{"id":41051,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/guaranty-and-subordination-agreement-cihc-inc-conseco-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"guaranty-and-subordination-agreement-cihc-inc-conseco-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/guaranty-and-subordination-agreement-cihc-inc-conseco-inc.html","title":{"rendered":"Guaranty and Subordination Agreement &#8211; CIHC Inc., Conseco Inc. and The Chase Manhattan Bank"},"content":{"rendered":"<pre>                      GUARANTY AND SUBORDINATION AGREEMENT\n\n                         Dated as of September 22, 2000\n\n                                     made by\n\n                               CIHC, INCORPORATED,\n                     as Guarantor and Subordinated Borrower,\n\n                                       and\n\n                                 CONSECO, INC.,\n                       as Obligor and Subordinated Lender,\n\n                                   in favor of\n\n                            THE CHASE MANHATTAN BANK,\n                             as Administrative Agent\n              under the Credit Agreement, dated as of May 30, 2000\n\n\n\n================================================================================\n\n\n\n                      GUARANTY AND SUBORDINATION AGREEMENT\n\n                  This Guaranty and Subordination Agreement (this \"Agreement\")\nis entered into as of September 22, 2000 by CIHC, INCORPORATED and CONSECO, INC.\nin favor of THE CHASE MANHATTAN BANK, as administrative agent (in such capacity,\nthe \"Agent\") for the financial institutions (the \"Banks\" and together with the\nAgent, collectively, the \"Guarantied Parties\") who are or from time to time may\nbecome party to the Credit Agreement, dated as of May 30, 2000 (as the same may\nbe amended, supplemented, restated or otherwise modified from time to time, the\n\"Credit Agreement\"), among the individual borrowers party thereto, the Banks and\nthe Agent. Unless otherwise defined herein, capitalized terms used herein shall\nhave the meanings assigned to such terms pursuant to Article I hereof.\n\n                              W I T N E S S E T H:\n                               -------------------\n\n                  WHEREAS, pursuant to an Agreement of even date herewith (the\n\"Restructuring Document\") with respect to the Credit Agreement and the Guaranty\nreferred to in the Credit Agreement (as the same may be amended, supplemented,\nrestated or otherwise modified from time to time, the \"Conseco Guaranty\"), the\nBanks have agreed, among other things, to refrain from exercising certain\nremedies in respect of the Credit Agreement and\/or the Conseco Guaranty;\n\n                  WHEREAS, the Agreement Parties will derive substantial direct\nand indirect benefit from the Restructuring Document; and\n\n                  WHEREAS, it is a condition precedent to the obligation of the\nBanks to enter into the Restructuring Document that the Agreement Parties shall\nhave executed and delivered this Agreement;\n\n                  NOW THEREFORE, for good and valuable consideration the receipt\nand sufficiency of which is hereby acknowledged and to induce the Banks to enter\ninto the Restructuring Document, each Agreement Party agrees, for the benefit of\neach Guarantied Party, as follows:\n\n\n                                   ARTICLE I.\n\n                                   DEFINITIONS\n\n                  SECTION I.1. Certain Terms. Capitalized terms used herein,\nunless otherwise defined herein, shall have the respective meanings assigned\nthereto in the Credit Agreement, the Appendix or the Conseco Guaranty Documents;\nprovided that such definitions shall survive any termination of the Credit\nAgreement or any Conseco Guaranty Document. In the event that any such\ncapitalized term is defined both in the Appendix and any other document referred\nto above, the definition contained in the Appendix shall govern. In addition,\nwhen used herein the following terms shall have the following meanings (such\ndefinitions to be equally applicable to the singular and plural forms thereof):\n\n                  \"Agreement Party\" means each of Obligor, Guarantor,\n         Subordinated Lender and Subordinated Borrower.\n\n                  \"Appendix\" has the meaning set forth in the Restructuring\n         Document.\n\n                  \"Charges\" has the meaning assigned to such term in the Credit\n         Agreement.\n\n                  \"Conseco Guaranty\" has the meaning set forth in the Preamble.\n\n\n\n\n\n                  \"Conseco Guaranty Documents\" means the collective reference to\n         the Conseco Guaranty, the Restructuring Document and any other\n         agreement entered into by Obligor in connection therewith.\n\n                  \"Credit Agreement\" has the meaning set forth in the Preamble.