EXHIBIT 4.1
SECOND AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 5, 2002
This Second Amendment, dated as of March 5, 2002, is entered
into between AMERICAN COUNTRY HOLDINGS INC., a corporation formed under the laws
of the State of Delaware (the "BORROWER"), and THE NORTHERN TRUST COMPANY, an
Illinois banking corporation having its principal office at 00 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "LENDER").
RECITALS:
A. The Borrower and the Lender have entered into an Amended
and Restated Credit Agreement dated as of March 24, 2000 (said Revolving Credit
Agreement, as heretofore amended, shall hereinafter be referred to as the
"AGREEMENT"; the terms defined in the Agreement and not otherwise defined herein
shall be used herein as defined in the Agreement).
B. The Borrower and the Lender wish to amend certain
provisions of the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. AMENDMENTS. The Agreement is hereby amended as of the date hereof as
follows:
1.1 DEFINITIONS.
CHANGE OF CONTROL. The definition of the term "Change of
Control" set forth in Article I of the Agreement is hereby amended to read in
its entirety as follows:
"CHANGE OF CONTROL" means (a) Xxxxxx X. Xxxxxx, Xx. (and/or
Xxxxxx X. Xxxxx, Bedford Oaks Advisers LLC, Xxxxxxx X. Xxxxxx
and Value Architects LLC) and Xxxxxx X. Xxxxxxx shall
collectively cease to own beneficially and of record, free and
clear of all Liens, other encumbrances, or voting agreements,
restrictions or trust of any kind at least 51% of the
outstanding shares of voting capital stock of the Borrower on
a fully diluted basis (b) Xxxxxx X. Xxxxxxx shall cease to own
beneficially and of record, free and clear of all Liens, other
encumbrances, or voting agreements, restrictions or trusts of
any kind at least 15% of the outstanding shares of voting
capital stock of the Borrower on a fully diluted basis, (c)
any Person (other than Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx
Xx., Xxxxxx X. Xxxxx, Bedford Oaks Advisers LLC, Xxxxxxx X.
Xxxxxx and Value Architects LLC) or group of related Persons
for purposes of Section 13(d) of the Securities Exchange Act
of 1934 shall own or control the voting of 20% or more of the
outstanding shares of voting stock of the Borrower, (d) during
any
period of 25 consecutive calendar months, commencing on the
date of this Agreement, the ceasing of those individuals (the
"CONTINUING DIRECTORS") who (i) were directors of the Borrower
on the first day of each such period or (ii) subsequently
became directors of the Borrower and whose initial election or
initial nomination for election subsequent to that date was
approved by a majority of the Continuing Directors then on the
board of directors of the Borrower, to constitute a majority
of the board of directors of the Borrower or (e) the Borrower
shall cease to own beneficially and of record, free and clear
of all Liens (except for the benefit of the Lender), other
encumbrances or voting agreements, restrictions or trusts of
any kind 100% of the outstanding shares of capital stock of
either ACF or ACI; Provided, that any voting capital stock
transferred to a spouse of Xxxxxx X. Xxxxxxx, Xxxxxx X.
Xxxxxx, Xx., Xxxxxx X. Xxxxx or Xxxxxxx X. Xxxxxx, the direct
descendants of such Person, an entity controlled by such
Person and/or a trust for the benefit of such Person shall be
deemed to be held by such Person for the purposes of this
definition.
EURODOLLAR RATE. The definition of the term "Eurodollar Rate"
set forth in Article I of the Agreement is hereby amended to read in its
entirety as follows:
"EURODOLLAR RATE" means, with respect to a Eurodollar Loan for
the relevant Interest Period, the sum of (a) the quotient of (i) the Eurodollar
Base Rate applicable to such Interest Period, divided by (ii) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest Period
PLUS (b) 1.50% per annum in the case of a Eurodollar Loan which constitutes a
Revolving Credit Loan and in the case of a Eurodollar Loan which constitutes the
Term Loan, 1.50% per annum during the period through and including April 30,
2004 and 1.75% per annum thereafter. The Eurodollar Rate shall be rounded to the
next higher multiple of 1/16 of 1% if the rate is not such a multiple.
PLEDGE AGREEMENT. The following definition of Pledge Agreement
is hereby added to Article I of the Credit Agreement:
"PLEDGE AGREEMENT" means a pledge agreement of the Borrower in
substantially the form attached as Exhibit D hereto.
