EXHIBIT 4.2.2
[EXECUTION COPY]
AMENDED AND RESTATED PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT dated as of November 24, 1992,
amended and restated as of March 27, 1998 (the "RESTATEMENT DATE"), between
ENHANCE FINANCIAL SERVICES GROUP INC., a corporation duly organized and validly
existing under the laws of the State of New York (the "COMPANY"); and THE CHASE
MANHATTAN BANK, as agent for the Secured Creditors (as defined below) (in such
capacity, together with its successors in such capacity, the "COLLATERAL
AGENT").
The Company and the Administrative Agent (as defined in the Credit
Agreement referred to below) are parties to a Pledge Agreement dated as of
November 24, 1992, amended by Amendment No. 1 dated as of September 30, 1996 (as
modified and supplemented and in effect immediately prior to the Restatement
Date, the "EXISTING PLEDGE AGREEMENT"), pursuant to which the Company has
pledged and granted a security interest in, INTER ALIA, certain shares of stock.
The Company, certain Banks and the Administrative Agent are parties to
an Amended and Restated Credit Agreement dated as of November 24, 1992, amended
and restated as of October 1, 1996, amended by a letter agreement dated April 2,
1997, further amended by Amendment No. 1 dated as of December 31, 1997 and
further amended by Amendment No. 2 dated as of the Restatement Date (the "CREDIT
AGREEMENT").
The Company is also party to an Indenture with The Chase Manhattan
Bank (the "INDENTURE TRUSTEE") dated as of March 5, 1993 (as modified and
supplemented and in effect from time to time, the "INDENTURE"), providing,
subject to the terms and conditions thereof, for the issuance from time to time
of its debentures, notes or other evidences of indebtedness.
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company has agreed to amend and restate the
Existing Pledge Agreement. Accordingly, the parties hereto agree to amend and
restate the Existing Pledge Agreement so that, as amended and restated, it reads
in its entirety as herein provided.
Section 1. DEFINITIONS. Terms defined in the Credit Agreement are
used herein as defined therein. In addition, as used herein:
"COLLATERAL" shall have the meaning ascribed thereto in Section 3
hereof.
"COLLATERAL ACCOUNT" shall have the meaning ascribed thereto in
Section 4.01 hereof.
"CREDIT AGREEMENT OBLIGATIONS" shall mean, together, (a) the principal
of and interest on the Loans made by the Banks and the Swingline Bank to,
and the Note(s) held by each Bank and the Swingline Bank of, the
Company, (b) all other amounts from time to time payable by the Company
to the Banks, the Swingline Bank and the Administrative Agent under the
Credit Agreement and (c) all obligations hereunder of the Company to the
Banks, the Swingline Bank and the Administrative Agent.
"DEBENTURES" shall mean the debentures issued by the Company under the
Indenture before the Restatement Date in any aggregate principal amount not
in excess of $75,000,000.
"DEBENTURE ACCELERATION EVENT" shall mean the declaration of the
principal of the Debentures to be due and payable in accordance with
Section 502 of the Indenture, which declaration shall not have been
rescinded or annulled.
"DEBENTURE OBLIGATIONS" shall mean the obligations of the Company to
pay the principal of, premium (if any) on and interest on the Debentures
issued under, and all other amounts from time to time payable by the
Company under, the Indenture.
"ISSUER" shall mean the issuer of any Pledged Stock.
"PERMITTED INVESTMENTS" shall mean: (a) direct obligations of the
United States of America, or of any agency thereof, or obligations
guaranteed as to principal and interest by the United States of America, or
of any agency thereof, in either case maturing not more than 90 days from
the date of acquisition thereof; (b) certificates of deposit issued by any
bank or trust company organized under the laws of the United States of
America or any state thereof and having capital, surplus and undivided
profits of at least $500,000,000, maturing not more than 90 days from the
date of acquisition thereof; and (c) commercial paper rated A-1 or better
or P-1 or better by Standard & Poor's Corporation or Xxxxx'x Investors
Services, Inc., respectively, maturing not more than 90 days from the date
of acquisition thereof.