\n\n                  \"Guarantied Obligations\" has the meaning set forth in Section\n         2.1.\n\n                  \"Guarantied Parties\" has the meaning set forth in the\n         Preamble.\n\n                  \"Guarantor\" means CIHC, Incorporated, in its capacity as\n         guarantor of the Guarantied Obligations.\n\n                  \"Indemnified Parties\" has the meaning set forth in Section\n         5.1.\n\n                  \"Obligations\" means all debts, liabilities, obligations,\n         covenants and duties for the payment of money owing by Obligor pursuant\n         to any Conseco Guaranty Document, whether direct or indirect, absolute\n         or contingent, due or to become due, now existing or hereafter arising.\n\n                  \"Obligor\" means Conseco, Inc., in its capacity as obligor in\n         respect of the Obligations.\n\n                  \"Reorganization\" has the meaning set forth in Section 3.2(a).\n\n                  \"Restructuring Document\" has the meaning set forth in the\n         Preamble.\n\n                  \"Senior Creditors\" means any holder or beneficiary of any\n         Senior Debt, or any authorized representative thereof.\n\n                  \"Senior Debt\" means (a) all obligations of Guarantor under\n         Article II, (b) all \"Senior Debt\" under and as defined in any other\n         CIHC Guaranty, (c) all \"Senior Debt\" under and as defined in the\n         Guaranty and Subordination Agreement entered into in connection with\n         the Lehman Agreement and (d) all other \"Senior Debt\" (or comparable\n         concept) under and as defined in any subordination provision or\n         agreement relating to or entered into in connection with any Contingent\n         Obligation of CIHC pursuant to Section 4.01(d)(i) or (d)(iv) of the\n         Appendix.\n\n                  \"Subordinated Borrower\" means CIHC, Incorporated, in its\n         capacity as obligor in respect of the Subordinated Debt.\n\n                  \"Subordinated Debt\" means the principal amount of any\n         Indebtedness owing by Subordinated Borrower to Subordinated Lender from\n         time to time outstanding and unpaid, together with accrued and unpaid\n         interest thereon.\n\n                  \"Subordinated Lender\" means Conseco, Inc., in its capacity as\n         holder of the Subordinated Debt.\n\n                  \"Subrogation Rights\" has the meaning set forth in Section 2.6.\n\n\n                                       2\n\n\n                                   ARTICLE II.\n\n                               GUARANTY PROVISIONS\n\n                  SECTION II.1. Guaranty. Guarantor hereby absolutely,\nunconditionally and irrevocably:\n\n                  (a) guaranties to the Guarantied Parties the full and punctual\n         payment when due, whether at stated maturity, by required prepayment,\n         declaration, acceleration, demand or otherwise, and at all times\n         thereafter, of all Obligations (including all such amounts which would\n         become due but for the operation of the automatic stay provisions under\n         Section 362(a) of the United States Bankruptcy Code, 11 U.S.C.\n         ss.362(a), and the operation of Sections 502(b) and 506(b) of the\n         United States Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)) (all\n         such Obligations collectively called the \"Guarantied Obligations\"); and\n\n                  (b) indemnifies and holds harmless each Guarantied Party or\n         any other holder of any Guarantied Obligations for any and all costs\n         and expenses (including, without limitation, reasonable attorneys' fees\n         and expenses) incurred by such Guarantied Party or such holder, as the\n         case may be, in enforcing any rights under this Agreement;\n\nThe guaranty set forth in this Article II constitutes a guaranty of payment when\ndue and not of collection, and Guarantor specifically agrees that it shall not\nbe necessary or required that any Guarantied Party or any other holder of any\nGuarantied Obligations exercise any right, assert any claim or demand or enforce\nany remedy whatsoever against Obligor or any other Person before the performance\nof, or as a condition to, the obligations of Guarantor hereunder. Anything\nherein or in any other Loan Document to the contrary notwithstanding, the\nmaximum liability of Guarantor hereunder shall in no event exceed the amount\nwhich can be guaranteed by Guarantor under applicable federal and state laws\nrelating to the insolvency of debtors.\n\n                  SECTION II.2. Acceleration of Guaranty. Guarantor agrees that,\nin the event of the insolvency of Guarantor, or the inability or failure of\nGuarantor to pay debts as they become due, or an assignment by Guarantor for the\nbenefit of creditors, or the commencement of any case or proceeding in respect\nof Obligor or Guarantor under any bankruptcy, insolvency or similar federal or\nstate laws, and if such event shall occur at a time when any of the Guarantied\nObligations may not then be due and payable, Guarantor will pay to the Banks\nforthwith the full amount which would be payable hereunder by Guarantor if all\nthe Guarantied Obligations were then due and payable.