REVOLVING CREDIT COMMITMENT. The definition of the term
"Revolving Credit Commitment" set forth in Article I of the Agreement is hereby
amended to read in its entirety as follows:
"REVOLVING CREDIT COMMITMENT" means the obligation of the
Lender to make Revolving Credit Loans to the Borrower in an
aggregate amount not to exceed (a) $2,000,000 for the period
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through and including May 30, 2002 and (b) $1,000,000 at any
time thereafter, as such amounts may be modified from time to
time pursuant to the terms hereof.
REVOLVING CREDIT TERMINATION DATE. The definition of the term
"Revolving Credit Termination Date" set forth in Article I of the Agreement is
hereby amended to read in its entirely as follows:
"REVOLVING CREDIT TERMINATION DATE" means November 30, 2002.
TERM LOAN MATURITY DATE. The definition of the term "Term Loan
Maturity Date" set forth in Article I of the Agreement is hereby amended to read
in its entirety as follows:
"TERM LOAN MATURITY DATE" means April 30, 2005.
1.2 TERM LOAN. Section 2.2(c) of the Agreement is hereby amended
to read in its entirety as follows:
"(c) The Term Loan is payable in four installments set forth below.
Each installment is payable on the date set forth below. The Term Loan shall
mature, and the principal amount thereof and the unpaid accrued interest thereon
shall be due and payable on the Term Loan Maturity Date.
INSTALLMENT DATE AMOUNT
05/30/02 $2,000,000
04/30/03 $2,000,000
04/30/04 $2,000,000
04/30/05 $2,000,000"
1.3 FINANCIAL COVENANTS.
(a) MINIMUM SHAREHOLDERS' EQUITY. Section 6.27(a) of the
Agreement is hereby amended to read in its entirety as follows:
"(a) MINIMUM SHAREHOLDERS' EQUITY. At all times after the date
hereof, maintain a minimum Shareholders' Equity at least equal
to the greater of (i) the sum of (1) $31,000,000 PLUS (2) 50%
of the Borrower's positive consolidated Net Income, if any,
for each Fiscal Quarter ending December 31, 2001 and on or
prior to the date of determination, PLUS (3) 50% of the Net
Available Proceeds received by the Borrower or any Subsidiary
from the issuance of equity securities after the date of this
Agreement, PLUS (4) 50% of the aggregate amount of capital
contributions made to the Borrower after the date of this
Agreement; or (ii) an amount equal to $31,000,000 for the
calendar year ending December 31, 2001, increasing to
$34,000,000 as of May 30, 2002, further increasing to
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$36,000,000 for the calendar year ending December 31, 2002,
and increasing by $2,000,000 each subsequent calendar year end
thereafter."
(b) ACF NET WORTH. Section 6.27(d) of the Agreement is hereby
amended to state in its entirety as follows:
"(d) ACF NET WORTH. At all times after the date hereof, cause
ACF to maintain a minimum shareholders' equity, as determined
in accordance with Agreement Accounting Principles, at least
equal to $100,000."
1.4 INDEBTEDNESS. Section 6.11 of the Agreement is hereby amended to
read in its entirety as follows:
"6.11 INDEBTEDNESS. The Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness,
except:
(a) The Loans;
(b) Indebtedness existing on the date of the First
Amendment to this Agreement and described in SCHEDULE
1.4 to such First Amendment;
(c) Indebtedness with respect to Contingent Obligations
permitted under SECTION 6.17;
(d) Rate Hedging Obligations related to the Loans;
(e) Indebtedness owed by the Borrower to any Subsidiary
or any Subsidiary to the Borrower; and
(f) Indebtedness incurred by ACF in the ordinary course
of business and owing to ACI with a principal amount
not to exceed $6,000,000 at any one time
outstanding."
1.5 LEASE RENTALS. Section 6.20 of the Agreement is hereby amended
by the deletion of the number "$1,000,000" and the substitution of the number
"$1,500,000" therefor.
1.6 PLEDGE AGREEMENT. The Agreement is hereby amended by
the addition of an Exhibit D in the form of Exhibit D hereto.
2. WAIVER. The Lender hereby waives any breach of the Agreement which may
have existed prior to giving effect to this Amendment so long as such breach
shall not be so continuing after giving effect to this Amendment. This waiver
shall be limited to its terms and shall not constitute a waiver of any other
rights the Lender may have from time to time.
3. REPRESENTATIONS AND WARRANTIES. To induce the Lender to enter into this
Amendment, the Borrower represents and warrants to the Lender that:
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3.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties in the Agreement are true and correct as of the date of this
Amendment as if made on the date of this Amendment.
