Exhibit 10.8.33
CASH COLLATERAL PLEDGE AGREEMENT
among
CDOC, INC.,
JPMORGAN CHASE BANK,
as Collateral Agent
and
JPMORGAN CHASE BANK,
as Depositary Bank
Dated as of March 20, 2002
Table of Contents
Page
SECTION 1. DEFINED TERMS..............................................................................1
1.1 Definitions....................................................................................1
1.2 Other Definitional Provisions..................................................................3
SECTION 2. ESTABLISHMENT OF CASH COLLATERAL ACCOUNT;..................................................3
DEFINITION OF "COLLATERAL".......................................................................................3
2.1 Cash Collateral Account........................................................................3
2.2 Definition of Collateral.......................................................................3
2.3 The Account....................................................................................4
SECTION 3. GRANT OF SECURITY INTEREST BY GRANTOR......................................................4
3.1 Grant..........................................................................................4
3.2 Intercreditor Relationship Regarding Collateral................................................4
3.3 Continuing Security Interest...................................................................4
SECTION 4. WITHDRAWALS BY GRANTOR....................................................................4
SECTION 5. INVESTMENTS................................................................................4
5.1 Investments; Losses............................................................................4
5.2 No Obligation to Make or Track Investments Based on Collateral Allocation......................5
SECTION 6. COMPENSATION/EXPENSES/INDEMNITY............................................................5
6.1 Compensation/Expenses..........................................................................5
6.2 Indemnity......................................................................................5
6.3 Survival.......................................................................................5
SECTION 7. REMEDIAL PROVISIONS........................................................................5
SECTION 8. REPRESENTATIONS AND WARRANTIES OF GRANTOR..................................................6
8.1 Title; No Other Liens..........................................................................6
8.2 Perfected First Priority Liens.................................................................6
SECTION 9. COVENANTS..................................................................................6
9.1 Maintenance of Perfected Security Interest; Further Documentation..............................6
SECTION 10. AUTHORITY OF COLLATERAL AGENT..............................................................7
10.1 General Authority of the Collateral Agent......................................................7
10.2 Execution of Financing Statements..............................................................7
10.3 Further Assurances.............................................................................7
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TABLE OF CONTENTS
Page
10.4 Exculpatory Provisions.........................................................................8
10.5 Delegation of Duties...........................................................................8
10.6 Reliance by Collateral Agent...................................................................8
10.7 Moneys to be Held in Trust.....................................................................9
10.8 Resignation and Removal of the Collateral Agent................................................9
10.9 Status of Successor Collateral Agent..........................................................10
10.10 Merger of the Collateral Agent................................................................10
SECTION 11. ABSOLUTE OBLIGATIONS......................................................................10
11.1 Absolute, etc.................................................................................11
11.2 Reinstatement, etc............................................................................11
11.3 Waiver, etc...................................................................................12
11.4 Waiver of Subrogation; Subordination..........................................................12
SECTION 12. MISCELLANEOUS.............................................................................12
12.1 Amendments....................................................................................12
12.2 Notices.......................................................................................12
12.3 No Waiver by Course of Conduct; Cumulative Remedies...........................................12
12.4 Successors and Assigns........................................................................13
12.5 Counterparts..................................................................................13
12.6 Severability..................................................................................13
12.7 Section Headings..............................................................................13
12.8 Integration...................................................................................13
12.9 Depository Bank's Location....................................................................13
12.10 GOVERNING LAW.................................................................................13
Schedule I - Notice Addresses
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CASH COLLATERAL PLEDGE AGREEMENT
CASH COLLATERAL PLEDGE AGREEMENT, dated as of March__, 2002, among CDOC,
INC., a Delaware corporation (the "Grantor"), ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK, ("Chase"),
as Collateral Agent (in such capacity, the "Collateral Agent") for the Secured
Parties (as defined below) and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK, as Depositary Bank (in such
capacity, the "Depositary Bank").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement, dated as of November
22, 2000, (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among certain borrowers (the "Borrowers"), the other
financial institutions parties thereto (the "Banks"), and ▇▇ ▇▇▇▇▇▇ Chase Bank
(formerly known as The Chase Manhattan Bank), as Administrative Agent (in such
capacity, the "Administrative Agent"), the Administrative Agent and the Banks
made loans to the Borrowers to refinance loans under that certain Termination
and Replacement Agreement, dated as of May 30, 2000;
WHEREAS, the obligations of the Borrowers under the Credit Agreement and
the Loan Documents, as defined therein, are guaranteed by Conseco, Inc. (the
"Guarantor") pursuant to a Guaranty dated November 22, 2000 (the "Guaranty");
WHEREAS, the Guarantor has agreed pursuant to a Consent and Agreement
dated March 20, 2002 to deliver this Agreement to the Guarantor;
WHEREAS, the Grantor has derived substantial direct and indirect
benefits from the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the Banks
to enter into the Amendment, the Grantor, the Collateral Agent and the
Depositary Bank hereby agree as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
(a) The following terms shall have the following meanings:
"Account Agreement" shall have the meaning set forth in Section
2.1.