\n\n                  SECTION II.3. Guaranty Absolute, etc. This Agreement shall in\nall respects be a continuing, absolute, unconditional and irrevocable guaranty\nof payment, and shall remain in full force and effect until all Guarantied\nObligations have been paid in full and all obligations of Guarantor hereunder\nshall have been paid in full. Guarantor guarantees that the Guarantied\nObligations will be paid strictly in accordance with the terms of the Conseco\nGuaranty Documents and each other Loan Document under which they arise,\nregardless of any law, regulation or order now or hereafter in effect in any\njurisdiction affecting any of such terms or the rights of any Guarantied Party\nor any holder of any Guarantied Obligations. The liability of Guarantor under\nthis Agreement shall be absolute, unconditional and irrevocable irrespective of:\n\n                  (a) any lack of validity, legality or enforceability of the\n         Credit Agreement, any Conseco Guaranty Document or any other Loan\n         Document;\n\n                  (b)  the failure of any Guarantied Party:\n\n                                       3\n\n\n                           (i) to assert any claim or demand or to enforce any\n         right or remedy against Obligor or any other Person under the\n         provisions of the Credit Agreement, any Conseco Guaranty Document, any\n         other Loan Document or otherwise; or\n\n                           (ii) to exercise any right or remedy against any\n         other guarantor of, or collateral securing, any Guarantied Obligations;\n\n                  (c) any change in the time, manner or place of payment of, or\n         in any other term of, all or any of the Guarantied Obligations, or any\n         other extension, compromise or renewal of any Guarantied Obligations;\n\n                  (d) any reduction, limitation, impairment or termination of\n         the Guarantied Obligations for any reason, including any claim of\n         waiver, release, surrender, alteration or compromise, and shall not be\n         subject to (and Guarantor hereby waives any right to or claim of) any\n         defense or setoff, counterclaim, recoupment or termination whatsoever\n         by reason of the invalidity, illegality, nongenuineness, irregularity,\n         compromise, unenforceability of, or any other event or occurrence\n         affecting, the Guarantied Obligations;\n\n                  (e) any amendment to, rescission, waiver, or other\n         modification of, or any consent to any departure from, any of the terms\n         of the Credit Agreement, any Conseco Guaranty Document or any other\n         Loan Document;\n\n                  (f) any addition, exchange, release, surrender or\n         non-perfection of any collateral, or any amendment to or waiver or\n         release or addition of, or consent to any departure from, any other\n         guaranty held by any Guarantied Party or any other holder of the\n         Guarantied Obligations; or\n\n                  (g) any other circumstance which might otherwise constitute a\n         defense available to, or a legal or equitable discharge of, Obligor,\n         any surety or any guarantor.\n\n                  SECTION II.4. Reinstatement, etc. Guarantor agrees that this\nAgreement shall continue to be effective or be reinstated, as the case may be,\nif at any time any payment (in whole or in part) of any of the Guarantied\nObligations is rescinded or must otherwise be restored by any Guarantied Party\nor any other holder of any Guarantied Obligations, upon the insolvency,\nbankruptcy or reorganization of Obligor, all as though such payment had not been\nmade.\n\n                  SECTION II.5. Waiver, etc. Guarantor hereby waives promptness,\ndiligence, notice of acceptance and any other notice with respect to any of the\nGuarantied Obligations, and this Agreement and any requirement that the Agent,\nany other Guarantied Party or any other holder of Guarantied Obligations\nprotect, secure, perfect or insure any security interest or Lien, or any\nproperty subject thereto, or exhaust any right or take any action against\nObligor or any other Person (including any other guarantor) or entity or any\ncollateral securing the Guarantied Obligations.