3.2 AUTHORIZATION. This Amendment and the Pledge Agreement are
within the Borrower's powers, have been duly authorized, and do not conflict
with any of the Borrower's articles of incorporation or bylaws.
3.3 NO CONFLICT. This Amendment and the Pledge Agreement do not
conflict with any law, agreement, or obligation by which the Borrower is bound.
3.4 VALIDITY AND BINDING EFFECT. The Agreement, as amended by this
Amendment, and the Pledge Agreement are legal, valid and binding obligations of
the Borrower, enforceable against the Borrower in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency or other similar laws of general application affecting the
enforcement of creditors' rights or by general principles of equity limiting the
availability of equitable remedies.
4. CONDITIONS PRECEDENT. The amendments contemplated hereof are subject to
the satisfaction of each of the following conditions precedent:
4.1 DOCUMENTATION. The Borrower shall have delivered to the Lender
the following documents, in form and substance satisfactory to the Lender:
(a) RESOLUTIONS. A copy, duly certified by the secretary
or assistant secretary of the Borrower, of (i) resolutions of the Borrower's
Board of Directors authorizing or ratifying the execution and delivery of this
Amendment and the Pledge Agreement and authorizing the borrowings under the
Agreement, as amended hereby, and (ii) all approvals or consents, if any, with
respect to this Amendment and the Pledge Agreement.
(b) INCUMBENCY CERTIFICATE. A certificate of the
secretary or an assistant secretary of the Borrower certifying the names of the
Borrower's officers authorized to sign this Amendment and the Pledge Agreement
and all other documents or certificates to be delivered hereunder, together with
the true signatures of such officers.
(c) PLEDGE AGREEMENT. A duly executed Pledge Agreement,
together with such financing statements, stock certificates and stock powers
executed in blank as the Lender may reasonably request.
(d) OPINION. An opinion of counsel to the Borrower in
form satisfactory to the Lender.
(e) OTHER. Such other documents as the Lender may
reasonably request.
4.2 REVOLVING CREDIT LOANS. The Borrower shall have made such
payments as may have been necessary to cause the outstanding principal amount of
the Revolving Credit Loans not to exceed $2,000,000.
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4.3 FEES. The Borrower shall have paid all fees (including
reasonable legal fees), costs and expenses incurred by the Lender in connection
with the Agreement and this Amendment.
4.4 NO DEFAULT. After giving effect to this Amendment, no Default
and no event which, with the giving of notice or the passage of time shall
constitute a Default, shall have occurred and be continuing.
4.5 REPRESENTATIONS AND WARRANTIES. As of the date of this
Amendment, the representations and warranties of the Borrower set forth in
Article V of the Agreement and in Section 3 of this Amendment shall be true and
correct in all material respects as though made on such date, except for such
changes as are specifically permitted under this Agreement.
5. EFFECT OF THIS AMENDMENT. Except as provided in this Amendment, all of
the terms and conditions of the Agreement shall remain in full force and effect.
6. COUNTERPARTS. This Amendment may be executed in counterparts, each of
which when so executed shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
7. LAW. This Amendment shall be governed by and construed in accordance
with the laws of the State of
Illinois.
8. SUCCESSORS. This Amendment shall be binding upon the Borrower and the
Lender and their respective successors and assigns, and shall inure to the
benefit of the Borrower and the Lender and the successors and assigns of the
Lender.
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This Amendment is executed at Chicago,
Illinois as of the date first stated
above.
THE NORTHERN TRUST COMPANY
By:
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Title
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AMERICAN COUNTY HOLDINGS INC.
By:
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Title
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EXHIBIT D
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of March 5, 2002, among
AMERICAN
COUNTRY HOLDINGS INC., a Delaware corporation (the "PLEDGOR") and THE NORTHERN
TRUST COMPANY, an
Illinois banking corporation (the "LENDER")
W I T N E S S E T H:
WHEREAS, pursuant to an Amended and Restated
Credit Agreement,
as amended (as so amended, the "
CREDIT AGREEMENT"), the Lender has extended
commitments to make Loans to the Pledgor;
WHEREAS, the Borrower has requested an amendment to the
Credit
Agreement;
WHEREAS, as a condition precedent to such amendment, the
Pledgor is required to execute and deliver this Pledge Agreement;
WHEREAS, the Pledgor has duly authorized the execution,
delivery and performance of this Pledge Agreement; and
WHEREAS, the Pledgor is the legal and beneficial owner of the
shares of stock (such shares of stock, together with shares of stock described
in SECTION 2(b), the "PLEDGED SHARES") described on SCHEDULE I hereto and issued
by the corporations named therein (each an "ISSUER" and collectively, the
"ISSUERS"), which Pledged Shares constitute the percentage of all the issued and
outstanding shares of capital stock of such companies identified on such
SCHEDULE I.
