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BORROWER PLEDGE AGREEMENT
dated as of September 15, 1999
among
THE INDIVIDUALS LISTED ON THE SIGNATURE PAGES HERETO
and
THE CHASE MANHATTAN BANK
as Administrative Agent
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BORROWER PLEDGE AGREEMENT
THIS BORROWER PLEDGE AGREEMENT (this "Agreement"), dated as of
September 15, 1999, is made among the individuals listed as pledgors on the
signature pages hereto (herein, collectively called the "Pledgors" and each
individually, a "Pledgor"), and THE CHASE MANHATTAN BANK, as Administrative
Agent for the Banks (each as hereinafter defined). This is the Borrower Pledge
Agreement referred to in that certain Credit Agreement (as from time to time, in
whole or in part, amended, modified, supplemented, restated, refinanced,
refunded or renewed, the "Credit Agreement"), dated as of September 15, 1999,
among the Pledgors, the financial institutions who are or from time to time
become party thereto (the "Banks") and The Chase Manhattan Bank, as
Administrative Agent for the Banks (the "Administrative Agent").
BACKGROUND:
1. Pursuant to the terms of the Credit Agreement, the Banks have agreed
to make certain Loans to each Pledgor which shall be used by such Pledgor as
provided in the Credit Agreement.
2. As security for the Loans and as a condition precedent to the making
thereof, the Banks have required that each Pledgor execute and deliver this
Agreement.
NOW, THEREFORE, in consideration of any Loan or other financial
accommodation heretofore or hereafter at any time made or granted by the Banks
to the Pledgors and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Pledgor agrees with the
Administrative Agent, for the benefit of the Banks, as follows:
SECTION 1. Definitions. Capitalized terms used herein, unless otherwise
specified, shall have the meanings assigned thereto in the Credit Agreement;
provided that such definitions shall survive any termination of the Credit
Agreement. In addition, when used herein the following terms shall have the
following meanings:
"Collateral" - see Section 2.
"Indemnified Liabilities" - see Section 7(b)(vi).
"Issuer" shall mean Conseco, Inc., an Indiana corporation.
"Permitted Actions" - see Section 5(b).
"Pledged Shares" - see Section 2.
"Uniform Commercial Code" shall mean the Uniform Commercial Code or
comparable statute, as in effect from time to time in the relevant jurisdiction.
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SECTION 2. Pledge. To secure the prompt and complete payment and
performance of the respective Liabilities of each such Pledgor, such Pledgor
hereby grants, pledges, hypothecates, assigns, transfers, sets over and delivers
unto the Administrative Agent, for the benefit of the Banks, a Lien on the
following (herein collectively called the "Collateral"):
(a) the shares of capital stock of the Issuer described in Schedule
1 hereto, whether in certificated form or otherwise, including the
certificates representing or evidencing such shares of capital stock
(herein called the "Pledged Shares"), together with all cash, securities,
interests, dividends, rights, notes, instruments and other property from
time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of such Pledged Shares;
(b) all additional shares of capital stock of the Issuer from time to
time acquired by the Pledgor and purchased with proceeds of the Loans
including, without limitation, any uncertificated Securities (which
additional shares of capital stock shall constitute a part of, and be,
Pledged Shares ), and, in the case of certificated capital stock of the
Issuer, the certificates representing or evidencing such additional shares,
together with all cash, securities, interest, dividends, rights, notes,
instruments and other property at any time and from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of such additional shares;
(c) all other property hereafter delivered to the Administrative Agent
in substitution for or in addition to any of the foregoing, and all
certificates and instruments representing or evidencing such other
property, together with all cash, securities, interest, dividends, rights
and other property at any time and from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all
thereof; and
(d) all proceeds, rents, issues, profits and returns of and from all of
the foregoing;
TO HAVE AND TO HOLD the Collateral, together with all rights, titles, interests,
privileges and preferences appertaining or incidental thereto, unto the
Administrative Agent, its successors and assigns, for the benefit of the Banks,
forever; subject, however, to the terms, covenants and conditions hereafter set
forth.