"Administrative Agent" shall have the meaning set forth in the
first Recital.
"Agreement" shall mean this Cash Collateral Pledge Agreement, as
the same may be amended, supplemented or otherwise modified from time to
time.
"Banks" shall have the meaning set forth in the first recital.
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"Borrowers" shall have the meaning set forth in the first
Recital.
"Cash Collateral Account" shall have the meaning set forth in
Section 2.1 hereof.
"Cash Equivalents": (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued
by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition; (ii) commercial paper of a bank or other financial
institution rated at least AA- by Standard & Poor's Ratings Services
("S&P") or P-1 by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), or
carrying an equivalent rating by a nationally recognized rating agency,
if both of the two named rating agencies cease publishing ratings of
commercial paper issuers generally, and maturing within six months from
the date of acquisition; and (iii) securities with maturities of one
year or less from the date of acquisition issued by a foreign or
domestic bank or other financial institution and rated at least AA- by
S&P or P-1 by Moody's.
"Chase" shall have the meaning as set forth in the preamble.
"Collateral" shall have the meaning as set forth in Section 2.2.
"Collateral Agent" shall have the meaning set forth in the
Preamble.
"Collateral Agent Fees" shall have the meaning set forth in
Section 6.1.
"Credit Agreement" shall have the meaning set forth in the first
Recital.
"Depositary Bank" shall have the meaning set forth in the
Preamble.
"Grantor" shall have the meaning set forth in the preamble.
"Guarantor" shall have the meaning set forth in the second
Recital.
"Guaranty" shall have the meaning set forth in the second
Recital.
"Loans" shall have the meaning specified in the Credit Agreement.
"Obligations" shall mean all obligations and liabilities of
whatever nature or type of Conseco that may arise under or in connection
with the Guaranty, or any other agreement to which Conseco is a party
relating in any manner to the Loans, in each case whether on account of
guarantee obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all reasonable fees and disbursements of
counsel to the Collateral Agent, the Administrative Agent that are
required to be paid pursuant to the terms of this Agreement or any other
agreement).
"Proceeds" shall mean all "proceeds" as such term is defined in
Section 9-306(1) of the UCC and, in any event, shall include, without
limitation, all dividends or other income from the Investment Property,
collections thereon or distributions or payments with respect thereto.
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"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Secured Obligations" shall mean the collective reference to (a)
the Obligations, and (b) the Collateral Agent Fees.
"Secured Parties": the collective reference to (a) the
Administrative Agent, (b) the Banks and (c) the Collateral Agent.
"Subrogation Rights" shall have the meaning set forth in Section
11.4.
"UCC" shall mean the Uniform Commercial Code as from time to time
in effect in the State of New York.
1.2 Other Definitional Provisions. (a) The words "hereof,"
"herein", "hereto" and "hereunder" and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement, and Section and Schedule
references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral
or any part thereof, when used in relation to a Grantor, shall refer to
such Grantor's Collateral or the relevant part thereof.