\n\n                  SECTION II.6. Waiver of Subrogation; Subordination. Guarantor\nhereby irrevocably waives with respect to Obligor, until the prior indefeasible\npayment in full in cash of all Guarantied Obligations, any claim or other rights\nwhich it may now or hereafter acquire against Obligor that arises from the\nexistence, payment, performance or enforcement of Guarantor's obligations under\nthis Article II, including any right of subrogation, reimbursement, exoneration,\nor indemnification, any right to participate in any claim or remedy of the\nGuarantied Parties against Obligor or any collateral which the Agent now has or\nhereafter acquires, whether or not such claim, remedy or right (all such claims,\n\n                                       4\n\n\nremedies and rights being collectively called \"Subrogation Rights\") arises in\nequity, or under contract, statute or common law, including the right to take or\nreceive from Obligor, directly or indirectly, in cash or other property or by\nset-off or in any manner, payment or security on account of such claim or other\nrights. If any amount shall be paid to Guarantor in violation of the preceding\nsentence and the Guarantied Obligations shall not have been paid in cash, in\nfull, such amount shall be deemed to have been paid to Guarantor for the benefit\nof, and held in trust for, the Guarantied Parties, and shall forthwith be paid\nto the Guarantied Parties to be credited and applied upon the Guarantied\nObligations, whether matured or unmatured. Guarantor acknowledges that it will\nreceive direct and indirect benefits from the Restructuring Document and that\nthe waiver set forth in this Section 2.6 is knowingly made in contemplation of\nsuch benefits.\n\n                  SECTION II.7. Successors, Transferees and Assigns; Transfers\nof Guarantied Obligations, etc. This Agreement shall:\n\n                  (a) be binding upon Guarantor, and its successors, transferees\n         and assigns; and\n\n                  (b) inure to the benefit of and be enforceable by the Agent\n         and each other Guarantied Party.\n\nWithout limiting the generality of clause (b), any Bank may assign or otherwise\ntransfer (in whole or in part) any Guarantied Obligation held by it to any other\nPerson upon the terms and conditions set forth in the Credit Agreement, and such\nother Person shall thereupon become vested with all rights and benefits in\nrespect thereof granted to such Bank under any Loan Document (including this\nAgreement) or otherwise.\n\n                  SECTION II.8. Payments Free and Clear of Taxes, etc. Guarantor\nhereby agrees that:\n\n                  (a) any and all payments made by Guarantor hereunder shall be\n         made in accordance with Section 4.7 of the Credit Agreement free and\n         clear of, and without deduction for, any and all Charges, to the same\n         extent as if Guarantor were a \"Borrower\" thereunder;\n\n                  (b) Guarantor hereby indemnifies and holds harmless each\n         Guarantied Party and each other holder of any Guarantied Obligation for\n         the full amount of any Charges paid by such Guarantied Party or such\n         holder, as the case may be, and any liability (including penalties,\n         interest and expenses) arising therefrom or with respect thereto; and\n\n                  (c) without prejudice to the survival of any other agreement\n         of Guarantor hereunder, the agreements and obligations of Guarantor\n         contained in this Section 2.8 shall survive the payment in full of the\n         Guarantied Obligations.\n\n                  SECTION II.9. Right of Offset. In addition to and not in\nlimitation of all rights of offset that any Guarantied Party or any other holder\nof any Guarantied Obligation may have under applicable law or any other Loan\nDocument, subject to the terms of the Credit Agreement, each Guarantied Party or\nother holder of any Guarantied Obligation shall, during the continuance of any\nEvent of Default and whether or not such Guarantied Party or such holder has\nmade any demand or whether or not Guarantor's obligations are matured, have the\nright to appropriate and apply to the payment of Guarantor's obligations\nhereunder all deposits (general or special, time or demand, provisional or\nfinal) then or thereafter held by, and other indebtedness or property then or\nthereafter owing to, such Guarantied Party or other holder, whether or not\nrelated to this Agreement or any transaction hereunder.\n\n\n                                       5\n\n\n                                  ARTICLE III.\n\n                                  SUBORDINATION\n\n                  SECTION III.1. Payments on Subordinated Debt. Notwithstanding\nanything to the contrary in the terms or arrangements governing the Subordinated\nDebt, no payment or prepayment of principal of or interest on the Subordinated\nDebt may be made, directly or indirectly, at any time after (a) (i) any\nGuarantied Party has made a claim under the Conseco Guaranty in respect of the\nprincipal amount of any of the Loans under the Credit Agreement or (ii)\nObligor's obligations under the Conseco Guaranty shall have been accelerated\n(including, without limitation, pursuant to the provision in the Conseco\nGuaranty that is the equivalent of Section 2.2 of this Agreement) or (b) a\nReorganization (including any proceeding in respect thereof) shall have been\ncommenced.