LIMITED CONTINUING GUARANTY
FOR VALUE RECEIVED and in consideration of credit given or to be given,
and of other financial accommodations afforded or to be afforded, to General
Acceptance Corporation f/k/a GAC Credit Corporation, an Indiana corporation
(hereinafter called "Borrower") by General Electric Capital Corporation, 0000
Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 (hereinafter called "Lender"), the
receipt and sufficiency of which consideration is hereby acknowledged, and as an
inducement to Lender to extend such financial accommodations to Borrower, the
undersigned, Conseco, Inc., an Indiana corporation, 00000 Xxxxx Xxxxxxxxxxxx
Xxxxxx, Xxxxxx, XX 00000 (hereinafter called the "Guarantor"), recognizing that
Guarantor has benefitted or shall benefit, directly or indirectly, from the
extension of such credit and financial accommodations from Lender to Borrower,
and that but for this Limited Continuing Guaranty (hereinafter called the
"Guaranty") such extensions or the continuation of such extensions of credit
would not be made by Lender to Borrower, hereby guaranties to Lender the prompt
and complete payment and performance by Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of any and all indebtedness which now
exists or may hereafter accrue or arise in any manner from or on behalf of
Borrower to Lender and the performance of any and all obligations and
liabilities of Borrower, or any of them, to Lender from whatever source or
origin and whenever arising, whether direct, indirect or contingent, whether on
open account, evidenced by an instrument or otherwise, including without
limitation all renewals, extensions and future advances, together with interest
at the rate provided in the note, notes, or other documents evidencing such
indebtedness, together with all costs, expenses and attorneys' and paralegals'
fees (the above-described obligations and liabilities in addition to any other
liabilities or obligations of Borrower and Guarantor to Lender which may arise
in any manner are hereinafter called "Obligations"), all without relief from
valuation and appraisement laws.
Notwithstanding any other provision of this Guaranty, the maximum
amount which the Guarantor may be required to pay under the terms of this
Guaranty shall not exceed Ten Million Dollars ($10,000,000.00), together with
interest calculated daily on the basis of a Three Hundred Sixty-five (365)-day
year at a per annum rate equal to Five Hundred Twenty-five (525) basis points
(5.25%) plus the LIBOR Rate (for purposes of this Guaranty, the "LIBOR Rate" is
the average of the "one month" London Interbank Offered Rates ("LIBOR")
published in the Money Rates column of THE WALL STREET JOURNAL during the
calendar month immediately preceding the calendar month in which Lender makes
its demand for payment, or published in such other publication as Lender may
designate), on any portion of any amount payable under the terms of this
Guaranty which remains unpaid after the date of a demand by Lender for payment
as provided herein, plus
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expenses of enforcement of this Guaranty, including reasonable attorneys' and
paralegals' fees (the amounts referred to in this paragraph collectively are
described hereinafter as the "Cap").
If Borrower fails to pay or perform all or any part of the Obligations
(other than the Operating Covenants, as hereinafter defined) when due, or if
Borrower at any time is in Material Default (as hereinafter defined) of any of
the Operating Covenants, and such default under the Obligations or Material
Default under the Operating Covenants has not been cured within fifteen (15)
Business Days (as that term is defined in Section 16.0 of the Loan Agreement, as
hereinafter defined) (the "Cure Period") after Xxxxxx gives written notice to
Borrower and to Guarantor describing such default in reasonable detail (which
notice also shall constitute and be deemed a demand by Lender for payment under
this Guaranty in the event that such default is not cured as provided herein),
then Guarantor immediately will pay to Lender the amount subject to such demand
(up to the amount of the Cap) without need for further notice from Lender. For
purposes of this Guaranty, (1) a "Material Default" shall mean a default
resulting from: (a) a variance of greater than one percent (1%) from the
percentage set forth in Section 13.5.D. of that certain Amended and Restated
Motor Vehicle Installment Contract Loan and Security Agreement dated April 11,
1997, as amended from time to time (the "Loan Agreement"), between Borrower and
Lender, and (b) a variance of greater than one-quarter of one percent (.25%)
from the percentages set forth in Sections 13.5.C. and 13.5.E. of the Loan
Agreement, and (2) the "Operating Covenants" shall constitute Section 13.5.C.,
Section 13.5.D. and Section 13.5.E. of the Loan Agreement. Except as provided
above and otherwise herein, Lender shall not be required to make any demand upon
or pursue or exhaust any of its rights or remedies against Borrower or others,
including without limitation other guarantors, with respect to the payment or
performance of any of the Obligations or to pursue or exhaust any of its rights
or remedies with respect to any collateral held by Lender; provided, however,
that the foregoing shall not relieve Lender of any obligation, duty,
responsibility or liability for its gross negligence, bad faith or willful or
wanton misconduct in the performance or nonperformance of its obligations under
any agreement or other document or instrument relating to the Obligations.