SECTION 2. ESTABLISHMENT OF CASH COLLATERAL ACCOUNT;
DEFINITION OF "COLLATERAL"
2.1 Cash Collateral Account. The Grantor has agreed to enter into
an account agreement (the "Account Agreement") with the Depositary Bank
and Grantor may in the future deposit cash collateral in immediately
available funds into an investment account maintained by Chase pursuant
to the Account Agreement (hereinafter the "Cash Collateral Account") in
the name of the Collateral Agent. The Cash Collateral Account shall be
subject to the exclusive dominion and control of the Collateral Agent.
The Grantor, the Depository Bank and the Collateral Agent agree that the
Cash Collateral Account is a securities account under Article 8 of the
UCC and all assets held in the account shall be treated as financial
assets under Article 8 of the UCC. Depositary Bank agrees that it shall
at all times be a "securities intermediary" within the meaning of
Section 8-102 of the UCC.
2.2 Definition of Collateral. The "Collateral" shall be all
funds, items, instruments, investments, securities, and other things of
value at any time deposited with or held by (whether for collection,
provisionally or otherwise), the Depositary Bank (solely in its capacity
as Depositary Bank), the Collateral Agent (solely in its capacity as
Collateral Agent), or any agent, bailee or custodian therefor, in each
case, for deposit in the Cash Collateral Account, all Cash Equivalents
referred to in Section 5 hereof, and all Proceeds of any and all of the
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foregoing, including, without limitation, any of the foregoing from time
to time paid to, deposited in, credited to or held in the Cash
Collateral Account.
2.3 The Account. The parties hereby agree and represent that (a)
the Cash Collateral Account will be established in the name of
Collateral Agent as recited above, (b) the Cash Collateral Account does
not hold any financial assets which are registered in the name of
Grantor, payable to its order or specially endorsed to it, which have
not been endorsed to the Collateral Agent or in blank, (c) the security
entitlements arising out of the financial assets carried in the Cash
Collateral Account and any free credit balance are valid and legally
binding obligations of the Depository Bank, and (d) except for the
claims and interests of Grantor and the Collateral Agent in the Cash
Collateral Account, the Collateral Agent does not know of any claim to
or interest in the Cash Collateral Account or in any financial asset
carried therein.
SECTION 3. GRANT OF SECURITY INTEREST BY GRANTOR
3.1 Grant. Grantor hereby assigns and transfers to the Collateral
Agent, and hereby grants to the Collateral Agent, for the benefit of the
Secured Parties, a security interest in, the Collateral and in the Cash
Collateral Account, as collateral security for the Secured Obligations,
including for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise, but in
all instances subject to the provisions of the Credit Agreement) of the
Secured Obligations.
3.2 Intercreditor Relationship Regarding Collateral. The
Collateral shall be held for the ratable benefit of the Secured Parties.
3.3 Continuing Security Interest. This Pledge Agreement shall
create a continuing security interest in the Collateral and shall: (a)
remain in full force and effect until the payment in full of all Secured
Obligations, (b) be binding upon Grantor and its successors,
transferees, and assigns, and (c) inure, together with the rights and
benefits of the Collateral Agent hereunder, to the benefit of each of
the Secured Parties.
SECTION 4. WITHDRAWALS BY GRANTOR
Pending payment in full of the Secured Obligations, the Grantor shall
not have any right to withdraw or otherwise have access to any Cash Collateral
deposited in the Collateral Account except to the extent that the Grantor
delivers to the Collateral Agent a certificate in a form reasonably satisfactory
to the Collateral Agent: (i) stating the amount of the withdrawal, and (ii)
authorizing the application of such Cash Collateral to the Loans or the Guaranty
as specifically described in said certificate.
SECTION 5. INVESTMENTS
5.1 Investments; Losses. The Cash Collateral Account shall be
invested pursuant to the Account Agreement, but only in investments of
Cash Equivalents in which the Collateral Agent has a perfected security
interest as Grantor may from time to time direct. All investments shall
be made in the name of the Collateral Agent. All income from such
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investments shall be retained in the Cash Collateral Account, and be
maintained and applied in the same manner as other balances. All such
investments shall be at risk of Grantor and the Collateral Agent shall
not be liable to any person or entity with respect to any loss with
respect to such investments in the absence of its gross negligence or
willful misconduct. All income from investments in the Cash Collateral
Account shall be taxable to Grantor, and the Collateral Agent shall
prepare and distribute to Grantor, as required, Form 1099 or other
appropriate federal and state income tax forms with respect to such
income. Grantor shall pay when due all such taxes on such income.