Each Pledgor agrees to deliver to the Administrative Agent, promptly
upon receipt and in the case of the Pledged Shares in due form for transfer
(i.e., endorsed in blank accompanied by undated stock or bond powers executed in
blank or registered on the books of the Issuer) and, subject to the provisions
of Section 6 hereof, any Collateral which may at any time or from time to
time be in or come into possession or control of any Pledgor; and prior to the
delivery thereof to the Administrative Agent, such Collateral shall be held by
such Pledgor separate and apart from its other property and in express trust for
the Administrative Agent, for the benefit of the Banks.
SECTION 3. Representations, Warranties and Covenants.
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(a) Each Pledgor represents and warrants to the Administrative Agent,
for the benefit of the Banks, that: (i) except for Liens, claims and rights of
third parties arising solely through acts of the Administrative Agent, the
Administrative Agent has and will continue to have at all times as security for
the Liabilities of such Pledgor, for the benefit of the Banks, a valid, first
priority perfected Lien on the Collateral pledged by such Pledgor and the
proceeds thereof free of all Liens (except for the Lien granted hereunder),
claims and rights of third parties whatsoever; (ii) all of the Pledged Shares of
such Pledgor representing shares of stock pledged under this Agreement are
evidenced by certificates, and such Pledgor has delivered to the Administrative
Agent, for the benefit of the Banks, for pledge under this Agreement on the date
hereof all of the certificates representing all such Pledged Shares; (iii) the
Pledged Shares of such Pledgor represent and will continue to represent all of
the issued and outstanding capital stock of the Issuer purchased with proceeds
of the Loans made to such Pledgor; and (iv) such Pledgor will, at all times,
keep pledged to the Administrative Agent, for the benefit of the Banks, pursuant
hereto all of the capital stock of the Issuer of such Pledgor purchased with
proceeds of the Loans made to such Pledgor.
Each Pledgor agrees to endorse and deliver to the Administrative Agent
for pledge hereunder, promptly upon its obtaining any thereof, any additional
Collateral and to hold such Collateral, pending such delivery, in trust for the
Administrative Agent, for the benefit of the Banks, separate and distinct from
any other property of such Pledgor. As of the date of any such delivery of
additional Collateral, certificates or instruments to the Administrative Agent,
such Pledgor represents and warrants that (1) it will own such Collateral,
certificates and instruments free and clear of any rights of any other Person
(other than the rights created in the Administrative Agent hereunder), (2) it
will have good and marketable title to said Collateral, certificates and
instruments and have the right to pledge such Collateral, certificates and
instruments to the Administrative Agent, for the benefit of the Banks, pursuant
to this Agreement, and (3) it will have pledged to the Administrative Agent, for
the benefit of the Banks, as at such date, all of the capital stock of the
Issuer purchased with proceeds of the Loans made to such Pledgor. By the
delivery of any additional Collateral, certificates or instruments, such Pledgor
shall automatically be deemed to have represented and warranted to the
Administrative Agent, for the benefit of the Banks, that at the time of such
delivery the Administrative Agent, for the benefit of the Banks, has a valid,
first priority perfected Lien on such Collateral, certificates or instruments
and the proceeds thereof free of all Liens, claims and rights of third parties
whatsoever. All documentary, stamp and other taxes and fees owing in connection
with the issuance, transfer and/or pledge of the Pledged Shares of such Pledgor,
certificates or instruments have been paid and will hereafter be paid by such
Pledgor as such become due and payable.
(b) Each Pledgor further represents and warrants to the Administrative
Agent, for the benefit of the Banks, that it is the lawful owner of the
Collateral pledged by such Pledgor, free of all Liens, other than the Lien
granted hereunder, with full right to deliver, pledge, assign and transfer such
Collateral to the Administrative Agent, for the benefit of the Banks, as
Collateral hereunder. The pledge of the Collateral of such Pledgor effected by
effective to vest in the Administrative Agent, for the benefit of the Banks, the
rights of the Administrative Agent in such Collateral set forth herein.
