STOCK PLEDGE AGREEMENT
Exhibit 10.17
This Stock Pledge Agreement (this “Agreement”) is made effective as of the 30th day of March,
2006 (the “Effective Date”) by and between Brandywine Insurance Holdings, Inc., a Delaware
corporation (“Pledgor”) and Brooke Credit Corporation, a Kansas corporation (“Pledgee”).
RECITALS
A. Pledgor owns 100% of the issued and outstanding capital stock of Guarantee
Insurance Company, a South Carolina domiciled insurance company (“GIC”) (the “Shares”).
B. Pledgee has agreed to make a loan to Pledgor, SunCoast Holdings, Inc., a
Delaware corporation, and Patriot Risk Services, Inc., a Delaware corporation (collectively,
the
“Borrowers”) (the “Loan”) pursuant to that certain promissory note (the “Note”) of even date
herewith made payable by Borrowers to Pledgee in the principal amount of $8,652,000 and the
related loan documents. The Note, together with this Agreement and all other loan agreements,
security agreements, guaranties, pledge agreements and all other documents and instruments
that
evidence and/or secure the Loan are referred to herein as the “Loan Documents.”
C. Pledgor agreed to pledge the Pledged Shares (as defined below) to Pledgee to
secure Borrowers’ obligations under the Loan Documents.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions. The following terms when used hereinafter shall have the following
meaning:
(a) The term “Pledged Shares” means the Shares and any other stock
(whether common, preferred or otherwise) or other securities of GIC in which Pledgor at
any time has an interest, all whether now owned or at any time hereafter acquired.
(b) The term “Obligations” means (i) the timely, full and complete payment
by Borrowers when due of all amounts due under the Note, (ii) the timely, full and
complete performance by Borrowers of all of their obligations, liabilities and
indebtedness under the Loan Documents, and (iii) the timely, full and complete
performance by Pledgor of all of its obligations under this Agreement.
(c) The term “Event of Default,” as used in this Agreement, means (i) any
Event of Default as defined in any of the Loan Documents, (ii) the nonperformance or
breach by Pledgor of any provision of this Agreement, (iii) the nonperformance or
breach
by either of the Borrowers of any provision of any of the Loan Documents, or (iv) the failure of
the Pledged Shares to constitute at least 100% of the capital stock of GIC.
2. Pledge.
(a) As security for the payment and performance of the Obligations, Pledgor
hereby pledges to Pledgee the Pledged Shares and grants Pledgee a first priority lien and
security interest therein. Upon the execution of this Agreement, Pledgor shall deliver to
Pledgee the original certificate(s) representing the Pledged Shares, together with duly
executed forms of assignment sufficient to transfer title thereto to Pledgee.
(b) If, while this Agreement is in effect, Pledgor becomes entitled to receive
or receives any securities or other property in addition to, in substitution of, or in
exchange for any of the Pledged Shares (whether as a dividend or a distribution, and
whether in connection with any merger, recapitalization, reorganization, or
reclassification or otherwise), Pledgor shall accept such securities or other property on
behalf of and for the benefit of Pledgee as additional security for the Obligations and
shall promptly deliver such additional security to Pledgee, together with duly executed
forms of assignment, and such additional security shall be deemed for all purposes to be
part of the Pledged Shares hereunder.
3. Rights of Pledgee.
(a) If any Event of Default occurs, then in addition to any other rights set forth herein,
Pledgee shall have all the rights of a secured creditor at law or in equity and under the Uniform
Commercial Code in effect at the time in the State of Kansas, including that Pledgee at its sole
option may without demand of performance or other demand, advertisement or notice of any kind
(except notice of the time and place of public or private sale to the extent required by
applicable law) to or upon Pledgor or any other person (all of which are, to the extent permitted
by law, hereby expressly waived), immediately take any one or more of the following actions:
(i) realize upon the Pledged Shares or any part thereof and retain ownership of such
Pledged Shares, provided that Pledgee complies with all required regulatory approvals in
connection therewith; or
(ii) realize upon the Pledged Shares or any part thereof and sell or otherwise
dispose of and deliver the Pledged Shares or any part thereof or interest therein, in one
or more lots and at such prices and on such terms as Pledgee may deem best, provided that
Pledgee complies with all required regulatory approvals in connection therewith; or
(iii) proceed by a suit at law or in equity to foreclose this Agreement and sell the
Pledged Shares, or any portion thereof, under a judgment or decree of a court of
competent jurisdiction; or
(iv) proceed against Pledgor for money damages.
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(b) Should Pledgee choose to sell or otherwise dispose of the Pledged Shares following
an Event of Default, the proceeds of any such disposition or other action by Pledgee shall
be applied as follows:
(i) first, to the costs and expenses incurred in connection therewith or
incidental thereto or to the care or safekeeping of any of the Pledged Shares or
in any way relating to the rights of Pledgee hereunder, including reasonable
attorneys’ fees and legal expenses;
(ii) second, to the satisfaction of the Obligations;
(iii) third, to the payment of any other amounts required by applicable law;
and
(iv) fourth, to Pledgor to the extent of any surplus proceeds.