5.2 No Obligation to Make or Track Investments Based on
Collateral Allocation. Consistent with the foregoing, the Collateral
Agent shall have no obligation to make, track, or otherwise account for
investment gains or losses with respect to the Collateral based upon the
intercreditor relationship and agreement set forth in Section 3.2
hereof.
SECTION 6. COMPENSATION/EXPENSES/INDEMNITY
6.1 Compensation/Expenses. The Grantor hereby agrees to pay to
the Depositary Bank's and the Collateral Agent's usual and customary
fees, charges and all other related expenses with regard to the Cash
Collateral Account and all services performed in connection therewith,
and, in addition, the Grantor agrees to pay on demand all reasonable
costs and expenses (including without limitation reasonable legal fees
and expenses) incurred in connection with the administration, work-out
or enforcement of this Agreement or any Collateral (collectively,
"Collateral Agent's Fees").
6.2 Indemnity. (a) The Grantor agrees to pay, and to save the
Collateral Agent and the other Secured Parties harmless from, any and
all liabilities with respect to, or resulting from any delay in paying,
any and all stamp, excise, sales or other taxes which may be payable or
determined to be payable with respect to any of the Collateral or in
connection with any of the transactions contemplated by this Agreement.
(b) The Grantor agrees to pay, and to save the Collateral Agent
and the other Secured Parties harmless from, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and
administration of this Agreement except with respect to the gross
negligence or wilful misconduct of the Collateral Agent or any such
Secured Party.
6.3 Survival. The obligations of the Grantor under this Section 6
shall survive termination of this Agreement.
SECTION 7. REMEDIAL PROVISIONS
If any Event of Default shall have occurred and is continuing, the
Collateral Agent may, and upon instruction of the Administrative Agent shall,
from time to time (i) if the Collateral Agent concludes in its sole and absolute
discretion that such action is warranted, apply any of the moneys in the Cash
Collateral Account to the payment of due and unpaid Collateral Agent Fees, (ii)
distribute any part or all of the remaining Cash Collateral to the Agent for
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application against the Secured Obligations, and (iii) after payment in full,
including interest and expenses, of the Secured Obligations, distribution of any
surplus to the Grantor. In addition to the foregoing, the Collateral Agent shall
have and expressly reserves the ability to exercise any and all rights and
remedies of a secured party under the UCC and other applicable law upon the
occurrence of an Event of Default. In connection with the foregoing, the
Collateral Agent may liquidate any investment included in the Collateral prior
to the maturity thereof and shall not be liable for any losses incurred in
connection with such liquidation.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF GRANTOR
Grantor hereby represents and warrants to the Collateral Agent that:
8.1 Title; No Other Liens. Except for the security interest
granted to the Collateral Agent for the ratable benefit of the Secured
Parties pursuant to this Agreement, the Grantor owns each item of the
Cash Collateral free and clear of any and all liens or claims of others.
No financing statement or other public notice with respect to all or any
part of the Cash Collateral is on file or of record in any public
office, except as may have been filed in favor of the Collateral Agent,
for the benefit of the Secured Parties, pursuant to this Agreement.
8.2 Perfected First Priority Liens. The security interests
granted pursuant to this Agreement (a) upon deposit of any Collateral in
the Cash Collateral Account, will constitute valid perfected security
interests in all of the Collateral (subject to applicable bankruptcy and
insolvency laws) in favor of the Collateral Agent, for the benefit of
the Secured Parties, as Collateral security for the Secured Obligations,
enforceable in accordance with the terms hereof against all creditors of
the Grantor and any Persons purporting to purchase any Collateral from
the Grantor and (b) are prior to all other Liens on the Collateral in
existence on the date hereof.