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(c) Each Pledgor additionally represents and warrants to the
Administrative Agent, for the benefit of the Banks, that (i) such Pledgor has
received all material consents and approvals (if any shall be required)
necessary for the execution, delivery and performance of this Agreement, and
such execution, delivery and performance does not and will not contravene or
conflict with, result in any breach of, or constitute a default under, any
material agreement or instrument binding on such Pledgor or result in the
creation or imposition of or the obligation to create or impose any Lien (except
for the Lien granted hereunder) on any of the Collateral pledged by such Pledgor
and (ii) this Agreement is the legal, valid and binding obligation of such
Pledgor, enforceable against such Pledgor in accordance with its terms, except
to the extent such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws affecting the enforcement of creditors' rights generally and by the effect
of general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity (including, without limitation, good faith,
materiality and reasonableness) or at law).
(d) Each Pledgor additionally covenants and agrees with the
Administrative Agent, for the benefit of the Banks, that, until the expiration
or termination of the Commitments as to such Pledgor and thereafter so long as
any of the Liabilities of such Pledgor remain outstanding, such Pledgor will,
unless the Administrative Agent and the Required Banks, for the benefit of the
Banks, shall otherwise consent in writing:
(i) at such Pledgor's sole expense, promptly deliver to the
Administrative Agent, from time to time, upon request of the Administrative
Agent or the Required Banks, such stock powers and other documents
(including UCC financing statements), satisfactory in form and substance to
the Administrative Agent, with respect to the Collateral pledged by such
Pledgor as the Administrative Agent or the Required Banks may reasonably
request, to perfect, preserve and protect the Lien created hereby, and to
enable the Administrative Agent to enforce its rights and remedies
hereunder;
(ii) not permit any of the Collateral pledged by such Pledgor to be
evidenced by uncertificated securities, provided, however, that should for
whatsoever reason any of such Collateral become evidenced by uncertificated
Securities, such Pledgor shall automatically, without request by the
Administrative Agent, forthwith (A) notify the Administrative Agent
thereof, (B) cause the books and records of the Issuer to contain a
notation of the Lien of the Administrative Agent, for the benefit of the
Banks, thereon, and (C) take such other action as the Administrative Agent
shall reasonably request so that the Administrative Agent shall have at all
times as security for the Liabilities of such Pledgor, for the benefit of
the Banks, a valid, first priority perfected Lien on the Collateral pledged
by such Pledgor and the proceeds thereof free of all Liens (except for the
Lien granted hereunder), claims and rights of third parties whatsoever; and
(iii) except as otherwise may be permitted by the Credit Agreement, (A)
not sell, assign, exchange, pledge or otherwise dispose of or transfer any
of its rights to any of the
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Collateral pledged by such Pledgor, (B) not create or suffer to exist any
Lien on or with respect to any of such Collateral except for the Lien
created hereby, (C) not make or consent to any amendment or other
modification or waiver with respect to any of such Collateral, or enter
into any agreement or permit to exist any restriction with respect to any
of such Collateral other than pursuant hereto, and (D) not take or fail to
take any action which would in any manner impair the enforceability of the
Administrative Agent's Lien, for the benefit of the Banks, on any of such
Collateral.
SECTION 4. Care of Collateral. The Administrative Agent shall exercise
reasonable care in the custody and preservation of the Collateral. In addition,
the Administrative Agent shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral pledged by any Pledgor if it
takes such action for that purpose as such Pledgor requests in writing, but
failure of the Administrative Agent to comply with any such request shall not of
itself be deemed a failure to exercise reasonable care, and no failure of the
Administrative Agent to preserve or protect any rights with respect to such
Collateral against prior or other parties, or to do any act with respect to
preservation of such Collateral not so requested by the Pledgor, shall be deemed
a failure to exercise reasonable care in the custody or preservation of such
Collateral.
SECTION 5. Certain Rights Regarding Collateral and Liabilities.