4. Transfers and Other Liens. Pledgor hereby represents and warrants to Pledgee
that Pledgor has good and valid title to the Shares, free and clear of all liens, security
interests
and encumbrances (other than under this Agreement), and that, so long as the Obligations are
outstanding, the Pledged Shares shall constitute not less than 100% of the issued and
outstanding
capital stock of GIC. Pledgor hereby agrees that Pledgor will not:
(a) sell, transfer, or otherwise dispose of, or grant any option with respect to,
any of the Pledged Shares; or
(b) create or permit to exist any lien, security interest, or other charge or
encumbrance upon or with respect to any of the Pledged Shares, except for the security
interest under this Agreement.
5. Termination. Upon satisfaction of all the Obligations, including all costs and
expenses of Pledgee as provided herein, this Agreement shall terminate and Pledgee shall
surrender the Pledged Shares to Pledgor together with all forms of assignment.
6. Voting Rights and Distributions.
(a) So long as no Event of Default occurs, Pledgor shall be entitled to exercise
any and all voting rights pertaining to the Pledged Shares and shall be entitled to
receive
and retain any distributions paid or distributed in respect of the Pledged Shares.
(b) Upon the occurrence and during the continuance of an Event of Default,
all rights of Pledgor to exercise the voting rights or receive and retain distributions
that it
would otherwise be entitled to exercise or receive and retain shall cease, and all such
rights shall thereupon automatically become vested in Pledgee, who shall thereupon have
the sole right to exercise such voting rights and to receive and retain such
distributions.
To effectuate this, Pledgor shall execute the Proxy attached as Exhibit A
hereto, which is
fully incorporated herein, upon the execution of this Agreement. Pledgor shall execute
and deliver (or cause to be executed and delivered) to Pledgee any other proxies or
instruments as Pledgee may reasonably request for the purpose of enabling Pledgee to
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exercise the voting rights which it is entitled to exercise and to receive the
distributions that it is entitled to receive and retain pursuant to the preceding
sentence.
7. Further Assurances. Pledgor agrees that at any time and from time to time upon
the written request of Pledgee, Pledgor shall execute and deliver such further documents
(including UCC financing statements) and do such further acts and things as Pledgee may
reasonably request in order to effect the purposes of this Agreement. Pledgor hereby
authorizes
Pledgee to file all UCC financing statements necessary or desirable in order for Pledgee to
perfect its security interest in the Pledged Shares.
8. Amendments and Miscellaneous Waivers. Any provision of this Agreement may
be amended or waived if, but only if, such amendment or waiver is in writing and is signed by
Pledgor and Pledgee.
9. Severability. The provisions of this Agreement shall be deemed severable and the
invalidity, illegality or unenforceability of any one or more of the provisions contained
herein
shall not affect, invalidate or render unenforceable any other provision of this Agreement.
10. Binding Effect; Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs, executors, personal and
legal
representatives, successors and assigns. Pledgor shall not assign its rights under this
Agreement
without the prior written consent of Pledgee.
11. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Kansas without regard to principles of conflict of laws.
12. No Waiver; Cumulative Remedies. Pledgee shall not, by any act, delay,
omission, or otherwise, be deemed to have waived any of its rights or remedies hereunder, and
no waiver shall be valid unless in writing, signed by Pledgee, and then only to the extent
therein
set forth. A waiver by Pledgee of any right or remedy hereunder on any one occasion shall not
be construed as a bar to any right or remedy which Pledgee would otherwise have on any future
occasion. No failure to exercise nor any delay in exercising on the part of Pledgee, any
right,
power, or privilege hereunder shall preclude any other or further exercise thereof or the
exercise
of any other right, power, or privilege. The rights and remedies herein provided are
cumulative
and may be exercised singly or concurrently, and are not exclusive of any rights or remedies
provided by law.
13. Entire Agreement. This Agreement and the Loan Documents set forth all of the
provisions, agreements, conditions, understandings, representations and warranties among the
parties hereto with respect to the subject matter hereof, and supersede all prior agreements
or
understandings, written or oral, among the parties hereto, with respect to the matters set
forth
herein and therein.
14. Counterparts; Telefacsimile Execution. This Agreement may be executed in one
or more counterparts, each of which will be deemed an original and all of which together will
constitute one and the same Agreement. Delivery of an executed counterpart of this Agreement
by telefacsimile will be equally as effective as delivery of an original executed counterpart
of
this Agreement. Any party delivering an executed counterpart of this Agreement by
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telefacsimile also will deliver an original executed counterpart of this Agreement but the failure
to deliver an original executed counterpart will not affect the validity, enforceability, or
binding effect hereof.
15. Waiver of Jury Trial. PLEDGOR AND PLEDGEE HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS, PLEDGOR AND PLEDGEE REPRESENT THAT EACH HAS
REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED
AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day
and year first above written.
| PLEDGOR: Brandywine Insurance Holdings, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| PLEDGEE: Brooke Credit Corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | President | |||
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