SECTION 9. COVENANTS
The Grantor covenants and agrees with the Collateral Agent that, from
and after the date of this Agreement until the Secured Obligations shall have
been paid in full:
9.1 Maintenance of Perfected Security Interest; Further Documentation.
(a) The Grantor shall maintain the security interest created by
this Agreement as a perfected security interest having the priority
described in Section 8.2 and shall defend such security interest against
the claims and demands of all Persons whomsoever.
(b) At any time and from time to time, upon the written request
of the Collateral Agent, and at the sole expense of the Grantor, the
Grantor will promptly and duly execute and deliver, and have recorded,
such further instrument and documents and take such further actions as
the Collateral Agent may reasonably request for the purpose of obtaining
or preserving the full benefits of this Agreement and of the rights and
powers herein granted, including, without limitation, filing and
financing or continuation statements under the UCC (or other similar
laws) in effect in any jurisdiction with respect to the security
interests created.
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SECTION 10. AUTHORITY OF COLLATERAL AGENT
10.1 General Authority of the Collateral Agent. (a) The Grantor
herein irrevocably constitutes and appoints the Collateral Agent and any
officer or agent thereof, with full power of substitution, during the
continuance of an Event of Default, as its true and lawful
attorney-in-fact with full power and authority in its or his own name,
from time to time in the Collateral Agent's discretion to take any and
all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to carry out the terms
of this Agreement and accomplish the purposes hereof and thereof. All
powers, authorizations and agencies contained in this Agreement are
coupled with an interest and are irrevocable until this Agreement is
terminated and the security interests created hereby are released.
(b) By acceptance of the benefits of this Agreement each Secured
Party shall be deemed irrevocably (i) to consent to the appointment of
the Collateral Agent as its agent hereunder, (ii) to confirm that the
Collateral Agent shall have the authority to act as the exclusive agent
of such Secured Party for enforcement of any provisions of this
Agreement against any Grantor or the exercise of remedies hereunder or
thereunder, (iii) to agree that such Secured Party shall not take any
action to enforce any provisions of this Agreement against the Grantor
or to exercise any remedy hereunder or thereunder and (iv) to agree to
be bound by the terms of this Agreement.
(c) Other than as provided to the contrary herein, the Collateral
Agent will follow any written instructions provided by the Agent,
although if it should reasonably conclude that any requested action
would subject it to unacceptable risk of liability it may request a
sufficient indemnity from the Banks before being required to proceed
with such instructions.
10.2 Execution of Financing Statements. Pursuant to the UCC and
any other applicable law, the Grantor authorizes the Collateral Agent to
file or record financing statements and other filings or recording
documents or instruments with respect to the Collateral in such form and
in such offices as the Collateral Agent determines appropriate to
perfect the security interests of the Collateral Agent under this
Agreement. A photographic or other reproduction of this Agreement shall
be sufficient as a financing statement or other filing or recording
document or instrument for filing or recording in any jurisdiction.
10.3 Further Assurances. At any time and from time to time, upon
the written request of the Administrative Agent or the Collateral Agent,
and at the expense of Conseco, the Grantor will promptly execute and
deliver any and all such further instruments and documents and take such
further action as is necessary or reasonably requested further to
perfect, or to protect the perfection of, the liens and security
interests granted hereunder including, without limitation, the filing of
any financing or continuation statements under the UCC in effect in any
jurisdiction. In addition to the foregoing, at any time and from time to
time, upon the written request of the Collateral Agent, and at the
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expense of the Grantor, the Grantor will promptly execute and deliver
any and all such further instruments and documents and take such further
action as the Collateral Agent determines is necessary or reasonably
requested to obtain the full benefits of this Agreement and of the
rights and powers herein. Notwithstanding the foregoing, in no event
shall the Collateral Agent have any obligation to monitor the perfection
or continuation of perfection or the sufficiency or validity of any
security interest in or related to the Collateral.
10.4 Exculpatory Provisions. (a) The Collateral Agent shall not
be responsible in any manner whatsoever for the correctness of any
recitals, statements, representations or warranties herein, all of which
are made solely by the Grantor. The Collateral Agent makes no
representations as to the value or condition of the Collateral or any
part thereof, or as to the title of the Grantor thereto or as to the
security afforded by this Agreement or as to the validity, execution
(except its execution), enforceability, legality or sufficiency of this
Agreement, or the Secured Obligations, and the Collateral Agent shall
incur no liability or responsibility in respect of any such matters.