NOW, THEREFORE, for good and valuable consideration the
receipt of which is hereby acknowledged, and in order to induce the Lender to
make Loans to the Borrower pursuant to the
Credit Agreement, the Pledgor agrees,
for the benefit of the Lender, as follows:
1. DEFINED TERMS. (a) Unless otherwise defined herein,
terms defined in the
Credit Agreement and used herein shall have the meanings
given to them in the
Credit Agreement.
(b) As used herein, the term "Obligations" means the
collective reference to all obligations of the Pledgor, howsoever
created, arising or evidenced to the Lender, whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter incurred, that may arise under, out of, or in connection
with, the Credit Agreement or any other documents made, delivered or
given in connection therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
or otherwise (including, without limitation, all fees and disbursements
of counsel to the Lender that are required to be paid by the Pledgor
pursuant to the terms of the Credit Agreement or any other Loan
Document).
(c) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Pledge Agreement shall refer
to this Pledge Agreement as a whole and not to any particular provision
of this Pledge Agreement, and Section references are to Sections of
this Pledge 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. The Pledgor hereby transfers,
assigns and pledges to the Lender, and hereby grants to the Lender, a continuing
security interest in, the following, whether now owned or existing or hereafter
acquired or existing (collectively, the "COLLATERAL"):
(a) the Pledged Shares and the certificates representing
the Pledged Shares and any interest of the Pledgor in the entries on
the books of any financial intermediary pertaining to the Pledged
Shares, and all dividends, cash, warrants, rights, securities,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Shares;
(b) all additional shares of stock of any of the Issuers
listed in Schedule I hereto at any time and from time to time acquired
by the Pledgor in any manner, all of the certificates representing such
additional shares, and all cash, securities, 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 of
such shares;
(c) all other property hereafter delivered by the Pledgor
to the Lender in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or evidencing
such property, and 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) to the extent not covered by clauses (a) through (c)
above, respectively, all products and proceeds of any or all of the
foregoing Collateral. For purposes of this Pledge Agreement, the term
"proceeds" includes, without limitation, whatever is receivable or
received when Collateral or proceeds are sold, exchanged, collected or
otherwise disposed of, whether such disposition is voluntary or
involuntary.
3. SECURITY FOR OBLIGATIONS. This Pledge Agreement
secures the payment of all Obligations of the Pledgor. Without limiting the
generality of the foregoing, this Pledge Agreement secures the payment of all
amounts that constitute part of the Obligations and would be owed by the Pledgor
to the Lender under the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Pledgor.
4. DELIVERY OF THE COLLATERAL. All certificates or
instruments, if any, representing or evidencing the Collateral shall be promptly
delivered to and held by or on behalf of the Lender pursuant hereto and shall be
in suitable form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance reasonably satisfactory to the Lender. The Lender shall have the
right, at any time after
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the occurrence and during the continuance of an Event of Default and without
notice to the Pledgor, to transfer to or to register in the name of the Lender
or any of its nominees any or all of the Pledged Shares.
5. REPRESENTATIONS AND WARRANTIES. The Pledgor
represents and warrants as follows:
(a) The Pledged Shares set forth on Schedule I hereto
represent on the date hereof all of the issued and outstanding capital
stock of each Issuer.
(b) The Pledgor is (or at the time of any future
delivery, pledge, assignment or transfer thereof will be) the legal and
beneficial owner of the Collateral, as indicated on SCHEDULE I, pledged
or assigned by the Pledgor hereunder free and clear of any Lien, except
for the Lien created by this Pledge Agreement.
(c) As of the date of this Pledge Agreement, the Pledged
Shares pledged by the Pledgor hereunder have been duly authorized and
validly issued and are fully paid and non-assessable.
(d) The execution and delivery by the Pledgor of this
Pledge Agreement and the pledge of the Collateral pledged by the
Pledgor hereunder pursuant hereto create a valid and perfected first
priority security interest in the Collateral, securing the payment of
the Obligations.