\n\n                  SECTION III.2. Subordination. (a) Subject to Section 3.1,\npayment of the Subordinated Debt is and shall be expressly subordinate and\njunior in right of payment to the prior payment in full in cash of the Senior\nDebt to the extent and in the manner set forth herein, and the Subordinated Debt\nis hereby so subordinated as a claim against Subordinated Borrower or any of the\nassets of Subordinated Borrower, whether such claim be (i) in the event of any\ndistribution of the assets of Subordinated Borrower upon any voluntary or\ninvoluntary dissolution, winding-up, total or partial liquidation or\nreorganization, or bankruptcy, insolvency, receivership or other statutory or\ncommon law proceedings or arrangements involving Subordinated Borrower or the\nreadjustment of its liabilities or any assignment for the benefit of creditors\nor any marshaling of its assets or liabilities (collectively called a\n\"Reorganization\"), or (ii) other than in connection with a Reorganization, to\nthe prior payment in full in cash of the Senior Debt.\n\n                  (b) If Subordinated Lender shall receive any payment in\nviolation of the terms hereof, it shall hold such payment in trust for the\nbenefit of the Senior Creditors and forthwith pay it over to the Senior\nCreditors, ratably according to the aggregate amounts remaining unpaid on\naccount of the Senior Debt, for application to and payment of the Senior Debt.\n\n                  (c) In the event of any Reorganization relative to\nSubordinated Borrower or its properties, then all of the Senior Debt shall first\nbe paid in full in cash before any payment is made upon the Subordinated Debt,\nand in any such proceedings any payment or distribution of any kind or\ncharacter, whether in cash or property or securities, which may be payable or\ndeliverable in respect of the Subordinated Debt shall be paid or delivered\ndirectly to the Senior Creditors, ratably according to the aggregate amounts\nremaining unpaid on account of the Senior Debt, for application in payment of\nthe Senior Debt, unless and until all the Senior Debt is paid in full in cash,\nand Subordinated Lender hereby irrevocably authorizes the Agent, as\nattorney-in-fact for Subordinated Lender, to vote any claim or proof of claim in\nsuch proceedings in respect of the Subordinated Debt, to file or prove any claim\nin such proceedings in respect of the Subordinated Debt, to demand, sue for,\ncollect and receive any such payment or distribution, to apply such payment or\ndistribution to the payment of the Senior Debt, and to take such other action\n(including acceptance or rejection of any plan of Reorganization) in the name of\nSubordinated Lender or of the relevant Senior Creditors as the Agent may deem\nnecessary or advisable for the enforcement of the provisions hereof.\nSubordinated Lender shall execute and deliver such other and further powers of\nattorney, assignments, proofs of claim or other instruments, and take such other\nactions, as may be requested by the Agent in order to enable the Agent to\naccomplish any of the foregoing, but only with respect to Subordinated Lender's\ncapacity as a holder hereof and not in respect of any other relationship between\nSubordinated Lender and Subordinated Borrower. Consistent with, but not in\nlimitation of, the foregoing, in such an event, the Agent shall be deemed to be\nthe assigned (and thus the holder) of such claims or proof of claims and shall\nhave the right to assert and vote such claims in any Reorganization, including,\nwithout limitation, through the filing of any proof of claim therein and the\ncasting of any ballots to accept or reject any plan of reorganization proposed\nby, for, or with respect to any such Reorganization.\n\n                                       6\n\n\n                  (d) In the event that, notwithstanding the foregoing, upon any\nsuch Reorganization, any payment or distribution of the assets of Subordinated\nBorrower of any kind or character, whether in cash, property or securities,\nshall be received by Subordinated Lender in respect of the Subordinated Debt\nbefore all Senior Debt is paid in full in cash, such payment or distribution\nshall be held in trust for the Senior Creditors and shall forthwith be paid over\nto the Senior Creditors, ratably according to the aggregate amounts remaining\nunpaid on account of the Senior Debt, for application to the payment of the\nSenior Debt until all Senior Debt shall have been paid in full in cash.\n\n                  (e) Subordinated Lender agrees that, until the Senior Debt has\nbeen paid in full in cash, except as expressly provided by Section 3.1, it will\nnot take, demand or receive, or take any action to accelerate or collect, any\npayment of all or any part of the Subordinated Debt.