(b) The Collateral Agent shall not be required to ascertain or
inquire as to the performance by the Grantor of any of the covenants or
agreements contained herein.
(c) The Collateral Agent shall have the same rights with respect
to any Secured Obligation held by it as any other Secured Party and may
exercise such rights as though it were not the Collateral Agent
hereunder, and may accept deposits from, lend money to, and generally
engage in any kind of banking or trust business with, the Grantor or
Conseco or any of Conseco's other affiliates as if it were not the
Collateral Agent.
(d) The Collateral Agent shall not be liable for any action taken
or omitted to be taken in accordance with the Agreement except for its
own gross negligence or willful misconduct.
10.5 Delegation of Duties. The Collateral Agent may execute any
of the powers hereof and perform any duty hereunder either directly or
by or through agents or attorneys-in-fact. The Collateral Agent shall be
entitled to advice of counsel concerning all matters pertaining to such
powers and duties. The Collateral Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by
it without gross negligence or willful misconduct.
10.6 Reliance by Collateral Agent. (a) Whenever in the
administration of this Agreement the Collateral Agent shall deem it
necessary or desirable that a factual matter be proved or established in
connection with the Collateral Agent taking, suffering or omitting any
action hereunder or thereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may be deemed to be
conclusively proved or established by a certificate of a Responsible
Officer of the Grantor delivered to the Collateral Agent, and such
certificate shall be full warrant to the Collateral Agent for any action
taken, suffered or omitted in reliance thereon, subject, however, to the
provisions of Section 10.4(d).
(b) The Collateral Agent may consult with counsel, and any
opinion of counsel shall be full and complete authorization and
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protection in respect of any action taken or suffered by it hereunder.
The Collateral Agent shall have the right at any time to seek
instructions concerning the administration of this Agreement from any
court of competent jurisdiction.
(c) The Collateral Agent may rely, and shall be fully protected
in acting, upon any resolution, statement, certificate, instrument,
opinion, report, notice, request, consent, order, bond or other paper or
document which it has no reason to believe to be other than genuine and
to have been signed or presented by the proper party or parties or, in
the case of cables, telecopies and telexes, to have been sent by the
proper party or parties. In the absence of its own gross negligence or
willful misconduct, the Collateral Agent may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Collateral Agent and conforming to the requirements of this Agreement.
(d) The Collateral Agent shall not be under any obligation to
exercise any of the rights or powers vested in the Collateral Agent by
this Agreement unless the Collateral Agent shall have been provided
adequate security and indemnity against the costs, expenses and
liabilities which may be incurred by the Collateral Agent, including
such reasonable advances as may be requested by the Collateral Agent.
(e) Any opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate of a Responsible Officer of the
Grantor or representations made by a Responsible Officer of the Grantor
in a writing filed with the Collateral Agent.
10.7 Moneys to be Held in Trust. All moneys received by the
Collateral Agent under or pursuant to any provision of this Agreement
shall be held in trust for the purposes for which they were paid or are
held.
10.8 Resignation and Removal of the Collateral Agent. (a) The
Collateral Agent may at any time, by giving written notice to the
Grantor, the Administrative Agent and each of the Banks, resign and be
discharged of the responsibilities hereby created, such resignation to
become effective upon (i) the appointment of a successor Collateral
Agent, (ii) the acceptance of such appointment by such successor
Collateral Agent and (iii) the approval of such successor Collateral
Agent evidenced by one or more instruments signed by the Administrative
Agent and Grantor. If no successor Collateral Agent shall be appointed
and shall have accepted such appointment within 90 days after the
Collateral Agent gives the aforesaid notice of resignation, the
Collateral Agent, the Grantor, the Administrative Agent, or any other
Secured Party may apply to any court of competent jurisdiction to
appoint a successor Collateral Agent to act until such time, if any, as
a successor Collateral Agent shall have been appointed as provided in
this Section 10.8. Any successor so appointed by such court shall
immediately and without further act be superseded by any successor
Collateral Agent appointed by the Administrative Agent as provided
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herein. The Administrative Agent may, at any time upon giving 30 days'
prior written notice thereof to the Collateral Agent, remove the
Collateral Agent and appoint a successor Collateral Agent, such removal
to be effective upon the acceptance of such appointment by the
successor. The Collateral Agent shall be entitled to Collateral Agent
Fees to the extent incurred or arising, or relating to events occurring,
before such resignation or removal.