It is the intention of the parties hereto to comply with any and all
applicable usury laws. Accordingly, it is agreed that notwithstanding any
provision to the contrary in this Guaranty, in any of the Obligations, in any
note or other instrument, or in any of the other documents securing payment
hereof, or otherwise relating hereto, no such provision shall require the
payment or permit the collection of interest in excess of the maximum permitted
by law. If any excess of interest in such respect is provided for, or shall be
adjudged to be so provided for, then in such event (a) the provisions of this
paragraph shall govern and control, (b) neither Guarantor nor
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its successors or assigns or any other party liable for the payment hereof shall
be obligated to pay the amount of such interest to the extent that it is in
excess of the maximum amount permitted by law, (c) any such excess which may
have been collected shall be, at Lender's option, either applied as a credit
against the then unpaid principal amount owing on the Obligations, or refunded
and (d) the effective rate of interest covered by this Guaranty shall be
automatically subject to reduction to the maximum lawful contract rate allowed
under any applicable usury laws as now or hereafter construed by the courts
having jurisdiction. In determining whether or not the interest paid or payable
exceeds the maximum contract rate permitted by law, the parties hereto shall, to
the extent permitted by applicable law, (i) characterize any non-principal
payment as an expense, fee, or premium rather than as interest, (ii) exclude
voluntary prepayments and the effects thereof, and (iii) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the entire contemplated term of indebtedness evidenced by any of the
Obligations so that the interest for the respective entire term thereof does not
exceed the maximum contract rate permitted by law.
This Guaranty shall be and remain a continuing and absolute guaranty,
and constitutes the obligation of Guarantor. This Guaranty shall remain fully
enforceable despite any defenses which Borrower may assert on the underlying
Obligations, including but not limited to failure of consideration, breach of
warranty, statute of frauds, statute of limitations, accord and satisfaction and
usury, except defenses relating to the Obligations or any agreement or other
document relating thereto and based upon Xxxxxx's gross negligence, bad faith or
willful or wanton misconduct in the performance or nonperformance of Lender's
obligations under any agreement or other document or instrument relating to the
Obligations.
This Guaranty is a continuing guaranty which shall continue in force
and effect with respect to Guarantor until notice of termination in writing from
Guarantor is actually received by Lender. Such termination will be effective
only with respect to such Obligations incurred or contracted by Borrower or
acquired by Lender after the date on which Lender receives such notice.
Specifically, without limitation, any such notice shall not in any way affect or
limit either (i) the promise of Guarantor to pay as provided herein all
Obligations existing at the time Lender receives such notice, or (ii) the
promises, obligations and undertakings of any other guarantors with respect to
any Obligations, including, without limitation, those arising after the date of
such notice. This Guaranty shall remain in full force and effect as to all
Obligations existing at the date of Xxxxxx's receipt of such notice of
termination, and to all renewals and extensions thereof made prior to the date
of Lender's receipt of such notice of termination, until full payment of such
Obligations to Lender. Any Obligations that are
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revolving loans shall not be deemed repaid or reduced by reason of the
collection and subsequent relending of the proceeds of accounts, chattel paper
and similar collateral securing such loans.
With the exception of the Cure Period and except as otherwise provided
herein, Guarantor waives: (a) notice to Guarantor or Borrower or any other
guarantors of (i) acceptance of this Guaranty by Lender, (ii) Borrower incurring
additional Obligations, and (iii) the amount of the Obligations at any time
outstanding; (b) presentment for payment, demand, protest, notice to Guarantor,
any other guarantors or Borrower of dishonor, nonpayment, default and
nonperformance with respect to any of the Obligations; (c) the right to require
a proration among Guarantor and any other guarantors; (d) any and all rights to
require Lender to xxxxxxxx assets of Borrower or any other guarantors or other
party providing any security for the Obligations; (e) any defense which Borrower
or any other guarantors may have against Lender other than (i) payment, or (ii)
other defenses relating to the Obligations or any agreement or other document or
instrument relating thereto based upon Xxxxxx's gross negligence, bad faith or
willful or wanton misconduct in the performance or nonperformance of Lender's
obligations under any agreement or other document or instrument relating to the
Obligations; (f) all defenses given to sureties or guarantors at law or in
equity other than (i) payment, or (ii) other defenses relating to the
Obligations or any agreement or other document or instrument relating thereto
based upon Xxxxxx's gross negligence, bad faith or willful or wanton misconduct
in the performance or nonperformance of Lender's obligations under any agreement
or other document or instrument relating to the Obligations; and (g) all errors
and omissions concerning Lender's administration of the Obligations or its
performance or nonperformance under any agreement or other document or
instrument relating to the Obligations, except actions or inactions which amount
to gross negligence, bad faith, or willful or wanton misconduct. All waivers
contained in this Guaranty shall be without prejudice to the right of Lender, at
its option, to proceed against Borrower or any other person or entity, whether
by separate action or by joinder. All remedies or actions by Lender for payment
or fulfillment of the Obligations are cumulative and the pursuit of one shall
not preclude the exercise of any other rights or remedies.