\n\n                  (f) The Senior Creditors, or any of them, may, at any time and\nfrom time to time, without the consent of or notice to Subordinated Lender,\nwithout incurring any responsibility to Subordinated Lender, and without\nimpairing or releasing any of the rights of any Senior Creditor, or any of the\nobligations of Subordinated Lender:\n\n                  (i) change the amount or terms of or renew or extend any\n         Senior Debt or enter into or amend in any manner any agreement relating\n         to any Senior Debt;\n\n                  (ii) sell, exchange, release or otherwise deal with any\n         property at any time pledged or mortgaged to secure any Senior Debt;\n\n                  (iii) release anyone liable in any manner for the payment or\n         collection of any Senior Debt; and\n\n                  (iv) exercise or refrain from exercising any rights against\n         Subordinated Borrower and others (including Subordinated Lender).\n\n                  (g) Subordinated Lender hereby waives notice of or proof of\nreliance by any Senior Creditor upon the provisions hereof, and the Senior Debt\nshall conclusively be deemed to have been created, contracted, incurred or\nmaintained in reliance upon the provisions hereof.\n\n                  (h) Each Senior Creditor shall be a third-party beneficiary of\nthe provisions of this Section 3.2.\n\n\n                                   ARTICLE IV.\n\n                         REPRESENTATIONS AND WARRANTIES\n\n         Each Agreement Party represents and warrants to each Guarantied Party\nthat:\n\n                  SECTION IV.1. Authorization. Such Agreement Party (a) has the\npower to execute, deliver and perform this Agreement and (b) has taken all\nnecessary action to authorize the execution, delivery and performance by it of\nthis Agreement.\n\n                                       7\n\n\n                  SECTION IV.2. No Conflict. The execution, delivery and\nperformance by such Agreement Party of this Agreement does not and will not (a)\ncontravene or conflict with any provision of any law, statute, rule or\nregulation, (b) contravene or conflict with, result in any breach of, or\nconstitute a default under, any material agreement or instrument binding on such\nAgreement Party or any of its Subsidiaries (including, without limitation, any\nwrit, judgment, injunction or other similar court order), (c) result in the\ncreation or imposition of or the obligation to create or impose any Lien upon\nany of the property or assets of such Agreement Party or any of its Subsidiaries\nor (d) contravene or conflict with any provision of the articles of\nincorporation or bylaws of such Agreement Party.\n\n                  SECTION IV.3. Binding Effect. This Agreement constitutes the\nlegal, valid and binding obligations of such Agreement Party, enforceable\nagainst such Agreement Party in accordance with its terms, except as\nenforceability may be limited by applicable bankruptcy, insolvency, or similar\nlaws affecting the enforcement of creditors' rights generally or by equitable\nprinciples relating to enforceability.\n\n                  SECTION 4.4 Solvent. After giving effect to this Agreement,\nGuarantor and its Subsidiaries, taken as a whole, are Solvent. As used in this\nSection 4.4, \"Solvent\" shall mean, with respect to any Person on a particular\ndate, that on such date: (a) the fair value of the property of such Person is\ngreater than the amount of such Person's liabilities (including disputed,\ncontingent and unliquidated liabilities) as such value is established and\nliabilities evaluated for purposes of Section 101(31) of the Bankruptcy Code\nand, in the alternative, for purposes of the Uniform Fraudulent Transfer Act or\nUniform Fraudulent Conveyance Act; (b) the present fair saleable value of the\nproperty of such Person is not less than the amount that will be required to pay\nthe probably liability of such Person on its debts as they become absolute and\nmatured; (c) such Person is able to realize is able to realize upon its property\nand pay its debts and other liabilities (including disputed, contingent and\nunliquidated liabilities) as they mature in the normal course of business; (d)\nsuch Person does not intend to, and does not believe that it will, incur debts\nor liabilities beyond such Person's ability to pay as such debts and liabilities\nmature; and (e) such Person is not engaged in business or a transaction, and is\nnot about to engage in business or a transaction, for which such Person's\nproperty would constitute unreasonably small capital.\n\n\n                                   ARTICLE V.