(e) The Pledgor has full power, authority and legal right
to pledge all the Collateral pledged by the Pledgor pursuant to this
Pledge Agreement and will defend its and the Lender's title or interest
thereto or therein (and in the proceeds thereof) against any and all
Liens (other than the Lien of this Pledge Agreement), however arising,
or any and all persons whomsoever.
(f) The information contained on Schedule I hereto with
respect to the Pledgor is true and accurate in all respects.
6. FURTHER ASSURANCES. The Pledgor agrees that, so long
as any of the Obligations shall be outstanding, at the expense of the Pledgor,
it will (i) promptly execute and deliver all further instruments and documents,
and take all further action, that may be necessary, or that the Lender may
reasonably request, in order to grant a security interest in all equity
interests the Pledgor may hold directly from time to time in any Issuer and in
order to perfect and protect any pledge, assignment or security interest granted
or purported to be granted hereby or to enable the Lender to exercise and
enforce its rights and remedies hereunder with respect to any Collateral or such
equity interests and (ii) execute and deliver to the Lender such stock powers
and similar documents relating to Pledgor's Collateral and such equity
interests, satisfactory in form and substance to the Lender, as the Lender may
reasonably request.
7. HOLDING IN NAME OF LENDER, ETC. The Lender may from
time to time after the occurrence and during the continuance of a Default,
without notice to the Pledgor, take all or any of the following actions: (a)
transfer all or any part of the Collateral into the name of the Lender or any
nominee or sub-agent for the Lender, with or without disclosing that such
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Collateral is subject to the Lien and security interest hereunder, (b) appoint
one or more sub-agents or nominees for the purpose of retaining physical
possession of the Collateral, (c) notify the parties obligated on any of the
Collateral to make payment to the Lender of any amount due or to become due
thereunder, (d) endorse any checks, drafts or other writings in the name of the
Pledgor to allow collection of the Collateral, (e) enforce collection of any of
the Collateral by suit or otherwise, and surrender, release or exchange all or
any part thereof, or compromise or renew for any period (whether or not longer
than the original period) any obligations of any nature of any party with
respect thereto, and (f) take control of any proceeds of the Collateral.
8. VOTING RIGHTS: DIVIDENDS AND DISTRIBUTIONS: ETC.
Notwithstanding the provisions of SECTION 7, (a) so long as no Default shall
have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise
any and all voting and other consensual rights pertaining to
the Collateral or any part thereof for any purpose not
prohibited by the terms of this Pledge Agreement or the other
Loan Documents; PROVIDED, HOWEVER, that the Pledgor agrees
that it will not exercise any such right in any manner which
would have a material adverse effect on the value of the
Collateral.
(ii) The Lender shall execute and deliver (or
cause to be executed and delivered) to the Pledgor all such
proxies and other instruments as such Pledgor may reasonably
request for the purpose of enabling the Pledgor to exercise
the voting and other rights that it is entitled to exercise
pursuant to PARAGRAPH (i) above.
(b) Subject to PARAGRAPH (c) below, the Pledgor shall be
entitled to receive and retain any and all lawful dividends payable in
respect of the Collateral (except dividends payable in stock of the
Issuer) if such dividends are permitted by the Credit Agreement, but
all dividends and distributions in respect of the Collateral or any
part thereof made in shares of stock or securities, whether resulting
from a subdivision, combination or reclassification of Collateral or
any part thereof or received in exchange for Collateral or any part
thereof or as a result of any merger, consolidation, acquisition or
other exchange of assets to which any Issuer may be a party or
otherwise or as a result of any exercise of any stock purchase or
subscription right, shall be and become part of the Collateral
hereunder and, if received by the Pledgor, shall be forthwith delivered
to the Lender in due form for transfer (i.e., endorsed in blank or
accompanied by undated stock or bond powers executed in blank) to be
held for the purposes of this Pledge Agreement.