(a) Subject to Sections 5(c) and 6 hereof the Administrative Agent may,
and upon the request of the Required Banks shall, from time to time, after the
occurrence and during the continuance of a Default pursuant to Section 10.1.2 of
the Credit Agreement as a Pledgor or an Event of Default as to such Pledgor,
without notice to such Pledgor, (i) transfer all or any part of the Collateral
pledged by such Pledgor into the name of the Administrative Agent or its nominee
or subagent, with or without disclosing that such Collateral is subject to the
Lien hereunder, (ii) notify any Person obligated on any of the Collateral of
such Pledgor to make payment to the Administrative Agent of any amounts due or
to become due thereunder, and (iii) enforce collection of any of the Collateral
pledged by such Pledgor by suit or otherwise.
(b) If at any time the Administrative Agent takes any or all of the
Permitted Actions (as hereinafter defined) whether such actions are taken before
or after any of the Liabilities of such Pledgor shall be due and payable and
without notice to such Pledgor, such actions shall not affect the enforceability
of this Agreement. The Administrative Agent shall have taken a "Permitted
Action" if it shall (to the extent permitted by the Credit Agreement and the
other Loan Documents): (i) retain or obtain a Lien upon any property to secure
payment and performance of any of the Liabilities or any obligation hereunder,
(ii) retain, obtain or release the primary or secondary obligation of any
Person, in addition to such Pledgor, with respect to one or more of the
Liabilities, (iii) create, extend or renew for any periods (whether or not
longer than the original period) or alter or exchange any of the Liabilities, or
release or compromise any obligation of any nature of any Person with respect to
any of the Liabilities, (iv) release or fail to perfect its Lien upon, or
impair, surrender, release or permit any
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substitution or exchange for, all or any part of any property securing any of
the Liabilities or any obligation hereunder, or create, extend or renew for one
or more periods (whether or not longer than the original period) or release,
compromise, alter or exchange any obligations of any nature of any Person with
respect to any such property or (v) resort to the Collateral pledged by such
Pledgor for payment of any of the Liabilities of such Pledgor whether or not the
Administrative Agent (A) shall have resorted to any other property securing any
of the Liabilities of such Pledgor or any obligation hereunder or (B) shall have
proceeded against any Person primarily or secondarily obligated with respect to
any of the Liabilities of such Pledgor (all of the actions referred to in
preceding clauses (A) and (B) being hereby expressly waived by each Pledgor).
(c) The Administrative Agent shall have no right to vote the Pledged
Shares or other Collateral of any Pledgor or give consents, waivers or
ratifications in respect thereof prior to the occurrence and during the
continuance of a Default pursuant to Section 10.1.2 of the Credit Agreement as
to such Pledgor or an Event of Default as to such Pledgor. After the occurrence
and during the continuance of a Default pursuant to Section 10.1.2 of the Credit
Agreement as to such Pledgor or an Event of Default as to such Pledgor, such
Pledgor shall have the right to vote any and all of the Pledged Shares and other
Collateral of such Pledgor and give consents, waivers and ratifications in
respect thereof unless and until it receives notice from the Administrative
Agent that such right has been terminated. Each Pledgor agrees to deliver
(properly endorsed when required) to the Administrative Agent, after a Default
pursuant to Section 10.1.2 of the Credit Agreement as to such Pledgor or an
Event of Default as to such Pledgor shall have occurred and shall be continuing,
promptly upon request of the Administrative Agent, such proxies and other
documents as may be necessary for the Administrative Agent to exercise the
voting power with respect to the Pledged Shares and other Collateral of such
Pledgor then or previously owned by such Pledgor.
SECTION 6. Dividends, etc.
(a) So long as no Default pursuant to Section 10.1.2 of the Credit
Agreement as to a particular Pledgor or an Event of Default as to such Pledgor
shall have occurred and shall be continuing:
(i) Subject to the provisions of the Credit Agreement and
notwithstanding the provisions of Section 2(a) of this Agreement, such
Pledgor shall be entitled to receive any and all cash dividends and
payments on the Collateral pledged by such Pledgor which it is otherwise
entitled to receive, but any and all capital stock and/or liquidating
dividends, payments, distributions in property, returns of capital made on
or in respect of the Collateral pledged by such Pledgor, whether resulting
from a subdivision, combination, reclassification or conversion of the
outstanding capital stock of the Issuer, or received in exchange for such
Collateral or any part thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which the Issuer
may be a party or otherwise, and any and all cash and other property
received in exchange for such Collateral shall be and become part of the
Collateral pledged hereunder and, if received by such Pledgor, shall
forthwith be delivered to the Administrative Agent or its designated
nominee (accompanied, if appropriate, by proper instruments of
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assignment and/or stock powers executed by such Pledgor in accordance with
the Administrative Agent's instructions) to be held subject to the terms of
this Agreement.