For purposes of the Guaranty, Guarantor hereby grants to Lender (but
not to Borrower) its consent to any accommodation made or to be made by Lender
to Borrower and hereby grants to Lender full power, in its uncontrolled
discretion and without notice to Guarantor, any other guarantors, or Borrower,
to deal in any manner with the Obligations including, without limitation, the
following powers: (a) to modify or otherwise change any terms of the Obligations
(or to make any other alteration in the underlying debt), including but not
limited to the rate of interest thereon and the maturity date thereof, or to
grant any extension or renewal thereof and any other
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indulgence with respect thereto; (b) to release any collateral as requested by
Borrower in the ordinary course of Xxxxxxxx's business, or to release any
collateral as requested by Borrower outside of the ordinary course of Xxxxxxxx's
business pursuant to the unanimous written consent of the Borrower's board of
directors; (c) to defer enforcing payment or any term of the Obligations; or (d)
to release any other guarantor or surety of the Obligations; provided, however,
that notwithstanding the foregoing, Lender shall not have the right, without
Guarantor's prior written consent, to (x) release or agree to release Borrower
from the Obligations, or (y) to defer or agree to defer payment, or to modify or
otherwise change any terms, of the Obligations past the time that Lender demands
any payment from Guarantor hereunder. The obligations of Guarantor hereunder
shall not be released, discharged, or in any way affected, nor shall Guarantor
have any rights or recourse against Lender because of any action Lender may
take, omit to take, or delay in taking under the foregoing powers, and Guarantor
hereby waives any and all claims of discharge based on such actions by Lender,
no matter whether it increases Guarantor's exposure hereunder. The obligations
of Guarantor under this Guaranty shall be the joint and several obligations of
Guarantor and any other guarantors (now existing or hereafter arising) of the
obligations of Borrower to Lender.
Without limiting the foregoing waivers by Guarantor of right to notice,
and without obligating Lender to follow the following procedure if demand is
made after the occurrence of an event of default under any of the written
documents or instruments evidencing the Obligations (an "Event of Default"),
except as otherwise provided herein Lender may at any time demand payment from
Guarantor by mailing to Guarantor written demand therefor addressed to any
address of Guarantor in Lender's records, and Xxxxxxxxx agrees that the sending
of such written demand as herein provided shall be a sufficient demand for
payment hereunder.
Whenever possible, each provision of this Guaranty shall be interpreted
in such a manner as to be effective and valid under applicable law, but if such
provision shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or remaining provisions of this or
any related agreement or instrument.
Guarantor represents to and for the benefit of Lender, upon which
representation Lender is entitled to rely and Guarantor acknowledges that Lender
is relying, that (i) Guarantor is an Indiana corporation, (ii) the execution,
delivery and performance hereof will not violate any law or any material
contract, agreement or understanding which is binding on Guarantor, (iii) this
Guaranty is the valid and binding obligation of Guarantor, enforceable according
to its terms, except that the binding effect and the enforceability
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of this Guaranty is subject to application of bankruptcy, insolvency,
reorganization, moratorium and other laws in effect from time to time affecting
the rights of creditors generally, as such laws may be applied in the event of a
bankruptcy, insolvency, reorganization or other similar proceeding of, or
moratorium applicable to, Guarantor, and by the exercise of judicial discretion
in the application of general principles of equity, and (iv) any financial
statements of Guarantor provided to Lender are true, accurate and complete, have
been prepared on a consistent basis, and fairly present the financial position
of Guarantor as of the date thereof.
Guarantor acknowledges that (i) it is capable of and responsible for
obtaining information on and keeping informed as to all aspects of Borrower's
business, including without limitation its financial affairs and business
prospects, and the status of the Obligations from time to time, and (ii) Lender
has no responsibility to so inform Guarantor.
Guarantor acknowledges that separate guaranties may be given in
connection with the Obligations and this Guaranty shall not be modified,
amended, limited (other than according to the terms hereof), or extinguished if
one or more of the terms of the other guaranty agreements differ from those of
this Guaranty or are subsequently amended, modified, limited, or extinguished.