"PLEDGED STOCK" shall have the meaning ascribed thereto in
Section 3(a) hereof.
"REQUIRED SECURED CREDITORS" shall mean (a) other than in the case of
directing the Collateral Agent to enforce its rights under, or take actions
pursuant to, Section 5.05(c) hereof, the Majority Banks and (b) in the case
of directing the Collateral Agent to enforce its rights under, and to take
action pursuant to, Section 5.05(c) hereof, the Majority Banks, provided
that if (i) a Debenture Acceleration Event has occurred and is continuing
and (ii) the Company shall remain in default in the payment of the
principal of or interest on the Debentures for more than 180 days after the
occurrence of such Debenture Acceleration Event and (iii) the Collateral
Agent has not commenced enforcement action under Section 5.05(c) hereof,
the Required Secured Creditors for the purpose of directing the Collateral
Agent to enforce its rights under, and to take action pursuant to, Section
5.05(c) hereof, shall be Secured Creditors holding a majority of the
outstanding amount of Secured Obligations (for which purpose calculation of
the requisite amount of Secured Obligations shall exclude all Debentures
owned by the Company or any other Subsidiary or Affiliate of the Company).
"RESTATEMENT DATE" shall mean March 27, 1998.
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"SECURED CREDITORS" shall mean the Administrative Agent and the Banks,
together with the Indenture Trustee and the holders of the Debentures.
"SECURED OBLIGATIONS" shall mean, collectively, (i) the Credit
Agreement Obligations, (ii) the Debenture Obligations and (iii) all
obligations of the Company to the Secured Creditors and the Collateral
Agent hereunder.
"UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial Code as in
effect from time to time in the State of New York.
Section 2. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Banks and the Administrative Agent that at the time of the
delivery to the Collateral Agent of certificates representing any Pledged Stock:
(a) the Company will be the sole beneficial owner of such Pledged
Stock and no Lien will exist upon such Pledged Stock at any time (and no
right or option to acquire the same exists in favor of any other Person),
except for the pledge and security interest in favor of the Collateral
Agent for the benefit of the Secured Creditors created or provided for
herein, which pledge and security interest constitute a first priority
perfected pledge and security interest in and to all of such Pledged Stock
(b) such Pledged Stock will be duly authorized, validly existing,
fully paid and non-assessable and none of such Pledged Stock will be
subject to any contractual restriction, or any restriction under the
charter or by-laws of the Issuer thereof (except for any such restriction
contained herein or in the Credit Agreement).
Section 3. THE PLEDGE. As collateral security for the prompt payment
in full when due (whether at stated maturity, by acceleration or otherwise) of
the Secured Obligations, the Company hereby pledges and grants to the Collateral
Agent, for the benefit of the Secured Creditors as hereinafter provided, a
security interest in all of the Company's right, title and interest in the
following property, whether now owned by the Company or hereafter acquired and
whether now existing or hereafter coming into existence (all being together
referred to herein as "COLLATERAL"):
(a) the shares of common stock of ERC represented by certificates
delivered to the Collateral Agent by the Company at any time or from time
to time (the "PLEDGED STOCK");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution or
return of capital upon or in respect of the Pledged Stock, or resulting
from a split-up, revision, reclassification or other like
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change of the Pledged Stock or otherwise received in exchange therefor,
and any subscription warrants, rights or options issued to the holders
of, or otherwise in respect of, the Pledged Stock;
(c) without affecting the obligations of the Company under any
provision prohibiting such action hereunder or under the Credit Agreement,
in the event of any consolidation or merger in which an Issuer is not the
surviving corporation, the shares of each class of the capital stock of the
successor corporation formed by or resulting from such consolidation or
merger corresponding to the shares of Pledged Stock redeemed or exchanged
pursuant to such consolidation or merger;
(d) the balance from time to time in the Collateral Account; and
(e) all proceeds of and to any of the property of the Company
described in the preceding clauses of this Section 3.
Section 4. CASH PROCEEDS OF COLLATERAL.
4.01 COLLATERAL ACCOUNT. The Collateral Agent may at any time cause
to be established at Chase a cash collateral account (the "COLLATERAL ACCOUNT")
in the name and under the control of the Collateral Agent into which there shall
be deposited from time to time the cash proceeds of any of the Collateral
required to be delivered to the Collateral Agent pursuant to Section 5.04(c)
hereof and into which the Company may from time to time deposit any additional
amounts which it wishes to pledge to the Collateral Agent for the benefit of the
Secured Creditors as additional collateral security hereunder. The balance from
time to time in the Collateral Account shall constitute part of the Collateral
hereunder and shall not constitute payment of the Secured Obligations until
applied as hereinafter provided. Except as expressly provided in the next
sentence, the Collateral Agent shall remit the collected balance standing to the
credit of the Collateral Account to or upon the order of the Company as the
Company shall from time to time instruct. However, at any time following the
occurrence and during the continuance of an Event of Default or a Debenture
Acceleration Event, the Collateral Agent may (and, if instructed by the Banks as
specified in Section 10.03 of the Credit Agreement, shall) in its (or their)
discretion apply or cause to be applied (subject to collection) the balance from
time to time standing to the credit of the Collateral Account to the payment of
the Secured Obligations in the manner specified in Section 5.08 hereof. The
balance from time to time in the Collateral Account shall be subject to
withdrawal only as provided herein. In addition to the foregoing, the Company
agrees that if the proceeds of any Collateral hereunder shall be received by it,
the Company shall as promptly as possible deposit such proceeds into the
Collateral Account. Until so deposited, all such proceeds shall be held in
trust by the Company for and as the property of the Collateral Agent and shall
not be commingled with any other funds or property of the Company.
4.02 INVESTMENT OF BALANCE IN COLLATERAL ACCOUNT. Amounts on deposit
in the Collateral Account shall be invested from time to time in such Permitted
Investments as the Company (or, after the occurrence and during the continuance
of a Default, the Collateral Agent) shall determine, which Permitted Investments
shall be held in the name and be under the control
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of the Collateral Agent, PROVIDED that at any time after the occurrence and
during the continuance of an Event of Default or a Debenture Acceleration
Event, the Collateral Agent may (and, if instructed by the Banks as specified
in Section 10.03 of the Credit Agreement, shall) in its (or their) discretion
at any time and from time to time elect to liquidate any such Permitted
Investments and to apply or cause to be applied the proceeds thereof to the
payment of the Secured Obligations in the manner specified in Section 5.08
hereof.
Section 5. FURTHER ASSURANCES; REMEDIES. In furtherance of the grant
of the pledge and security interest pursuant to Section 3 hereof, the Company
hereby agrees with each Bank and the Collateral Agent as follows:
5.01 DELIVERY AND OTHER PERFECTION. The Company shall:
(a) if any of the above-described shares, securities, moneys or
property required to be pledged by the Company under clauses (b) or (c) of
Section 3 hereof are received by the Company, forthwith either (x) transfer
and deliver to the Collateral Agent such shares or securities so received
by the Company (together with the certificates for any such shares and
securities duly endorsed in blank or accompanied by undated stock powers
duly executed in blank), all of which thereafter shall be held by the
Collateral Agent, pursuant to the terms of this Agreement, as part of the
Collateral or (y) take such other action as the Collateral Agent shall deem
necessary or appropriate to duly record the Lien created hereunder in such
shares, securities, moneys or property in said clauses (b) and (c);
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that may
be necessary or desirable (in the judgment of the Collateral Agent) to
create, preserve, perfect or validate the security interest granted
pursuant hereto or to enable the Collateral Agent to exercise and enforce
its rights hereunder with respect to such pledge and security interest;
(c) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise xxxx such books and records in such
manner as the Collateral Agent may reasonably require in order to reflect
the security interests granted by this Agreement; and
(d) permit representatives of the Collateral Agent, upon reasonable
notice, at any time during normal business hours to inspect and make
abstracts from its books and records pertaining to the Collateral, and
permit representatives of the Collateral Agent to be present at the
Company's place of business to receive copies of all communications and
remittances relating to the Collateral, and forward copies of any notices
or communications received by the Company with respect to the Collateral,
all in such manner as the Collateral Agent may require.
5.02 OTHER FINANCING STATEMENTS AND LIENS. Without the prior written
consent of the Collateral Agent (granted with the authorization of the Banks as
specified in Section 10.09 of the Credit Agreement), the Company shall not file
or suffer to be on file, or authorize or permit to be filed or to be on file, in
any jurisdiction, any financing statement or like instrument with
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respect to the Collateral in which the Collateral Agent is not named as the
sole secured party for the benefit of the Secured Creditors.
5.03 PRESERVATION OF RIGHTS. The Collateral Agent shall not be
required to take steps necessary to preserve any rights against prior parties to
any of the Collateral.
5.04 COLLATERAL.
(a) So long as no Event of Default or Debenture Acceleration Event
shall have occurred and be continuing, the Company shall have the right to
exercise all voting, consensual and other powers of ownership pertaining to
the Collateral for all purposes not inconsistent with the terms of this
Agreement, the Credit Agreement, the Notes, the Indenture or any other
instrument or agreement referred to herein or therein, PROVIDED that the
Company agrees that it will not vote the Collateral in any manner that is
inconsistent with the terms of this Agreement, the Credit Agreement, the
Notes, the Indenture or any such other instrument or agreement; and the
Collateral Agent shall execute and deliver to the Company or cause to be
executed and delivered to the Company all such proxies, powers of attorney,
dividend and other orders, and all such instruments, without recourse, as the
Company may reasonably request for the purpose of enabling the Company to
exercise the rights and powers which it is entitled to exercise pursuant to
this Section 5.04(a).
(b) Unless and until an Event of Default or a Debenture Acceleration
Event has occurred and is continuing, the Company shall be entitled to receive
and retain any dividends on the Collateral paid in cash out of earned surplus.
Upon receipt of any such dividends that the Company is entitled to receive and
retain as aforesaid, the security interest on such dividends provided for
hereunder shall terminate.
(c) If any Event of Default or Debenture Acceleration Event shall
have occurred, then so long as such Event of Default or Debenture Acceleration
Event shall continue, and whether or not the Collateral Agent or any Secured
Creditor exercises any available right to declare any Secured Obligation due and
payable or seeks or pursues any other relief or remedy available to it under
applicable law or under this Agreement, the Credit Agreement, the Notes, the
Indenture or any other agreement relating to such Secured Obligation, all
dividends and other distributions on the Collateral shall be paid directly to
the Collateral Agent and retained by it in the Collateral Account as part of the
Collateral, subject to the terms of this Agreement, and, if the Collateral Agent
shall so request in writing, the Company agrees to execute and deliver to the
Collateral Agent appropriate additional dividend, distribution and other orders
and documents to that end, PROVIDED that if such Event of Default is cured or
Debenture Acceleration Event is rescinded or annulled, any such dividend or
distribution theretofore paid to the Collateral Agent shall, upon request of the
Company (except to the extent theretofore applied to the Secured Obligations),
be returned by the Collateral Agent to the Company.
(d) If at any time there are no Loans outstanding, at the request of
the Company, the Collateral Agent shall forthwith cause to be delivered, against
receipt but without any recourse, warranty or representation whatsoever, any
remaining Collateral to the Company.
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(e) At the time of the delivery to the Collateral Agent of the
quarterly or annual Statutory Statement of ERC, together with the certificate of
a senior financial officer of the Company, as required by paragraphs (c) and (d)
of Section 8.01 of the Credit Agreement, if such certificate indicates that the
Value of the Pledged Stock as at the date of such Statutory Statement exceeds
175% of the aggregate unpaid principal amount of all Loans and Debentures less
any collected funds standing to the credit of the Collateral Account then
outstanding, then at the request of the Company, so long as no Default has then
occurred and is continuing, the Collateral Agent shall promptly release to the
Company the maximum number of shares of Pledged Stock so that, after giving
effect to such release, the Value of the Pledged Stock is not less than
166-2/3% of the aggregate unpaid principal amount of the Loans and Debentures
then outstanding less any collected funds standing to the credit of the
Collateral Account.
5.05 EVENTS OF DEFAULT, ETC. During the period during which an Event
of Default or a Debenture Acceleration Event shall have occurred and be
continuing:
(a) the Collateral Agent shall have all of the rights and remedies
with respect to the Collateral of a secured party under the Uniform
Commercial Code (whether or not said Code is in effect in the jurisdiction
where the rights and remedies are asserted) and such additional rights and
remedies to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights and remedies hereunder may be asserted,
including, without limitation, the right, to the maximum extent permitted
by law, to exercise all voting, consensual and other powers of ownership
pertaining to the Collateral as if the Collateral Agent were the sole and
absolute owner thereof (and the Company agrees to take all such action as
may be appropriate to give effect to such right, including, without
limitation, causing certificates representing the Pledged Stock to be
registered in the name of the Collateral Agent);
(b) the Collateral Agent in its discretion may, in its name or in the
name of the Company or otherwise, demand, xxx for, collect or receive any
money or property at any time payable or receivable on account of or in
exchange for any of the Collateral, but shall be under no obligation to do
so; and
(c) the Collateral Agent may, and upon the direction of the Required
Secured Creditors shall, upon ten business days' prior written notice to
the Company of the time and place, with respect to the Collateral or any
part thereof which shall then be or shall thereafter come into the
possession, custody or control of the Collateral Agent, any of the Secured
Creditors or any of their respective agents, sell, lease, assign or
otherwise dispose of all or any part of such Collateral, at such place or
places as the Collateral Agent deems best, and for cash or for credit or
for future delivery (without thereby assuming any credit risk), at public
or private sale, without demand of performance or notice of intention to
effect any such disposition or of the time or place thereof (except such
notice as is required above or by applicable statute and cannot be waived),
and the Collateral Agent or any Secured Creditor or anyone else may be the
purchaser, lessee, assignee or recipient of any or all of the Collateral so
disposed of at any public sale (or, to the extent permitted by law, at any
private sale) and thereafter hold the same absolutely, free from any claim
or right of whatsoever kind, including any right or equity of
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redemption (statutory or otherwise), of the Company, any such demand,
notice and right or equity being hereby expressly waived and released.
The Collateral Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under this
Section 5.05 shall be applied in accordance with Section 5.08 hereof.
The Company recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Collateral Agent may be compelled, with respect to any
sale of all or any part of the Collateral, to limit purchasers to those who
will agree, among other things, to acquire the Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof. The Company acknowledges that any such private sales may be at
prices and on terms less favorable to the Collateral Agent than those
obtainable through a public sale without such restrictions, and,
notwithstanding such circumstances, agrees that any such private sale shall
be deemed to have been made in a commercially reasonable manner and that the
Collateral Agent shall have no obligation to engage in public sales and no
obligation to delay the sale of any Collateral for the period of time
necessary to permit the issuer thereof to register it for public sale.
5.06 DEFICIENCY. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 5.05 hereof are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Company shall remain liable for any
deficiency.
5.07 PRIVATE SALE. The Collateral Agent and the Secured Creditors
shall incur no liability as a result of the sale of the Collateral, or any part
thereof, at any private sale pursuant to Section 5.05 hereof conducted in a
commercially reasonable manner. The Company hereby waives any claims against
the Collateral Agent or any Secured Creditor arising by reason of the fact that
the price at which the Collateral may have been sold at such a private sale was
less than the price which might have been obtained at a public sale or was less
than the aggregate amount of the Secured Obligations, even if the Collateral
Agent accepts the first offer received and does not offer the Collateral to more
than one offeree.
5.08 APPLICATION OF PROCEEDS. Except as otherwise herein expressly
provided in the third sentence of Section 4.01 hereof, the proceeds of any
collection, sale or other realization of all or any part of the Collateral
pursuant hereto, and any other cash at the time held by the Collateral Agent
under Section 4 hereof or this Section 5, shall be applied by the Collateral
Agent:
FIRST, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Collateral Agent and the reasonable fees and expenses of
its agents and counsel, and all expenses incurred and advances made by the
Collateral Agent in connection therewith;
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NEXT, to the payment in full of the Secured Obligations (whether or
not then due), in each case equally and ratably in accordance with the
respective amounts thereof, or as the Secured Creditors holding the same
may otherwise agree; and
FINALLY, to the payment to the Company, or its successors or assigns,
or as a court of competent jurisdiction may direct, of any surplus then
remaining.
Proceeds of Collateral to be applied by the Collateral Agent to the payment
of any of (a) the Debenture Obligations shall be paid to the Indenture
Trustee and (b) the Credit Agreement Obligations shall be paid to the
Administrative Agent and, (i) to the extent that any such Debenture
Obligations shall not then be due, such payment shall be applied by the
Indenture Trustee as agreed between the Company and the Indenture Trustee and
(ii) to the extent that any such Credit Agreement Obligations shall not then
be due, such payment shall be applied by the Administrative Agent as agreed
between the Company and the Administrative Agent or as otherwise required by
the Indenture. As used in this Section 5, "PROCEEDS" of Collateral shall
mean cash, securities and other property realized in respect of, and
distributions in kind of, Collateral, including any thereof received under
any reorganization, liquidation or adjustment of debt of the Company or any
issuer of or obligor on any of the Collateral.
5.09 ATTORNEY-IN-FACT. Without limiting any rights or powers granted
by this Agreement to the Collateral Agent while no Event of Default or Debenture
Acceleration Event has occurred and is continuing, upon the occurrence and
during the continuance of any Event of Default or Debenture Acceleration Event
the Collateral Agent is hereby appointed the attorney-in-fact of the Company for
the purpose of carrying out the provisions of this Section 5 and taking any
action and executing any instruments which the Collateral Agent may deem
necessary or advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without limiting
the generality of the foregoing, so long as the Collateral Agent shall be
entitled under this Section 5 to make collections in respect of the Collateral,
the Collateral Agent shall have the right and power to receive, endorse and
collect all checks made payable to the order of the Company representing any
dividend, payment or other distribution in respect of the Collateral or any part
thereof and to give full discharge for the same.
5.10 TERMINATION. When all Credit Agreement Obligations shall have
been paid in full and the Commitments of the Banks under the Credit Agreement
shall have expired or been terminated, and so long as no Debenture Acceleration
Event shall have occurred and be continuing, this Agreement shall terminate, and
the Collateral Agent shall forthwith cause to be assigned, transferred and
delivered, against receipt but without any recourse, warranty or representation
whatsoever, any remaining Collateral and money received in respect thereof, to
or on the order of the Company.
5.11 EXPENSES. The Company agrees to pay to the Collateral Agent all
out-of-pocket expenses (including reasonable expenses for legal services) of, or
incident to, the enforcement of any of the provisions of this Section 5, or
performance by the Collateral Agent of any obligations of the Company in respect
of the Collateral which the Company has failed or refused to perform, or any
actual or attempted sale, or any exchange, enforcement, collection,
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compromise or settlement in respect of any of the Collateral, and for
defending or asserting rights and claims of the Collateral Agent in respect
thereof, by litigation or otherwise, and all such expenses shall be Secured
Obligations to the Collateral Agent secured under Section 3 hereof.