(ii) If the Collateral pledged by any Pledgor or any part thereof shall
have been registered in the name of the Administrative Agent or its
subagent, the Administrative Agent shall execute and deliver (or cause to
be executed and delivered) to such Pledgor all such dividend orders and
other instruments as such Pledgor may request for the purpose of enabling
such Pledgor to receive the dividends or other payments which it is
authorized to receive and retain pursuant to Section 6(a)(i) above.
(b) Upon the occurrence and during the continuance of a Default
pursuant to Section 10.1.2 of the Credit Agreement as to Pledgor or an Event of
Default as to such Pledgor, all rights of such Pledgor pursuant to Section
6(a)(i) hereof shall cease and the Administrative Agent shall have the sole and
exclusive right and authority to receive and retain the dividends and other
payments in respect of the Collateral which such Pledgor would otherwise be
authorized to retain. All such dividends and payments, and all other
distributions made on or in respect of the Collateral which may at any time and
from time to time be held by such Pledgor, shall, until delivery to the
Administrative Agent, be held by such Pledgor separate and apart from its other
property in trust for the Administrative Agent, for the benefit of the Banks.
Any and all money and other property paid over to or received by the
Administrative Agent pursuant to the provisions of this paragraph (b) shall be
retained by the Administrative Agent as additional Collateral hereunder and be
applied in accordance with the provisions hereof and until delivery to the
Administrative Agent, shall be held by such Pledgor separate and apart from its
other property in trust for the Administrative Agent, for the benefit of the
Banks.
SECTION 7. Default.
(a) Upon the occurrence and during the continuance of a Default
pursuant to Section 10.1.2 of the Credit Agreement as to Pledgor or an Event of
Default as to such Pledgor, the Administrative Agent may exercise from time to
time any rights and remedies available to it under the Credit Agreement, the
Uniform Commercial Code or the other Loan Documents or otherwise available to
it, including, without limitation, sale, assignment, or other disposal of the
Collateral pledged by such Pledgor in exchange for cash or credit. If any
notification of intended disposition of any of such Collateral is required by
law, such notification, if mailed, shall be deemed reasonably and properly given
if mailed to such Pledgor at least ten (10) days before such disposition as
provided in Section 13.3 of the Credit Agreement. Any proceeds of any
disposition of Collateral pledged by such Pledgor shall be applied as provided
in Section 8 hereof. No rights and remedies of the Administrative Agent
expressed hereunder are intended to be exclusive of any other right or remedy,
but every such right or remedy shall be cumulative and shall be in addition to
all other rights and remedies herein conferred, or conferred upon the
Administrative Agent under any other agreement or instrument relating to any of
the Liabilities of such Pledgor or security therefor or now or hereafter
existing at law or in equity or by statute. No delay on the part of the
Administrative Agent in the exercise of any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by the Administrative Agent of
any right or
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remedy shall preclude any other or further exercise thereof or the exercise of
any other right or remedy.
(b)(i) Each Pledgor agrees that in any sale of any of the Collateral
pledged by such Pledgor, the Administrative Agent is authorized to comply with
any limitation or restriction in connection with such sale as counsel may advise
the Administrative Agent is necessary in order to avoid any violation of
applicable law (including, without limitation, compliance with such procedures
as may restrict the number of prospective bidders and purchasers, require that
such prospective bidders and purchasers have certain qualifications, and
restrict such prospective bidders and purchasers to persons who will represent
and agree that they are purchasing for their own account for investment and not
with a view to the distribution or resale of such Collateral), or in order to
obtain any required approval of the sale or of the purchaser by any governmental
regulatory authority or official, and such Pledgor further agrees that such
compliance shall not result in such sale being considered or deemed not to have
been made in a commercially reasonable manner, nor shall the Administrative
Agent nor any Bank be liable or accountable to such Pledgor for any discount
allowed by reason of the fact that such Collateral is sold in compliance with
any such limitation or restriction.
(ii) Each Pledgor, upon the occurrence and during the continuance of a
Default under Section 10.1.2 of the Credit Agreement as to such Pledgor or an
Event of Default as to such Pledgor, further agrees that the Administrative
Agent shall have the right, for and in the name, place and stead of such Pledgor
to execute endorsements, assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of the Collateral pledged by
such Pledgor, and may, without demand, presentment or notice of any kind
appropriate and apply toward the payment of the Liabilities of such Pledgor in
order of application set forth in Section 8 any balances, credits, deposits,
accounts or monies of such Pledgor held by the Administrative Agent.
(iii) Without limiting the foregoing paragraph, upon the occurrence and
during the continuance of a Default pursuant to Section 10.1.2 of the Credit
Agreement as to such Pledgor or an Event of Default as to such Pledgor, the
Administrative Agent may, to the fullest extent permitted by applicable law,
without notice, advertisement, hearing or process of law of any kind, (A) sell
any or all of the Collateral, free of all rights and claims of such Pledgor
therein and thereto at any public or private sale or brokers' board, and (B) bid
for and purchase any or all of such Collateral at any such public sale free from
rights of redemption, stay or appraisal of such Pledgor.
SECTION 8. Application of Proceeds. All of the proceeds from the sale
or disposition of any item of the Collateral pledged by the Pledgors pursuant to
the terms of Section 7 hereof and/or, after a Default pursuant to Section 10.1.2
of the Credit Agreement as to such Pledgor or an Event of Default as to such
Pledgor, the cash held as Collateral hereunder, shall be applied by the
Administrative Agent pursuant to Section 6.2(a) of the Credit Agreement.
SECTION 9. Authority of the Administrative Agent. The Administrative
Agent shall have, and be entitled to exercise, all such powers hereunder (to the
extent permitted by the Credit
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Agreement) as are specifically delegated to the Administrative Agent by the
terms hereof, together with such powers as are incidental thereto, for the
benefit of the Banks. As to matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of this Agreement) the
Administrative Agent shall not be required to exercise any discretion, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Banks
and such instructions shall be binding upon all Banks. The Administrative Agent
may execute any of its duties hereunder by or through agents or employees and
shall be entitled to retain counsel and to act in reliance upon the reasonable
advice of such counsel concerning all matters pertaining to its duties
hereunder. Neither the Administrative Agent, the Banks nor any director, officer
or employee thereof shall be liable for any action taken or omitted to be taken
by it hereunder or in connection herewith, except for its own gross negligence
or willful misconduct. Without limiting the generality of the foregoing, the
Administrative Agent shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other Loan Document or other support or security (including the
validity, priority or perfection of any Lien), or any other document furnished
in connection with any of the foregoing; provided that notwithstanding the
foregoing, the Administrative Agent shall comply with Section 4. Each Pledgor
agrees to reimburse the Administrative Agent, on demand, for all reasonable
costs and expenses actually incurred by the Administrative Agent in connection
with the administration and enforcement of this Agreement and for all costs and
expenses of the enforcement of this Agreement (including, without limitation,
reasonable costs and expenses actually incurred by any agent employed by the
Administrative Agent) and agrees to indemnify (which indemnification shall
survive any termination of this Agreement) and hold harmless the Administrative
Agent and the Banks (and any such agent) from and against any and all liability
incurred by the Administrative Agent or any Bank or any such agent thereof
hereunder or in connection herewith, unless such liability shall be due to gross
negligence or willful misconduct on the part of the Administrative Agent or any
Bank or such agent, as the case may be.
