CASH COLLATERAL AGREEMENT
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CASH COLLATERAL AGREEMENT dated as of February 12, 2001, made by KINDERCARE
LEARNING CENTERS, INC., a Delaware corporation (the "Pledgor") in favor of THE
CHASE MANHATTAN BANK ("Chase"), as Agent (in such capacity, the "Agent") and as
Securities Intermediary (in such capacity, the "Securities Intermediary"), for
the Beneficiaries (as hereinafter defined).
Preliminary Statement
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In order to induce the Lenders to make Loans and each Investor to make
an Investor Contribution on Expected Project Costs, the Pledgor agrees, for the
benefit of the Lessor, the Agent, for the ratable benefit of the Lenders, the
Investor and their respective successors and assigns (each individually a
"Beneficiary", collectively, the "Beneficiaries"), as follows:
1. Defined Terms. (a) Capitalized terms not otherwise defined herein
shall have the meanings set forth on Annex A to the Participation Agreement
dated as of September 2, 1999 among the Lessee, The KinderCare Realty Trust 1999
(the "Lessor"), the Investor, the Agent, and the Lenders, as amended by the
First Amendment to Participation Agreement dated as of August 7, 2000 and as
further amended by the Second Amendment to Participation Agreement dated as of
February 12, 2001, as the same may be amended, modified or otherwise
supplemented from time to time.
(b) As used herein, the following terms shall have the following
meanings:
"Agreement": this Cash Collateral Agreement, as the same may be amended,
modified or otherwise supplemented from time to time.
"Cash Collateral": the collective reference to:
(1) all cash, instruments, securities, other financial assets
and funds deposited from time to time in the Cash Collateral Account, including,
without limitation, all cash or other money proceeds of any collateral subject
to a security interest for the benefit of the Agent under any Security Document;
(2) all investments of funds in the Cash Collateral Account and all
instruments, securities and other financial assets evidencing such investments;
(3) all interest, dividends, cash, instruments, securities and other
financial assets and other property received in respect of, or as proceeds of,
or in substitution or exchange for, any of the foregoing; and
(4) any security entitlement to any of the foregoing.
"Cash Collateral Account": account no. 323222021 established at the office
of The Chase Manhattan Bank at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx
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Xxxxxxxx, for the Agent as entitlement holder thereto designated "The Chase
Manhattan Bank Cash Collateral Account for The KinderCare Realty Trust 1999.
"Collateral": the collective reference to the Cash Collateral and the Cash
Collateral Account.
"Escrow Termination Date": June 12, 2001.
"Permitted Investments": means investments in certificates of deposit and
time deposits maturing before the Escrow Termination Date issued or guaranteed
by or placed with, and money market deposit accounts issued or offered by, the
domestic office of the Agent.
"Secured Obligations": the collective reference to the Obligations and all
obligations and liabilities of the Pledgor which may arise under or in
connection with this Agreement or any other Operative Agreement to which the
Pledgor is a party, whether on account of principal and interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Agent or to the
Beneficiaries that are required to be paid by the Pledgor pursuant to the terms
of this Agreement or any other Operative Agreement to which the Pledgor is a
party).
(c) The words "hereof," "herein" 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 paragraph
references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Grant of Security Interest. As collateral security for the prompt
and complete payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of the Secured Obligations, the Pledgor hereby
grants to the Agent, for the ratable benefit of the Beneficiaries, a security
interest in the Collateral.
3. Maintenance of Cash Collateral Account. (a) The Cash Collateral
Account shall be maintained until the Secured Obligations have been paid and
performed in full or the Escrow Termination Date, whichever is earliest.
(b) The Collateral shall be subject to the exclusive dominion and
control of the Agent, which shall hold the Cash Collateral and administer the
Cash Collateral Account subject to the terms and conditions of this Agreement.
The Pledgor shall have no right of withdrawal from the Cash Collateral Account
nor any other right or power with respect to the Collateral, except as expressly
provided herein.
(c) The Cash Collateral Account shall be a "securities account" as
such term is defined in Section 8-501(a) of the UCC. The Securities Intermediary
shall treat the Agent as entitled to exercise the rights that comprise any
financial asset credited to the Cash Collateral Account. All securities or other
property underlying any financial assets credited to the Cash
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Collateral Account shall be registered in the name of the Securities
Intermediary, indorsed to the Securities Intermediary or in blank or credited to
another securities account maintained in the name of the Securities Intermediary
and in no case will any financial asset credited to the Cash Collateral Account
be registered in the name of the Pledgor, payable to the order of the Pledgor or
specially indorsed to the Pledgor except to the extent the foregoing have been
specially indorsed to the Securities Intermediary or in blank.
(d) The Securities Intermediary hereby agrees that each item of
property (whether investment property, financial asset, security, instrument or
cash) credited to the Securities Account shall be treated as a "financial asset"
within the meaning of Section 8-102(a)(9) of the UCC.
4. Deposit of Funds. Simultaneously with the execution and delivery
of this Agreement, the Pledgor shall deposit in the Cash Collateral Account
immediately available funds in the amount equal to $12,453,000.