(b) If at any time the Collateral Agent shall resign or be
removed or otherwise become incapable of acting, or if at any time a
vacancy shall occur in the office of the Collateral Agent for any other
cause, a successor Collateral Agent may be appointed by the
Administrative Agent and the Grantor (acting in concert). The powers,
duties, authority and title of the predecessor Collateral Agent shall be
terminated and cancelled without procuring the resignation of such
predecessor and without any other formality (except as be required by
applicable law) than appointment and designation of a successor in
writing duly acknowledged and delivered to the predecessor and the
Grantor. Such appointment and designation shall be full evidence of the
right and authority to make the same and of all the facts therein
recited, and this Agreement shall vest in such successor, without any
further act, deed or conveyance, all the estates, properties, rights,
powers, duties, authority and title of its predecessor; but such
predecessor shall, nevertheless, on the written request of the
Administrative Agent, the Grantor, or the successor, execute and deliver
an instrument transferring to such successor all the estates,
properties, rights, powers, duties, authority and title of such
predecessor hereunder and shall deliver all Collateral held by it or its
agents to such successor. Should any deed, conveyance or other
instrument in writing from the Grantor be required by any successor
Collateral Agent for more fully and certain vesting in such successor
the estates, properties, rights, powers, duties, authority and title
vested or intended to be vested in the predecessor Collateral Agent, any
and all such deeds, conveyances and other instruments in writing shall,
on request of such successor, be executed, acknowledged and delivered by
the Grantor. If the Grantor shall not have executed and delivered any
such deed, conveyance or other instrument within 10 days after it
receives a written request from the successor Collateral Agent to do so,
or if an Event of Default shall have occurred and be continuing, the
predecessor Collateral Agent may execute the same on behalf of the
Grantor. The Grantor hereby appoints any predecessor Collateral Agent as
its agent and attorney to act of it as provided in the next preceding
sentence.
10.9 Status of Successor Collateral Agent. Every successor
Collateral Agent appointed pursuant to Section 10.8 shall be a bank or
trust company in good standing and having power to act as Collateral
Agent hereunder, incorporated under the laws of the United States of
America or any State thereof or the District of Columbia and having its
principal office within the 48 contiguous States and shall also have
capital, surplus and undivided profits of not less than $500,000,000, if
there be such an institution with such capital, surplus and undivided
profits willing, qualified and able to accept the powers and duties
hereunder upon reasonable or customary terms.
10.10 Merger of the Collateral Agent. Any corporation into which
the Collateral Agent may be merged, or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Collateral Agent shall be a party, shall be
the Collateral Agent under this Agreement without the execution or
filing of any paper or any further act on the part of the parties
hereto.
SECTION 11. ABSOLUTE OBLIGATIONS
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11.1 Absolute, etc. This Agreement shall in all respects be a
continuing, absolute, unconditional and irrevocable obligation, and
shall remain in full force and effect until all Secured Obligations have
been paid in full and all obligations of the Grantor hereunder shall
have been paid in full. The liability of the Grantor under this
Agreement shall be absolute, unconditional and irrevocable irrespective
of:
(a) any lack of validity, legality or enforceability of the
Credit Agreement or any other document delivered in connection therewith
(the "Loan Documents");
(b) the failure of the Administrative Agent or any Bank:
(i) to assert any claim or demand or to enforce any right or
remedy against any Borrower or any other Person under the provisions of the
Credit Agreement, any other Loan Document or otherwise; or
(ii) to exercise any right or remedy against any other guarantor
of, or collateral securing, any Secured Obligations;
(c) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Secured Obligations, or any other
extension, compromise or renewal of any Secured Obligations;
(d) any reduction, limitation, impairment or termination of the
Secured Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject
to (and the Grantor 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
Secured Obligations;
(e) any amendment to, rescission, waiver, or other modification
of, or any consent to any departure from, any of the terms of the Credit
Agreement 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 the
Agent or any Bank or any other holder of the Secured Obligations; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, a Borrower,
any surety or any guarantor.