\n\n                                  MISCELLANEOUS\n\n                  SECTION V.1. Indemnity. Each Agreement Party agrees to\nindemnify the Agent, each Bank, their Affiliates and their respective directors,\nofficers, employees, persons controlling or controlled by any of them or their\nrespective agents, consultants, attorneys and advisors (the \"Indemnified\nParties\") and hold each Indemnified Party harmless from and against any and all\nliabilities, losses, claims, damages, costs and expenses of any kind to which\nany of the Indemnified Parties may become subject, whether directly or\nindirectly (including, without limitation, the reasonable fees and disbursements\nof counsel for any Indemnified Party), relating to or arising out of this\nAgreement; provided, that no Indemnified Party shall have the right to be\nindemnified hereunder for its own gross negligence or willful misconduct as\ndetermined by a court of competent jurisdiction. All obligations of each\nAgreement Party provided for in this Section 5.1 shall survive termination of\nthe Credit Agreement, any Conseco Guaranty Document and this Agreement.\n\n                                       8\n\n\n                  SECTION V.2. Notices. All notices, requests and other\ncommunications to any party hereunder shall be in writing (including facsimile\nor similar writing) and shall be given to such party at its address or facsimile\nnumber set forth on the signature pages hereof or such other address or\nfacsimile number as such party may hereafter specify for the purpose by written\nnotice to the Agent. Each such notice, request or other communication shall be\neffective (a) if given by facsimile, when such facsimile is transmitted to the\nfacsimile number specified in this Section 5.2, (b) if given by mail,\nseventy-two (72) hours after such communication is deposited in the mails with\nfirst class postage prepaid, addressed as aforesaid or (c) if given by any other\nmeans, when delivered at the address specified in this Section 5.2.\n\n                  SECTION V.3. Successors and Assigns. This Agreement, and the\nterms, covenants and conditions hereof, shall be binding upon and inure to the\nbenefit of the parties hereto, and their respective successors and assigns,\nexcept no Agreement Party shall be permitted to assign this Agreement nor any\ninterest or obligation herein without the consent of the Agent.\n\n                  SECTION V.4. SUBMISSION TO JURISDICTION, ETC. EACH AGREEMENT\nPARTY AND THE AGENT HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION\nOF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF\nTHE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OVER ANY\nACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH\nAGREEMENT PARTY AND THE AGENT HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN\nRESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW\nYORK STATE OR TO THE EXTENT PERMITTED BY LAW, FEDERAL COURT. EACH AGREEMENT\nPARTY AND THE AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED\nBY LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY\nACTION OR PROCEEDING (WHETHER BROUGHT BY ANY AGREEMENT PARTY OR ANY OF THEIR\nRESPECTIVE SUBSIDIARIES, THE AGENT, ANY BANK OR OTHERWISE) IN ANY COURT HEREIN\nABOVE SPECIFIED IN THIS SECTION 5.4 AS WELL AS ANY RIGHT IT MAY NOW OR HEREAFTER\nHAVE TO REMOVE ANY SUCH ACTION OR PROCEEDING, ONCE COMMENCED, TO ANOTHER COURT\nON THE GROUNDS OF FORUM NON CONVENIENS OR OTHERWISE. EACH AGREEMENT PARTY AND\nTHE AGENT AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE\nCONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR\nIN ANY OTHER MANNER PROVIDED BY LAW.\n\n                  SECTION V.5. Amendments; Release. Notwithstanding anything to\nthe contrary contained in the Credit Agreement, the provisions of this Agreement\nmay from time to time be amended, modified or waived, if such amendment,\nmodification or waiver is in writing and consented to by each affected Agreement\nParty and the Agent (with the consent of the Required Banks), and then any such\namendment, modification, waiver or consent shall be effective only in the\nspecific instance and for the specific purpose for which given; provided that,\nexcept as set forth in Section 5.14 of this Agreement, no such amendment,\nmodification or waiver which would permit the release or termination of all or a\nsubstantial portion of Guarantor's obligations under this Agreement shall be\neffective without the consent of each Bank.\n\n                  SECTION V.6. Section Headings. The section headings in this\nAgreement are inserted for convenience of reference and shall not be considered\na part of this Agreement or used in its interpretation.\n\n                                       9\n\n\n                  SECTION V.7. Acknowledgments. No action of the Agent permitted\nhereunder shall in any way affect or impair the rights of the Agent and the\nobligations of each Agreement Party under this Agreement. Each Agreement Party\nhereby acknowledges that there are no conditions to the effectiveness of this\nAgreement.