5.12 FURTHER ASSURANCES. The Company agrees that, from time to time
upon the written request of the Collateral Agent, the Company will execute and
deliver such further documents and do such other acts and things as the
Collateral Agent may reasonably request in order fully to effect the purposes of
this Agreement.
Section 6. THE COLLATERAL AGENT.
A. The Collateral Agent shall hold in accordance with this
Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed that the obligations of the
Collateral Agent as holder of the Collateral and interests therein and with
respect to the disposition thereof, and otherwise under this Agreement, are
only those expressly set forth in this Agreement. The Collateral Agent shall
act hereunder on the terms and conditions set forth herein and shall have no
liability to any Secured Creditor in so acting.
B. No single Secured Creditor shall have the right to cause the
Collateral Agent to take any action with respect to the Collateral and the
Collateral Agent shall take such action with respect to the Collateral as
directed by the Required Secured Creditors consistent with the terms and
conditions of this Agreement. If the Collateral Agent shall request
instructions from the Required Secured Creditors with respect to any act or
action (including failure to act) in connection with this Agreement, the
Collateral Agent shall be entitled to refrain from such act or taking such
action unless and until it shall have received instructions from the Required
Secured Creditors, and to the extent requested, appropriate indemnification in
respect of actions to be taken; and the Collateral Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Secured Creditor shall have any right of action whatsoever against
the Collateral Agent as a result of the Collateral Agent acting or refraining
from action hereunder in accordance with the instructions of the Required
Secured Creditors as aforesaid.
C. The Collateral Agent has been appointed as agent for the Banks
hereunder by the Banks and shall be entitled to the benefits of Section 10 of
the Credit Agreement, MUTATIS MUTANDIS. By requesting, asserting, accepting or
enforcing any benefits hereunder, the Indenture Trustee and the holders of the
Debentures agree that the provisions of Section 10 of the Credit Agreement shall
apply, MUTATIS MUTANDIS, to their relationship with the Collateral Agent.
Section 7. MISCELLANEOUS.
7.01 NO WAIVER. No failure on the part of the Collateral Agent or
any of its agents to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral Agent
or any of its agents of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
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7.02 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
7.03 NOTICES. All notices, requests, consents and demands hereunder
shall be in writing and telexed, telecopied or delivered to the intended
recipient (i) in the case of the Banks, at its "Address for Notices" specified
pursuant to Section 11.02 of the Credit Agreement (which notice shall be deemed
to have been given at the times specified in said Section 11.02) and (ii) in the
case of the holders of the Debentures, at the Indenture Trustee's address as
specified in the Indenture.
7.04 WAIVERS, ETC. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by the Company
and the Collateral Agent (with the consent of the Banks as specified in
Section 10.09 of the Credit Agreement). Any such amendment or waiver shall be
binding upon all Secured Creditors, each subsequent holder of any of the Secured
Obligations, and each other party to this Agreement.
7.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of the
Company, the Collateral Agent, the Banks and each other holder of any of the
Secured Obligations (PROVIDED, however, that the Company shall not assign or
transfer its rights hereunder without the prior written consent of the
Collateral Agent).
7.06 SEVERABILITY. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Collateral Agent
and the Secured Creditors in order to carry out the intentions of the parties
hereto as nearly as may be possible and (ii) the invalidity or unenforceability
of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Pledge Agreement to be duly executed and delivered as of the day and
year first above written.
ENHANCE FINANCIAL SERVICES GROUP
INC.
By /s/ Xxxxxx Xxxxxxx
-------------------------
Title: Executive Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK
as Collateral Agent
By /s/ Xxxxx X. Xxxxxxx
-------------------------
Title: Vice President
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