11.2 Reinstatement, etc. The Grantor agrees that this Agreement
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 Secured
Obligations is rescinded or must otherwise be restored by the
Administrative Agent or any Bank or any other holder of any Secured
Obligations, upon the insolvency, bankruptcy or reorganization of any
Borrower, all as though such payment had not been made.
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11.3 Waiver, etc. The Grantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any
of the Secured Obligations, and this Agreement and any requirement that
the Collateral Agent, the Administrative Agent or any Bank or any other
holder of Secured Obligations 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 or any other Person
(including any other guarantor) or entity or any collateral securing the
Secured Obligations.
11.4 Waiver of Subrogation; Subordination. The Grantor hereby
irrevocably waives with respect to any Borrower, until the prior
indefeasible payment in full in cash of all Secured Obligations, any
claim or other rights which it may now or hereafter acquire against any
Borrower that arises from the existence, payment, performance or
enforcement of the Grantor's obligations hereunder, including any right
of subrogation, reimbursement, exoneration, or indemnification, any
right to participate in any claim or remedy of the Banks and the
Administrative Agent against any Borrower or any collateral which the
Collateral 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 any Borrower, 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 the Grantor in
violation of the preceding sentence and the Secured Obligations shall
not have been paid in cash, in full, such amount shall be deemed to have
been paid to the Grantor for the benefit of, and held in trust for, the
Banks and the Administrative Agent, and shall forthwith be paid to the
Banks and Administrative Agent to be credited and applied upon the
Secured Obligations, whether matured or unmatured. The Grantor
acknowledges that it will receive direct and indirect benefits from the
Amendment and that the waiver set forth in this Section 11.4 is
knowingly made in contemplation of such benefits.
SECTION 12. MISCELLANEOUS
12.1 Amendments. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified
except in a writing signed by the parties hereto.
12.2 Notices. All notices, requests and demands to or upon the
Collateral Agent or the Grantor hereunder shall be effected in the
manner provided for in the Credit Agreement; provided that any such
notice, request or demand to or upon the Grantor shall be addressed to
the Grantor at its notice address set forth on Schedule I and that any
such notice, request or demand to or upon the Collateral Agent shall be
addressed to the Collateral Agent at its notice address set forth in
Schedule I.
12.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither
the Collateral Agent nor any other Secured Party shall by any act
(except by a written instrument), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to
have acquiesced in any Event of Default. No failure to exercise, nor any
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delay in exercising, on the part of the Collateral Agent or any other
Secured Party, any right, power or privilege hereunder shall operate as
a waiver thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. A waiver by the
Collateral Agent or any other Secured Party of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Collateral Agent or such Secured Party would
otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
12.4 Successors and Assigns. This Agreement shall be binding upon
the successors and assigns of the Grantor and shall inure to the benefit
of the Collateral Agent and the other Secured Parties and their
successors and assigns; provided that the Grantor may not assign,
transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Collateral Agent.
12.5 Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
12.6 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
12.7 Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the
interpretation hereof.
12.8 Integration. This Agreement represent the agreement of the
Grantor, the Collateral Agent and the other Secured Parties with respect
to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Collateral Agent or
any other Secured Party relative to subject matter hereof and thereof
not expressly set forth or referred to herein.
12.9 Depository Bank's Location. New York shall be deemed to be
the Depository Bank's location for the purposes of this Agreement and
the perfection and priority of the Collateral Agent's security interest
in the Cash Collateral Account.
12.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
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IN WITNESS WHEREOF, each of the undersigned has caused this Cash
Collateral Pledge Agreement to be duly executed and delivered as of the date
first above written.
CDOC, INC.
By: /s/
-------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as Depositary Bank
By: /s/
-------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as Collateral Agent
By: /s/
-------------------------------------
Name:
Title: