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EXHIBIT 10.1.19
COLLATERAL ASSIGNMENT
THIS COLLATERAL ASSIGNMENT has been executed as of April 6, 2000, by
XXXXXXX X. XXXXXXX ("ASSIGNOR") in favor of CONSECO, INC. ("ASSIGNEE").
RECITALS
1. Concurrently with execution of this Collateral Assignment, Assignee is
lending to Assignor a term loan in the original principal amount of Twenty-Three
Million Dollars ($23,000,000.00) (the "Loan"), which Loan is evidenced by a
Promissory Note, dated April 6, 2000, executed by Assignor to the order of
Assignee in the original principal amount of Twenty-Three Million Dollars
($23,000,000.00) (as the same may be amended, extended, renewed, replaced and/or
restated from time to time and at any time, the "NOTE").
2. It is a condition of extension of the Loan to Assignor that Assignor
execute and deliver to Assignee this Collateral Assignment.
ASSIGNMENT
NOW, THEREFORE, FOR VALUE RECEIVED Assignor hereby assigns, transfers and
sets over to Assignee, and grants to Assignee a security interest in, all of
Assignor's rights, title and interests, now existing or hereafter arising, in,
to or under the following (collectively, the "ASSIGNED PAYMENTS"):
(a) all bonus payments and distributions (howsoever named or referred
to) now or hereafter owed or to be paid to Assignor under or pursuant
to Section 5(b), Section 9(c) or any other Section of the Employment
Agreement (as such term is defined below);
(a) all severance payments and distributions (howsoever named or
referred to) now or hereafter owed or to be paid to Assignor under or
pursuant to Section 9(b), Section 11 or any other Section of the
Employment Agreement;
(a) all cash payments and distributions which hereafter may become
due and payable to Assignor under or pursuant to Section 13 of the
Employment Agreement;
(a) all salary and wage payments and distributions now or hereafter
owed or to be paid to Assignor under or pursuant to Section 5(a),
Section 9(c) or Section 10(a) of the Employment Agreement (all of such
salary and wage payments being referred to hereinafter collectively as
"WAGES"); with Assignor reserving and retaining the right to revoke,
terminate and cancel the inclusion of all or any part of the Wages as
part
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of the Assigned Payments subject to this Collateral Assignment, with
the right of revocation being exercisable without cause and at any
time upon written notice to Assignee and, to the extent Assignee is
not then the employer under the Employment Agreement, to the employer
under the Employment Agreement (the "EMPLOYER");
(a) all payments and distributions hereafter owed or to be paid to
Assignee under or pursuant to Section 12 of the Employment Agreement;
(a) all claims, options, privileges, rights, title and interests of
Assignor in or with respect to all of the foregoing; and
(a) all proceeds of the foregoing.
The foregoing assignment and grant of security interest is subject to all of the
terms and conditions of the Employment Agreement and subject to the following
additional conditions and provisions:
1. This Collateral Assignment is made to secure payment by Assignor of the
Indebtedness (as such term is defined below). Upon payment of the Indebtedness
in full, any balance of sums received by Assignee pursuant to this Collateral
Assignment from the Employer shall be paid by Assignee to Assignor or such other
person as Assignor may have directed by written notice to Assignee. This
Collateral Assignment assigns, transfers and sets over to Assignee the sole
right to collect from the Employer and to receive directly from the Employer
payment of each of the Assigned Payments when each becomes due and payable;
provided, however, that unless and until there shall be an "Event of Default"
(as such term is defined below) and Assignee shall have given written notice of
its declaration of default to the Employer (if such Employer is not Assignee)
and to Assignor, all payments and distributions of the Assigned Payments by the
Employer shall continue to be made directly to Assignor.
2. The Employer is hereby authorized to recognize Assignee's claims to
receive all Assigned Payments hereunder without investigating the reason for any
action taken by Assignee, or the validity or the amount of the Indebtedness or
the existence of any Event of Default, or the giving of any notice pursuant to
the terms of this Collateral Assignment or otherwise, or the application to be
made by Assignee of any amounts to be paid to Assignee. The sole signature of
Assignee shall be sufficient for the exercise of any rights under the Employment
Agreement assigned and transferred hereby and the sole receipt of Assignee for
any payments of Assigned Payments shall be a full discharge and release therefor
to the Employer. Checks for each Assigned Payments shall be drawn to the
exclusive order of Assignee if and when pursuant to the terms of Section 1 above
such Assigned Payments are to be made directly to Assignee.
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3. The exercise of any right, option, privilege or power given in this
Collateral Assignment or otherwise to Assignee shall be at the option of
Assignee, but (except as otherwise specifically required in this Collateral
Assignment) Assignee may exercise any such right, option, privilege or power
without notice to, or assent by, or affecting the liability of, or releasing any
interest hereby assigned by, Assignor.
4. Assignee may take or release other security and collateral for the
Indebtedness, may release any party primarily or secondarily liable for any of
the Indebtedness, may grant extensions, renewals or indulgences with respect to
the Indebtedness, or may apply to the Indebtedness in such order as Assignee
shall determine, the proceeds of the Assigned Payments received by Assignee by
reason of the exercise of its rights under this Collateral Assignment, without
resorting or regard to any other security.
5. Assignor hereby irrevocably appoints and constitutes Assignee as its
true and lawful attorney-in-fact with full power of substitution for and on
behalf of Assignor to request, demand, enforce payment of, collect and receive
the Assigned Payments and to endorse any checks, drafts or orders evidencing
payment of Assigned Payments. All Assigned Payments received by Assignee shall
be applied against the Indebtedness, as received.
6. Assignor hereby covenants, represents and warrants to Assignee that the
Assigned Payments are free and clear of any prior security interest, assignment,
lien or other encumbrance.
7. This Collateral Assignment shall not operate to release or relieve
Assignor, as an employee under the Employment Agreement, from the full
performance of all of Assignor's obligations and covenants under the Employment
Agreement. Assignor shall faithfully abide by, perform and discharge each and
every obligation, covenant and agreement to be performed by Assignor under the
Employment Agreement. Without the prior written consent of Assignee, Assignor
shall not further encumber any of the Assigned Payments. Assignor shall not
waive, excuse, condone or in any manner release or discharge the Employer under
the Employment Agreement of or from any obligation to pay the Assigned Payments,
except upon the prior written consent of Assignee.
8. As used in this Collateral Assignment, the following terms shall have
the meaning ascribed to them:
(a) "EMPLOYMENT AGREEMENT" shall mean the Employment Agreement,
between Conseco, Inc. and Assignor, dated as of January 1,1998, as
amended and /or restated through the date of this Collateral
Assignment and as the same may hereafter be amended, modified and/or
restated at any time and from time to time;
(b) "EVENT OF DEFAULT" shall have the meaning ascribed to such term
in the Note.
(c) "INDEBTEDNESS" shall mean all present and future indebtedness,
obligations and liabilities, and all renewals and extensions thereof,
now or hereafter owed to Assignee by Assignor and arising under, by
virtue of or pursuant to the Loan, the Note or this Collateral
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Assignment, together with all costs, expenses and reasonable
attorneys' fees incurred by Assignee in the enforcement or collection
thereof, whether such indebtedness, obligations and liabilities are
direct, indirect, fixed, contingent, liquidated, unliquidated, now
exist or hereafter arise;
9. Any notice required or permitted to be given under this Collateral
Assignment shall be sufficient if in writing and if sent by certified or
registered mail to his residence, in the case of Assignor, or to its principal
offices, in the case of Assignee.
10. The waiver by either party of a breach of any provision of this
Collateral Assignment by the other party shall not operate nor be construed as a
waiver of any subsequent breach by either party. In the event any provision of
this Collateral Assignment is found to be invalid or unenforceable or is
revoked, it may be severed from this Collateral Assignment and the remaining
provisions of this Collateral Assignment shall continue to be binding and
effective.
11. This Collateral Assignment may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, extension or discharge is sought. This Collateral
Assignment shall be binding upon and shall inure to the benefit of the parties
and their successors in interest and assigns and shall be construed in
accordance with and governed by the laws of the State of Indiana. At the request
of Assignee, Assignor shall execute such financing statements, notices and other
documents as Assignee from time to time reasonably may request to assure
vesting, effectiveness and perfection of the assignment and security interest
granted by this Collateral Assignment. This Collateral Assignment shall
terminate upon payment in full of the Indebtedness.
12. Any controversy or claim arising out of or relating to this Collateral
Assignment, the Note, the indebtedness evidenced hereby, or any other security
agreement, pledge agreement or security document given by Assignor to Assignee
with respect to the Indebtedness (the "Other Security Agreements"), shall be
settled by binding arbitration in the City of Indianapolis, Indiana, in
accordance with the laws of the State of Indiana by three arbitrators, one of
whom shall be appointed by Lender, one by Maker and the third of whom shall be
appointed by the first two arbitrators. If the first two arbitrators cannot
agree on the appointment of a third arbitrator, then the third arbitrator shall
be appointed by the Chief Judge of the United States District Court for the
Southern District of Indiana. The arbitration shall be conducted in accordance
with the rules of the American Arbitration Association, except with respect to
the selection of arbitrators which shall be as provided herein. Judgment upon
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. No act to take or dispose of any of the collateral under
this Collateral Assignment or any of the Other Security Agreements shall
constitute a waiver of this arbitration agreement or be prohibited by this
arbitration agreement. This arbitration agreement shall not limit the right of
any party during any dispute, claim or controversy to seek, use, and employ
ancillary, equitable or preliminary rights and/or remedies, judicial or
otherwise, for the purposes of realizing upon, preserving, protecting, or
foreclosing upon any of the Assigned Payments or any other collateral under any
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of the Other Security Agreements, or preventing the same, and any such action
shall not be deemed an election of remedies. Such remedies include, without
limitation, obtaining injunctive relief or a temporary restraining order,
obtaining a writ of attachment, garnishment, or imposition of a receivership,
bankruptcy or exercising any rights relating to the Assigned Payments or other
such collateral, including taking or disposing of such property with or without
judicial process pursuant to applicable law or when applicable, a judgment. Any
disputes, claims or controversies concerning the lawfulness or reasonableness of
an act, or exercise of any right or remedy concerning the Assigned Payments or
any of the collateral under the Other Security Agreements, including any claim
to rescind, reform, revoke, avoid or otherwise modify this Collateral Assignment
or any of the Other Security Agreements, shall also be arbitrated; provided,
however that no arbitrator shall have the right or the power to enjoin or
restrain any act of any party. Nothing in this arbitration agreement shall
preclude any party from seeking equitable relief from a court of competent
jurisdiction. The statute of limitations, estoppel, waiver, laches and similar
doctrines which would otherwise be applicable in an action brought by a party
shall be applicable in any arbitration proceeding, and the commencement of an
arbitration proceeding shall be deemed the commencement of any action for these
purposes.
IN WITNESS WHEREOF, Assignor has executed this Collateral Assignment as of
the 6th day of April, 2000.
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Accepted:
CONSECO, INC.
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Executive Vice President
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STATE OF INDIANA )
) SS:
COUNTY OF __________ )
Before me, a Notary Public in and for the State of Indiana, personally
appeared Xxxxxxx X. Xxxxxxx, who being first duly sworn, acknowledged execution
of the foregoing Collateral Assignment as his voluntary act and deed.
/s/
____________________________________
_____________________, Notary Public
My commission expires:
____________________________
I am a resident of ________________ County, Indiana