(c) Upon written notice to the Pledgor by the Lender
following the occurrence and during the continuance of a Default, but
subject to the terms of SECTION 25:
(i) all rights of the Pledgor to exercise or
refrain from exercising the voting and other consensual rights
that it would otherwise be entitled to exercise pursuant to
SECTION 8(a)(i) shall cease, and all such rights shall
thereupon become vested in the Lender, which shall thereupon
have the sole right to exercise or refrain from exercising
such voting and other consensual rights during the continuance
of such Default;
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(ii) all rights of the Pledgor to receive the
dividends, distributions and principal and interest payments
that the Pledgor would otherwise be authorized to receive and
retain pursuant to SECTION 8(b) shall cease, and all such
rights shall thereupon become vested in the Lender, which
shall thereupon have the sole right to receive and hold as
Collateral such dividends, distributions and principal and
interest payments during the continuance of such Default;
(iii) all dividends, distributions and principal
and interest payments that are received by the Pledgor
contrary to the provisions of SECTION 8(b) shall be received
in trust for the benefit of the Lender, shall be segregated
from other funds of the Pledgor and shall forthwith be paid
over to the Lender as Collateral in the same form as so
received (with any necessary endorsements);
(iv) any and all money and other property paid
over to or received by the Lender pursuant to this PARAGRAPH
(c) shall be retained by the Lender as additional Collateral
hereunder and applied in accordance with the provisions
hereof; and
in order to permit the Lender to receive all dividends, distributions and
principal and interest payments to which it may be entitled under SECTION 8(b)
above, to exercise the voting and other consensual rights that it may be
entitled to exercise pursuant to SECTION 8(c)(i) above, and to receive all
dividends, distributions and principal and interest payments that it may be
entitled to under SECTION 8(c)(ii) above, the Pledgor shall, if necessary, upon
written notice from the Lender, from time to time execute and deliver to the
Lender, appropriate proxies, dividend payment orders and other instruments as
the Lender may reasonably request.
9. TRANSFERS AND OTHER LIENS: ADDITIONAL COLLATERAL:
ETC. So long as any of the Obligations shall be outstanding, Pledgor shall not
(i) sell, assign, exchange, pledge, transfer, encumber or otherwise dispose of,
or grant any option, warrant or right with respect to, any of the Collateral or
(ii) create or suffer to exist any consensual Lien upon or with respect to any
of the Collateral, except for the Lien under this Pledge Agreement.
10. LENDER APPOINTED ATTORNEY-IN-FACT. The Pledgor hereby
irrevocably appoints the Lender as the Pledgor's attorney-in-fact, with full
authority in the place and stead of the Pledgor and in the name of the Pledgor
or otherwise to take any action and to execute any instrument, in each case
after the occurrence and during the continuance of a Default, that the Lender
may deem reasonably necessary or advisable to accomplish the purposes of this
Pledge Agreement, including, without limitation, to receive, indorse and collect
all instruments made payable to the Pledgor representing any dividend,
distribution or principal or interest payment in respect of the Collateral or
any part thereof and to give full discharge for the same.
11. THE LENDER'S DUTIES. The powers conferred on the
Lender hereunder are solely to protect its interest in the Collateral and shall
not impose any duty upon it to exercise any such powers. The Lender shall be
deemed to have exercised reasonable care in the custody and preservation of the
Collateral if it takes such action for that purpose as the Pledgor shall request
in writing, but failure of the Lender to comply with any such request shall not
of itself be deemed a failure to exercise reasonable care, and no failure of the
Lender to preserve or protect
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any rights with respect to the Collateral against prior parties, or to do any
act with respect to preservation of the Collateral not so requested by the
Pledgor, shall be deemed a failure to exercise reasonable care in the custody or
preservation of any Collateral.
12. REMEDIES. If any Default shall have occurred and be
continuing:
(a) The Lender may exercise in respect of the Collateral,
in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured
party upon default under the Uniform Commercial Code in effect in the
State of
Illinois at such time (the "
ILLINOIS UNIFORM COMMERCIAL
CODE"), irrespective of whether the
Illinois Uniform Commercial Code
applies to the affected Collateral. The Lender also (i) may without
notice, advertisement, hearing or process of law of any kind except as
specified below, (x) sell the Collateral or any part thereof in one or
more parcels at public or private sale, at any exchange broker's board
or at any of the Lender's offices or elsewhere, for cash, on credit or
for future delivery, at such price or prices and upon such other terms
as are commercially reasonable irrespective of the impact of any such
sales on the market price of the Collateral, (y) bid for and purchase
any or all of the Collateral at any such public sale and (ii) shall
have the right, for and in the name, place and stead of the Pledgor, to
execute endorsements, assignments, stock powers and other instruments
of conveyance or transfer with respect to all or any of the Collateral.
The Pledgor agrees that, to the extent notice of sale shall be required
by law, at least ten days' notice to the Pledgor of the time and place
of any public or private sale is to be made shall constitute reasonable
notification. The Lender shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The Lender
may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was
so adjourned. To the extent permitted by law, the Pledgor hereby waives
any claim against the Lender arising by reason of the fact that the
price at which any Collateral may have been sold at such a private sale
was less than the price that might have been obtained at a public sale,
even if the Lender accepts the first offer received and does not offer
such Collateral to more than one offeree.