The execution of this Guaranty shall not affect the validity or enforceability
of any existing guaranties, which guaranties shall remain in full force and
effect. All obligations hereunder shall continue, notwithstanding the incapacity
or lack of authority of any other guarantors, and any failure by Lender to file,
pursue or enforce a claim against any other guarantors, or any waiver, release,
consent or other accommodation given or provided to any other guarantors, shall
not operate to release Guarantor or any other guarantors from liability
hereunder, or limit the rights of Lender against Guarantor or any other
guarantor. The failure of any other person to sign this Guaranty or any other
guaranty shall not release or affect the liability of the signer hereof.
Guarantor further agrees that, to the extent that Borrower makes a
payment or payments to Lender, or Lender receives any proceeds of collateral,
which payment or payments or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or otherwise is required to
be repaid to Borrower, its estate, trustee, receiver or any other party,
including, without limitation, under any bankruptcy law, state or federal law,
common law or equitable cause, then to the extent of such payment or repayment,
the Obligations or part thereof which has been paid, reduced or satisfied by
such amount shall be reinstated and continued in full force and effect as of the
date such initial payment, reduction or satisfaction occurred.
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Guarantor agrees that Guarantor's responsibility under this Guaranty to
pay to Lender the Obligations and any payments thereof repaid as preferences
shall not be extinguished or modified by any release of Borrower or other party
primarily liable on the Obligations, whether by voluntary release, settlement of
a bankruptcy proceeding, settlement of a contested matter in a bankruptcy case,
settlement of litigation, settlement of a claim not yet resulting in litigation,
settlement of a preference claim or otherwise; provided, however, that Guarantor
shall have no liability hereunder in the event that, except as otherwise
permitted herein, Xxxxxx voluntarily releases Borrower from any Obligations or
voluntarily releases any collateral without the written consent of Guarantor. In
all events (other than such voluntary release by Lender of Borrower from any
Obligations or such voluntary release of Collateral without the written consent
of Guarantor) the responsibility of Guarantor to pay Lender, and Xxxxxx's right
to recover from Guarantor the full amount of the Obligations (to the extent of
the Cap), shall extend until Lender has received actual payment in full in cash
of and performance of all of the Obligations, without regard to any modification
or a release thereof, and shall continue until such payment, by the passage of
time and the statute of limitations, cannot be recovered by Xxxxxxxx, Borrower
as debtor in possession, a trustee in bankruptcy of Borrower or any other person
or organization.
Notwithstanding any payment or payments made by Guarantor hereunder, or
any set-off or application of funds of Guarantor by Xxxxxx, Guarantor shall not
be entitled to be subrogated to any of the rights of Lender against Borrower or
against any collateral security or guarantee or right of offset held by Lender
for the payment of the Obligations, nor shall Guarantor seek or be entitled to
seek any contribution or reimbursement from Borrower in respect of payments made
by Guarantor hereunder, until all amounts owing to Lender by Xxxxxxxx on account
of the Obligations are paid in full and the Loan Agreement is terminated. If any
amount shall be paid to Guarantor on account of such subrogation rights at any
time when all of the Obligations shall not have been paid in full, such amount
shall be held by Guarantor in trust for Lender, segregated from other funds of
Guarantor, and shall, forthwith upon receipt by Guarantor, be turned over to
Lender in the exact form received by Guarantor (duly indorsed by such Guarantor
to Lender, if required), to be applied against the Obligations, whether matured
or unmatured, in such order as Lender may determine.
In executing this Guaranty, Guarantor acknowledges and agrees that (1)
it has exercised its own independent credit judgment and that has not relied on
Lender, (2) Lender has no duty to disclose to Guarantor any information
concerning the present or continuing creditworthiness of Borrower, no matter
whether (a) Lender has reason to believe that facts within its knowledge
materially increase the risk beyond what Guarantor intends to assume, (b) Xxxxxx
has reason
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to believe that Guarantor does not know such facts, or (c) Lender has a
reasonable opportunity to convey these facts to Guarantor, and (3) Guarantor
waives any right to such disclosure by Xxxxxx and Guarantor shall continue to
exercise its own due diligence and independent credit judgment with regard to
Borrower. Moreover, Guarantor acknowledges and agrees that it has had the
benefit of the advice of legal counsel of its own choice in connection with the
preparation and negotiation of this Guaranty, and has been afforded an
opportunity to review this Guaranty with such legal counsel, and that Guarantor
fully understands the implications and ramifications of the agreements it has
made in this Guaranty.