5. Representations and Warranties. The Pledgor represents and
warrants to the Agent that:
(a) The Pledgor has the corporate power and authority and the legal
right to execute and deliver, to perform its obligations under, and to grant the
security interest in the Collateral pursuant to, this Agreement and has taken
all necessary corporate action to authorize its execution, delivery and
performance of, and grant of the security interest in the Collateral pursuant
to, this Agreement.
(b) This Agreement constitutes a legal, valid and binding obligation
of the Pledgor enforceable against the Pledgor in accordance with its terms and
creates in favor of the Agent a perfected, first priority security interest in
the Collateral, enforceable in accordance with its terms, except in each case as
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
(c) The execution, delivery and performance of this Agreement will
not violate any provision of any Requirement of Law or Contractual Obligation of
the Pledgor and will not result in the creation or imposition of any Lien on any
of the properties or revenues of the Pledgor pursuant to any Requirement of Law
or Contractual Obligation of the Pledgor, except as contemplated hereby.
(d) No consent or authorization of, filing with, or other act by or
in respect of, any arbitrator or Governmental Authority and no consent of any
other Person (including, without limitation, any stockholder or creditor of the
Pledgor), is required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement by or against the Pledgor.
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(e) No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Pledgor, threatened by or against the Pledgor or against any of its properties
or revenues with respect to this Agreement or any of the transactions
contemplated hereby.
6. Covenants. The Pledgor covenants and agrees with the Agent that:
(a) The Pledgor will not sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the Collateral, or
create, incur or permit to exist any Lien or option in favor of, or any claim of
any Person with respect to, any of the Collateral, or any interest therein,
except for the security interest created by this Agreement.
(b) The Pledgor will maintain the security interest created by this
Agreement as a first, perfected security interest and defend the right, title
and interest of the Agent and the Beneficiaries in and to the Collateral against
the claims and demands of all Persons whomsoever. At any time and from time to
time, upon the written request of the Agent, and at the sole expense of the
Pledgor, the Pledgor will promptly and duly execute and deliver such further
instruments and documents and take such further actions as the Agent reasonably
may request for the purposes of obtaining or preserving the full benefits of
this Agreement and of the rights and powers herein granted, including, without
limitation, of financing statements under the UCC.
7. Investment of Cash Collateral. (a) Subject to the provisions of
paragraph 7(b), collected funds on deposit in the Cash Collateral Account shall
be invested by the Securities Intermediary from time to time in Permitted
Investments; provided, however, that so long as no Default shall have occurred
and be continuing, the Securities Intermediary shall make such investments at
the direction of the Pledgor. All investments shall be made in the name of the
Agent or a nominee of the Agent and in a manner, determined by the Agent in its
sole discretion, that preserves the Agent's perfected, first priority security
interest on behalf of the Lenders and Investor in such investments.
(b) The Securities Intermediary shall have no obligation to invest
collected funds during the first night after their collection.
(c) The Securities Intermediary shall have no responsibility to the
Pledgor for any loss or liability arising in respect of such investments of the
Cash Collateral (including, without limitation, as a result of the liquidation
of any portion thereof before maturity), except to the extent that such loss or
liability arises from the Securities Intermediary's gross negligence or willful
misconduct. Any Permitted Investment shall be a general deposit in the Agent.
(d) The Pledgor will pay or reimburse the Securities Intermediary for
any and all costs, expenses and liabilities of the Securities Intermediary
incurred in connection with this Agreement, the maintenance and operation of the
Cash Collateral Account and the investment of the Cash Collateral, and any
investment charges or other fees of Chase in connection with maintenance of the
Cash Collateral Account.
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8. Release of Cash Collateral. (a) Before the Escrow Termination
Date, the Securities Intermediary, as Agent, shall release to the Pledgor Cash
Collateral in amounts requested in Requisitions for the payment of Project Costs
prepared and filed pursuant to the terms of Section 5.2 and 5.3 of the
Participation Agreement.
(b) The Securities Intermediary shall release all Cash Collateral to
the Pledgor only in the event the Secured Obligations have been paid and
performed in full.
(c) Notwithstanding any other provision of this paragraph, the Agent
shall have no obligation to release Cash Collateral if a Default or Event of
Default shall have occurred and be continuing or shall result from the release
of the Cash Collateral.