(b) The Pledgor hereby expressly waives, to the fullest
extent permitted by applicable law, any and all notices,
advertisements, hearings or process of law in connection with the
exercise by the Lender of any of its rights and remedies during the
continuance of a Default.
(c) Each purchaser at any sale pursuant to CLAUSE (a)
above, shall hold the property sold absolutely free from any claim or
right on the part of the Pledgor, and the Pledgor hereby waives (to the
extent permitted by law) all rights of redemption, stay and/or
appraisal which it now has or may at any time in the future have under
any rule of law or statute now existing or hereafter enacted.
(d) Any proceeds of any of the Collateral may be applied
by the Lender to the payment of expenses in connection with the
Collateral, including, without limitation, reasonable attorneys' fees
and legal expenses, and any balance of such proceeds may be applied by
the Lender against, all or any part of the Obligations in such order as
the
6
Lender shall elect. Any surplus of such cash or cash proceeds held by
the Lender and remaining after payment in full of all the Obligations
shall be paid over to the Pledgor or to any other Person that may be
lawfully entitled to receive such surplus.
(e) The Lender may exercise any and all rights and
remedies of the Pledgor in respect of the Collateral.
(f) All payments received by the Pledgor after the
occurrence and during the continuance of a Default in respect of the
Collateral shall be received in trust for the benefit of the Lender,
shall be segregated from other funds of the Pledgor and shall be
forthwith paid over to the Lender in the same form as so received (with
any necessary endorsement).
(g) The Lender is hereby authorized to comply with any
limitation or restriction in connection with any sale of Collateral as
it may be advised by counsel is necessary in order to (i) avoid any
violation of applicable law (including, without limitation, compliance
with such procedures as may restrict the number of prospective bidders
and purchasers and/or further restrict such prospective bidders or
purchasers to persons or entities 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 (ii) obtain
any required approval of the sale or of the purchase by any
governmental regulatory authority or official, and the Pledgor agrees
that such compliance shall not result in such sale being considered or
deemed not to have been made in a commercially reasonable manner and
that the Lender shall not be liable or accountable to the Pledgor for
any discount allowed by reason of the fact that such Collateral is sold
in compliance with any such limitation or restriction.
13. AMENDMENTS. ETC. WITH RESPECT TO THE OBLIGATIONS:
WAIVER OF RIGHTS. The Pledgor shall remain obligated hereunder notwithstanding
that, without any reservation of rights against the Pledgor and without notice
to or further assent by the Pledgor, any demand for payment of any of the
Obligations made by the Lender may be rescinded by such party and any of the
Obligations continued, and the Obligations, or the liability of any other party
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Lender, and the Credit Agreement, the other Loan
Documents, and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole or in
part, as the Lender may deem advisable from time to time, and any collateral
security, guarantee or right of offset at any time held by the Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Lender shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the
Obligations or for this Pledge Agreement or any property subject thereto.
14. CONTINUING SECURITY INTEREST: ASSIGNMENTS UNDER THE
CREDIT AGREEMENT. This Pledge Agreement shall create a continuing security
interest in the Collateral and, unless released as contemplated by Section 9(b),
shall (a) remain in full force and effect until the termination of the
Obligations, (b) be binding upon the Pledgor, its successors and assigns and
7
(c) inure, together with the rights and remedies of the Lender and its
successors, transferees and assigns.
15. REINSTATEMENT. This Pledge Agreement shall continue
to be effective, or be reinstated, as the case may be, if at any time payment,
or any part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Pledgor, all as though such payments had
not been made.
16. NOTICES. All notices, requests and demands pursuant
hereto shall be made in accordance with Section 7.3 of the Credit Agreement.
17. COUNTERPARTS. This Pledge Agreement may be executed
on separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
18. SEVERABILITY. Any provision of this Pledge 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.
19. INTEGRATION. This Pledge Agreement represents the
agreement of the Pledgor with respect to the subject matter hereof and there are
no promises or representations by the Lender relative to the subject matter
hereof not reflected herein or in the other Loan Documents.
20. AMENDMENTS IN WRITING: NO WAIVER: CUMULATIVE
REMEDIES. (a) None of the terms or provisions of this Pledge Agreement may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed by the Pledgor and the Lender.