SECTION 10. Termination. Each Pledgor agrees that its pledge hereunder
shall (notwithstanding, without limitation, that at any time or from time to
time all Liabilities of such Pledgor may have been paid in full) terminate only
when all such Liabilities (except such Liabilities which by the terms of the
Credit Agreement survive the payment in full of the Loans and the termination of
this Agreement) (including, without limitation, any extensions or renewals of
any thereof) and all expenses (including, without limitation, reasonable
attorneys' fees and legal expenses) paid or actually incurred by the
Administrative Agent in endeavoring to enforce this Agreement, the Credit
Agreement and the other Loan Documents to which the Administrative Agent is a
party or of which it is a beneficiary shall have been finally paid in full and
all other obligations of such Pledgor hereunder and thereunder have been fully
performed, and all Commitments under the Credit Agreement have been terminated,
at which time the Administrative Agent shall reassign and redeliver (or cause to
be reassigned and redelivered) to such Pledgor, or to such Person or Persons as
such Pledgor shall designate, such of the Collateral (if any) as shall not have
been sold or otherwise applied by the Administrative Agent pursuant to the terms
hereof and shall still be held by it hereunder, together with appropriate
instruments of reassignment and
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release. Any such reassignment shall be without recourse upon, or representation
or warranty by, the Administrative Agent or any Bank and at the sole cost and
expense of such Pledgor.
SECTION 11. Miscellaneous.
(a) All notices or other communications hereunder shall be given in the
manner specified under Section 13.3 of the Credit Agreement, whether or not then
in effect.
(b) This Agreement, and the terms, covenants and conditions hereof,
shall be binding upon and inure to the benefit of the parties hereto, and their
respective successors and assigns, except the Pledgors shall not be permitted to
assign this Agreement nor any interest herein nor in the Collateral pledged by
such Pledgor, nor any part thereof, nor otherwise pledge, encumber or grant any
option with respect to such Collateral, nor any part thereof, except in
accordance with the terms of the Credit Agreement.
(c) SUBMISSION TO JURISDICTION; WAIVER OF VENUE. EACH PLEDGOR AND THE
ADMINISTRATIVE AGENT HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION
OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF
THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK OVER ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS, AND EACH PLEDGOR AND THE ADMINISTRATIVE AGENT HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, FEDERAL
COURT. EACH PLEDGOR AND THE ADMINISTRATIVE AGENT HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE IN ANY ACTION OR PROCEEDING (WHETHER BROUGHT BY ANY
PLEDGOR, THE ADMINISTRATIVE AGENT, ANY BANK OR OTHERWISE) IN ANY COURT
HEREINABOVE SPECIFIED IN THIS SECTION 11(c) AS WELL AS ANY RIGHT IT MAY NOW OR
HEREAFTER HAVE TO REMOVE ANY SUCH ACTION OR PROCEEDING, ONCE COMMENCED, TO
ANOTHER COURT ON THE GROUNDS OF FORUM NON CONVENIENS OR OTHERWISE. EACH PLEDGOR
AND THE ADMINISTRATIVE AGENT AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
(d) At the option of the Administrative Agent, this Agreement, or a
carbon, photographic or other reproduction of this Agreement or of any Uniform
Commercial Code financing
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statement covering the Collateral or any portion thereof, shall be sufficient as
a Uniform Commercial Code financing statement and may be filed as such.
(e) Subject to Section 13.1 of the Credit Agreement, the provisions of
this Agreement may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to by the Pledgors
and by the Administrative Agent (at the request of the Required Banks), and then
any such amendment, modification, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
(f) The section headings in this Agreement are inserted for convenience
of reference and shall not be considered a part of this Agreement or used in its
interpretation.
(g) Each Pledgor hereby expressly waives: (i) notice of the acceptance
by the Administrative Agent of this Agreement, (ii) notice of the existence or
creation or nonpayment of all or any of the Liabilities of such Pledgor, (iii)
presentment, demand, notice of dishonor, protest, and all other notices
whatsoever (except as otherwise required herein), and (iv) all diligence in
collection or protection of or realization upon the Liabilities of such Pledgor,
or any security for or guaranty of any of the foregoing.