9. Remedies; Remaining Cash Collateral on Escrow Termination Date.
(a) Upon the occurrence of (i) an Event of Default or (ii) the Escrow
Termination Date, if Cash Collateral remains in the Cash Collateral Account, the
Agent may, without notice of any kind, except for notices required by law which
may not be waived, apply the Cash Collateral, after deducting all reasonable
costs and expenses of every kind incurred in respect thereof or incidental to
the care or safekeeping of any of the Cash Collateral or in any way relating to
the Cash Collateral or the rights of the Agent and the Beneficiaries hereunder,
including, without limitation, reasonable attorneys' fees and disbursements of
counsel to the Agent, to the payment in whole or in part of the Secured
Obligations, in such order as is specified in Section 8.2 of the Credit
Agreement, and only after such application and after the payment by the Agent of
any other amount required by any provision of law, including, without
limitation, Section 9-504(1)(c) of the UCC, need the Agent account for the
surplus, if any, to the Pledgor. In addition to the rights, powers and remedies
granted to it under this Agreement and in any other agreement securing,
evidencing or relating to the Secured Obligations, the Agent shall have all the
rights, powers and remedies available at law, including, without limitation, the
rights and remedies of a secured party under the UCC. To the extent permitted by
law, the Pledgor waives presentment, demand, protest and all notices of any kind
and all claims, damages and demands it may acquire against the Agent or any
Beneficiary arising out of the exercise by them of any rights hereunder.
(b) The Pledgor waives and agrees not to assert any rights or
privileges that it may acquire under Section 9-112 of the UCC. The Pledgor shall
remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay the Secured Obligations
and the fees and disbursements of any attorneys employed by the Agent or any
Beneficiary to collect such deficiency.
10. Agent's Appointment as Attorney-in-Fact. (a) The Pledgor hereby
irrevocably constitutes and appoints the Agent and any officer or agent of the
Agent, with full power of substitution, as its true and lawful attorney-in-fact
with full irrevocable power and authority in the place and stead of the Pledgor
and in the name of the Pledgor or in the Agent's own name, from time to time in
the Agent's discretion, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Agreement, including, without limitation, any financing
statements, endorsements, assignments or other instruments of transfer.
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(b) The Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney granted in
paragraph 10(a). 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.
11. Duty of the Securities Intermediary and the Agent. The Securities
Intermediary's and the Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its possession, under
Section 9-207 of the UCC or otherwise, shall be to comply with the specific
duties and responsibilities set forth herein. The powers conferred on the Agent
in this Agreement are solely for the protection of the Agent's and the
Beneficiaries' interests in the Collateral and shall not impose any duty upon
the Agent or any Beneficiary to exercise any such powers. Neither the Agent nor
any Beneficiary nor its or their directors, officers, employees or agents shall
be liable for any action lawfully taken or omitted to be taken by any of them
under or in connection with the Collateral or this Agreement, except for its or
their gross negligence or willful misconduct.
12. Execution of Financing Statements. Pursuant to Section 9-402 of
the UCC, the Pledgor authorizes the Agent to file financing statements with
respect to the Collateral without the signature of the Pledgor in such form and
in such filing offices as the Agent reasonably determines appropriate to perfect
the security interests of the Agent under this Agreement. A carbon, photographic
or other reproduction of this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction.
13. Authority of Agent. The Pledgor acknowledges that the rights and
responsibilities of the Agent under this Agreement with respect to any action
taken by the Agent or the exercise or non-exercise by the Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Agent and the
Beneficiaries, be governed by the Credit Agreement and by such other agreements
with respect thereto as may exist from time to time among them, but, as between
the Agent and the Pledgor, the Agent shall be conclusively presumed to be acting
as agent for the Beneficiaries with full and valid authority so to act or
refrain from acting, and the Pledgor shall not be under any obligation, or
entitlement, to make any inquiry respecting such authority.
14. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be given pursuant to the
provisions of Section 13.3 of the Participation Agreement.
15. Severability. Any provision of this Agreement that 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.
16. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None
of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise
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modified except by a written instrument executed by the Pledgor, the Agent and
the Securities Intermediary, provided that any provision of this Agreement may
be waived by the Agent and the Beneficiaries in a letter or agreement executed
by the Agent or by telex or facsimile transmission from the Agent.
(b) Neither the Agent nor any Beneficiary shall by any act (except by
a written instrument pursuant to paragraph 16(a) hereof) of delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default or in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Agent or any Beneficiary, 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 Agent or any Beneficiary of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Agent or such Beneficiary would otherwise have on any future occasion.
(c) 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.
17. 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.
18. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of the Pledgor and shall inure to the benefit of the
Agent and the Beneficiaries and their successors and assigns.
19. Governing Law. This Agreement shall be governed by, and construed
and interpreted in accordance with, the law of the State of New York. For
purposes of the UCC, New York shall be deemed to be the Securities
Intermediary's jurisdiction (and there shall be no contrary agreement of the
Securities Intermediary with the Agent or the Pledgor governing the Cash
Collateral Account and providing for any other such jurisdiction, in either case
without the consent of the Required Lenders) and the Cash Collateral Account (as
well as the securities entitlements related thereto) shall be governed by the
laws of the State of New York.
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IN WITNESS WHEREOF, the Pledgor, the Agent and the Securities
Intermediary have caused this Cash Collateral Agreement to be duly executed and
delivered as of the date first above written.
KINDERCARE LEARNING CENTERS, INC.
By: /s/ XXX X. XXXXXXXXX
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Name: Xxx X. Xxxxxxxxx
Title: VP, General Counsel & Secretary
THE CHASE MANHATTAN BANK, as the Agent
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as the
Securities Intermediary
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