(b) The Lender shall not by any act (except by a written
instrument pursuant to SECTION 20(a)), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to
have acquiesced in any 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 Lender, 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 Lender of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy
that the Lender 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.
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21. SECTION HEADINGS. The Section headings used in this
Pledge Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof
22. SUCCESSORS AND ASSIGNS. This Pledge Agreement shall
be binding upon the successors and assigns of the Pledgor and shall inure to the
benefit of the Lender and its successors and assigns, except that the Pledgor
may assign, transfer or delegate any of its rights or obligations under this
Pledge Agreement without the prior written consent of the Lender.
23. WAIVER OF JURY TRIAL. THE PLEDGOR HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS PLEDGE AGREEMENT, ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
24. GOVERNING LAW. THIS PLEDGE AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF
ILLINOIS.
25. ACTIONS REQUIRING APPROVAL. (a) Notwithstanding
anything to the contrary contained in this Pledge Agreement or any of the
documents executed pursuant hereto, the Lender will not take any action pursuant
to this Pledge Agreement, or any such documents, which would constitute or
result in a direct or indirect change of control of any Issuers (including any
direct or indirect voting or act transferring control of any Pledged Shares)
without first obtaining the approval (or an exemption from the requirement to
obtain such approval) of the applicable regulatory authority for such Issuers,
if such approval is required by such regulatory authority.
(b) If a Default shall have occurred and be continuing,
the Pledgor shall take any action which the Lender may request in the
exercise of its rights and remedies under this Pledge Agreement in
order to transfer or assign the Collateral to the Lender or to such one
or more third parties as the Lender may designate, or to a combination
of the foregoing. To enforce the provisions of this SECTION 25, the
Lender is empowered to seek from any governmental authority, to the
extent required, consent to or approval of any involuntary transfer of
control of any entity whose Collateral is subject to this Pledge
Agreement for the purpose of seeking a bona fide purchaser to whom
control will ultimately be transferred. The Pledgor agrees to cooperate
with any such purchaser and with the Lender in the preparation,
execution and filing of any forms and providing any information that
may be necessary or helpful in obtaining any applicable governmental
authority's consent to the assignment to such purchaser of the
Collateral. The Pledgor hereby agrees to consent to any such
involuntary transfer of control upon the request of the Lender after
and during the continuation of a Default and, without limiting any
rights of the Lender under this Pledge Agreement, to authorize the
Lender to nominate a trustee or receiver to assume control of the
Collateral, subject only to required judicial or other consent required
by governmental authorities, in order to effectuate the transactions
contemplated in this SECTION 25. Such trustee or receiver shall have
all the rights and powers as provided to it by law or court order, or
to the Lender under this Pledge
9
Agreement. The Pledgor shall cooperate fully in obtaining the approval
or consent of each governmental authority required to effectuate the
foregoing.
(c) If a Default shall have occurred and be continuing,
the Pledgor shall use its best efforts to assist in obtaining consent
or approval of any governmental authority, if required, for any action
or transactions contemplated by this Pledge Agreement, including,
without limitation, the preparation, execution and filing of the
transferor's or assignor's portion of any application or applications
for consent to the transfer of control or assignment necessary or
appropriate under applicable rules and regulations for approval of the
transfer or assignment of any portion of the Collateral.
[Signatures Follow on Next Page]
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IN WITNESS WHEREOF, each of the undersigned has caused this Pledge
Agreement to be duly executed and delivered by its duly authorized officer as of
the day and year first above written.
AMERICAN COUNTRY HOLDINGS INC.
By:
-----------------------------------------------
Title:
-----------------------------------------
THE NORTHERN TRUST COMPANY
By:
-----------------------------------------------
Title:
-----------------------------------------
11
SCHEDULE 1
TO THE PLEDGE AGREEMENT
STOCK
CLASS OF STOCK/ STOCK CERTIFICATE NUMBER OF PERCENTAGE OF OUTSTANDING
ISSUER PAR VALUE NO(S) SHARES SHARES/INTEREST
-------------------------------------------- ---------------- ----------------- --------- -------------------------
American Country Insurance Company Common $1.00 1,000,000 1 20%
-------------------------------------------- ---------------- ----------------- --------- -------------------------
American Country Insurance Company Common $1.00 4,000,000 2 80%
-------------------------------------------- ---------------- ----------------- --------- -------------------------
America Country Financial Services Corp. Common No par 1,000 1 100%
-------------------------------------------- ---------------- ----------------- --------- -------------------------
12