(h) The Administrative Agent may, from time to time, without notice to
any Pledgor, assign or transfer any or all of the Liabilities of such Pledgor or
any interest therein; and, notwithstanding any such assignment or transfer or
any subsequent assignment or transfer thereof, such Liabilities shall be and
remain Liabilities of such Pledgor for the purposes of this Agreement, and each
and every immediate and successive assignee or transferee of any of such
Liabilities or of any interest therein shall, to the extent of the interest of
such assignee or transferee in such Liabilities, be entitled to the benefits of
this Agreement to the same extent as if such assignee or transferee were the
Administrative Agent; provided, however, that, unless the Administrative Agent
shall otherwise consent in writing, the Administrative Agent shall have an
unimpaired right, prior and superior to that of any such assignee or transferee,
to enforce this Agreement, for the benefit of the Administrative Agent, as to
those of the Liabilities which the Administrative Agent has not assigned or
transferred.
(i) Each Pledgor agrees that, if at any time all or any part of any
payment theretofore applied by the Administrative Agent or any Bank to any of
the Liabilities of such Pledgor is or must be rescinded or returned by the
Administrative Agent or any Bank for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of the Issuer), such
Liabilities shall, for the purposes of this Agreement, to the extent that such
payment is or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Administrative Agent, and the
pledge by such Pledgor hereunder shall continue to be effective or be
reinstated, as the case may be, as to such Liabilities, all as though such
application by the Administrative Agent or such Bank had not been made.
11
(j) No action of the Administrative Agent permitted hereunder shall in
any way affect or impair the rights of the Administrative Agent and the
obligations of any Pledgor under this Agreement. Each Pledgor hereby
acknowledges that there are no conditions to the effectiveness of this
Agreement.
(k) All obligations of the Pledgors and rights of the Administrative
Agent or obligation expressed in this Agreement shall be in addition to and not
in limitation of those provided in applicable law or in any other written
instrument or agreement relating to any of the Liabilities.
(l) GOVERNING LAW. THIS AGREEMENT SHALL BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(m) This Agreement may be executed in any number of counterparts, each
of which shall for all purposes be deemed an original, but all such counterparts
shall constitute but one and the same agreement. Each Pledgor hereby
acknowledges receipt of a true, correct and complete counterpart of this
Agreement.
(n) The Administrative Agent acts herein as agent for itself, the Banks
and any and all future holders of the Liabilities.
(o) WAIVER OF JURY TRIAL. EACH PLEDGOR AND THE ADMINISTRATIVE AGENT
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT DELIVERED
OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR
ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS
AGREEMENT, AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY; THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
(p) Each Pledgor agrees that the Administrative Agent may amend and
replace Schedule 1 to this Agreement from time to time to reflect the purchase
and pledge of Additional Pledged Shares hereunder without any further action on
the part of any Pledgor and amend and file financing statements to reflect the
amendments to Schedule 1 from time to time.
* * *
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first above written.
PLEDGORS:
XXXXXX X. XXXXXXX IRREVOCABLE TRUST
(By: Xxxxxxx X. Xxxxxxx, as Trustee)
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
MARYJOSC, LP
(By: Xxxxxx X. Xxxx, General Partner)
/s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Xxxx X. Xxxx
/s/ Xxxx X. Xxxx
-------------------------------------
Name: Xxxx X. Xxxx
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
XXXXX X. XXXXXXXXXX
/s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
XXXXXX X. XXXXXX, XX.
/s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
DPM, LTD
(By: Xxxxxx X. Xxxxxx Xx. and
Xxxxxxxx X. Xxxxxx, General Partner
/s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
XXXXX X. DECATUR
/s/ Xxxxx X. Decatur
-------------------------------------
Name: Xxxxx X. Decatur
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
XXXXXXXX X. XXXX
/s/ Xxxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxx
XXXX X. XXXX
/s/ Xxxx X. Xxxx
-------------------------------------
Name: Xxxx X. Xxxx
M. XXXX XXXXXXXX
/s/ M. Xxxx Xxxxxxxx
-------------------------------------
Name: M. Xxxx Xxxxxxxx
SCHEDULE I
LISTING OF STOCK PLEDGED
Number of
Borrower Certificate No. Shares
-------- --------------- ---------