\n\n                  SECTION V.8. Obligations Not Limited. All obligations of the\nGuarantor and rights of the Guarantied Parties in respect of the Guarantied\nObligations expressed in this Agreement shall be in addition to and not in\nlimitation of those provided in applicable law or in any other written\ninstrument or agreement relating to any of the Guarantied Obligations.\n\n                  SECTION V.9. GOVERNING LAW. THIS AGREEMENT SHALL BE A CONTRACT\nMADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.\n\n                  SECTION V.10. Counterparts. This Agreement may be executed in\nany number of counterparts, each of which shall for all purposes be deemed an\noriginal, but all such counterparts shall constitute but one and the same\nagreement. Each Agreement Party hereby acknowledges receipt of a true, correct\nand complete counterpart of this Agreement.\n\n                  SECTION V.11. Agent. The Agent acts herein as agent for\nitself, the Banks and any and all future holders of the Guarantied Obligations.\n\n                  SECTION V.12. WAIVER OF TRIAL BY JURY. EACH AGREEMENT PARTY\nAND THE AGENT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT\nTO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY\nRIGHTS UNDER THIS AGREEMENT OR ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR\nWHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH, OR ARISING FROM ANY\nBANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT AND AGREES THAT\nANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND\nNOT BEFORE A JURY; THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE GUARANTIED\nPARTIES ENTERING INTO THE RESTRUCTURING DOCUMENT.\n\n                  SECTION V.13. No Limitation on Remedies. No failure to\nexercise and no delay in exercising, on the part of the Agent or any other\nGuarantied Party, any right, remedy, power or privilege hereunder shall operate\nas a waiver thereof; nor shall any single or partial exercise of any right,\nremedy, power or privilege hereunder preclude any other or further exercise\nthereof or the exercise of any other right, remedy, power or privilege. The\nrights, remedies, powers and privileges herein provided are cumulative and not\nexclusive of any rights, remedies, powers and privileges provided by law.\n\n                  SECTION V.14. Release of This Agreement. This Agreement shall\nbe terminated and Guarantor shall be released from all of its obligations\nhereunder on the first date after the Near-Term Facilities Termination Date on\nwhich Conseco, Inc. has Investment Grade Ratings Status, as long as no Default\nor Event of Default shall have occurred and be continuing on such date.\n\n\n                                       10\n\n\n\n                  IN WITNESS WHEREOF, each Agreement Party has caused this\nGuaranty and Subordination Agreement to be duly executed and delivered by its\nofficer thereunto duly authorized as of the date first above written.\n\n\n                             CIHC, INCORPORATED, as Guarantor and \n                             Subordinated Borrower\n\n                             By: \/s\/ David A. Hill\n                                --------------------------------------\n                                Name:  David A. Hill\n                                Title: Vice-President\n\n                             Address for Notices:\n\n                             11825 North Pennsylvania Street\n                             Carmel, Indiana 46032\n                             Attention:\n\n                             Fax: 317-817-6100\n\n\n\n                             CONSECO, INC., as Obligor and Subordinated Lender\n\n                             By: \/s\/ Thomas M. Hagerty\n                                --------------------------------------\n                                Name: Thomas M. Hagerty\n                                Title: Acting Chief Financial Officer\n\n                             Address for Notices:\n\n                             11825 North Pennsylvania Street\n                             Carmel, Indiana 46032\n                             Attention:\n\n                             Fax: 317-817-6100\n\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7187],"corporate_contracts_industries":[9442],"corporate_contracts_types":[9560,9565],"class_list":["post-41051","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-conseco-inc","corporate_contracts_industries-insurance__accident","corporate_contracts_types-finance","corporate_contracts_types-finance__guaranty"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41051","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41051"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41051"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41051"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41051"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}