and rights of the Administrative
Agent or obligation expressed in this Restated Guaranty shall be in addition to
and not in limitation of those provided in applicable law or in any other
written instrument or agreement relating to any of the Obligations.
7.10. THIS RESTATED GUARANTY SHALL BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES. ALL OBLIGATIONS OF THE BORROWERS AND GUARANTOR AND RIGHTS OF
THE ADMINISTRATIVE AGENT AND THE BANKS IN RESPECT OF THE OBLIGATIONS AND THE
OBLIGATIONS OF GUARANTOR EXPRESSED HEREIN OR IN THE OTHER LOAN DOCUMENTS SHALL
BE IN ADDITION TO AND NOT IN LIMITATION OF THOSE PROVIDED BY APPLICABLE LAW.
7.11. This Restated Guaranty may be executed in any number of
counterparts, each of which shall for all purposes be deemed an original, but
all such counterparts shall constitute but one and the same agreement. Guarantor
hereby acknowledges receipt of a true, correct and complete counterpart of this
Restated Guaranty.
7.12. The Administrative Agent acts herein as agent for itself, the
Banks and any and all future holders of the Obligations.
7.13. EACH OF GUARANTOR AND THE ADMINISTRATIVE AGENT HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS RESTATED GUARANTY,
ANY OTHER LOAN DOCUMENT 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 RESTATED GUARANTY
AND AGREES 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 RESTATED GUARANTY.
7.14. THIS RESTATED GUARANTY AMENDS AND RESTATES THE EXISTING GUARANTY
AND IS NOT INTENDED TO EFFECTUATE A NOVATION OF THE OBLIGATIONS OF GUARANTOR
WHICH WERE EVIDENCED BY THE EXISTING GUARANTY BUT RATHER A SUBSTITUTION OF THE
TERMS GOVERNING SUCH OBLIGATIONS.
* * *
IN WITNESS WHEREOF, Guarantor has caused this Amended and Restated
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
CONSECO, INC.
By:/s/Xxxxxx X. Xxxx
---------------------------
Name:Xxxxxx X. Xxxx
Title:Executive Vice President