This Guaranty shall extend to and bind the successors and assigns of
Guarantor. This Guaranty shall inure to the benefit of all affiliates,
transferees, assignees and/or endorsees of Lender of any part or parts or all of
the Obligations, and of Lender's successors and assigns.
Guarantor acknowledges and agrees (1) that promptly upon filing with
the Securities and Exchange Commission, Guarantor shall provide to Lender copies
of all periodic and special reports on Forms 10-K, 10-Q or 8-K (or any forms in
replacement thereof) required or permitted to be filed under federal securities
laws and regulations (which periodic and special reports shall be deemed
provided by Guarantor to Lender to the extent that such are accessible by the
general public by electronic means), (2) that Lender may rely upon the validity
and accuracy of all statements and representations set forth in all such
periodic and special reports, (3) that Guarantor will notify Lender immediately
of any material adverse change in Guarantor's financial condition other than as
reflected in all such periodic and special reports, and (4) that Guarantor shall
from time to time provide to Lender such other information concerning Guarantor
as Lender may reasonably request.
THE VALIDITY OF THIS GUARANTY, ITS CONSTRUCTION, INTERPRETATION AND
ENFORCEMENT AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER,
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
INDIANA AS APPLIED TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN
INDIANA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. XXXXXXXXX AGREES THAT
ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS GUARANTY SHALL BE
TRIED AND LITIGATED ONLY IN THE STATE COURTS LOCATED IN THE COUNTY OF MARION,
STATE OF INDIANA, OR THE FEDERAL COURTS WHOSE VENUE INCLUDES THE COUNTY OF
MARION, STATE OF INDIANA, OR, AT THE SOLE OPTION OF LENDER, IN ANY OTHER COURT
IN WHICH LENDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS
SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. GUARANTOR WAIVES, TO
THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY AND ANY
RIGHT GUARANTOR MAY HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS"
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OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH
THIS PARAGRAPH.
Guarantor acknowledges and agrees that unless the context indicates
otherwise herein, words importing the singular number include the plural number,
and vice versa; that as used herein, the terms "hereof," "thereof," "hereby,"
"thereby," "herein," "therein," "hereto," "thereto," "hereunder," "thereunder"
and similar terms refer to this Guaranty, as the context so requires; and that
words of any gender include the correlative words of the other genders, unless
the sense indicates otherwise.
This Guaranty may be executed simultaneously in two or more
counterparts by means of original and/or facsimile signatures, each of which
counterparts shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Guarantor acknowledges and agrees that this Guaranty accurately
represents and contains the entire, complete and exclusive terms of the
agreement between Guarantor and Lender with respect to the subject matter
hereof; that in executing this Guaranty, Guarantor is not relying on any
representations (whether written or oral) made by or on behalf of Lender except
as expressly set forth in this Guaranty; and that any and all prior statements
and/or representations made by or on behalf of Lender to Guarantor (whether
written or oral) in connection with the subject matter hereof are merged in this
Guaranty. No course of dealing, course of performance
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or trade usage, and no parole evidence of any nature, shall be used to
supplement or modify any terms hereof.
IN WITNESS WHEREOF, the undersigned have executed this Guaranty
effective as of September 16, 1997.
"Guarantor"
CONSECO, INC.
By /s/ XXXXXX X. XXXX
Name Printed:XXXXXX X. XXXX
Title:Executive Vice President
Chief Financial Officer
.
AFFIX CORPORATE SEAL HERE:
ACCEPTED:
"Lender"
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ XXXXXX XXXXXXXXX
X. Xxxxxx XxXxxxxxx
Account Executive
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STATE OF INDIANA )
) SS:
COUNTY OF XXXXXX )
On the 16th day of September, 1997, before me the undersigned, a Notary
Public in and for said County and State, personally appeared
Xxxxxx X. Xxxx, to me known, who, being by me first duly sworn upon
his oath, did say that (s)he is the Exec V.Pres & CFO of Conseco, Inc., the
Guarantor named in and which executed the foregoing Limited Continuing Guaranty;
that (s)he knows the seal of said corporation; that the seal affixed to said
Limited Continuing Guaranty is the corporate seal of said corporation; that it
was so affixed by order of the Board of Directors of said corporation; that
(s)he signed her/his name thereto by like order and by her/his free act and deed
and acknowledged the said Limited Continuing Guaranty to be the free act and
deed of said corporation; and that all representations contained therein are
true.
My Commission Expires:
Xxxx X. Xxxxxxx
11-18-2000 Notary Public
My County of Residence:
Xxxxxx
Xxxx X. Xxxxxxx
Printed
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