Exhibit 10.44
FORM OF
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT ("this Agreement"), dated
as of December __, 2003, is between ___________________________, a ____________
("Grantor"), and NATIONAL CITY BANK ("Agent").
RECITALS
Grantor has entered into that certain Credit and Security
Agreement, dated as of the date hereof, among the Ceres Group, Inc. (the
"Borrower"), the Subsidiary Guarantors which are a party thereto, the lenders
listed on the signature pages thereto (the "Lenders"), and the Agent (as it may
from time to time be amended or otherwise modified or supplemented, the "Credit
Agreement"; capitalized terms used in this Agreement without definition have the
meanings ascribed to such terms in the Credit Agreement), pursuant to which the
Lenders have made certain loans available to the Borrower. It is a condition
precedent to the making of loans to the Borrower that Grantor grants to the
Agent for the benefit of the Lenders the security interest contemplated by this
Agreement.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Agent and the Lenders to make loans to the Borrower under the
Credit Agreement, Grantor hereby agrees with the Agent as follows:
1. Grant of Security. Grantor hereby assigns and pledges to
the Agent, and grants to the Agent, for the ratable benefit of the Lenders, a
security interest in, all of the right, title and interest of Grantor in and to
the following, whether now owned or hereafter acquired (the "Collateral"):
i. All of the shares of capital stock and limited liability
company interests ("Pledged Shares") described in Schedule I, as
Schedule I may be amended from time to time, issued by Subsidiaries of
Grantor to the Grantor, and the certificates representing the Pledged
Shares, and all dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of
or in exchange for any or all of the Pledged Shares; and
ii. All shares of capital stock of or limited liability
company interests in (i) any Person, other than a Regulated Insurance
Company, that after the Closing Date, becomes a Subsidiary of the
Borrower or a Subsidiary Guarantor or (ii) any issuer of Pledged Shares
acquired by the Borrower or any Subsidiary Guarantor after the Closing
Date (the "Additional Pledged Shares"), from time to time acquired by
Grantor in any manner, and the certificates representing such
Additional Pledged Shares, and all dividends, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
such Additional Pledged Shares; and
iii. All Proceeds of any and all of the foregoing Collateral.
Upon acquisition, the Grantor will deliver all certificates representing or
evidencing any Additional Pledged Stock and deliver an amendment to Schedule I
to this Agreement or such other documentation reasonably requested by the Agent.
2. Security for Secured Obligations. This Agreement, the
Credit Agreement and the Collateral hereunder secures the payment of the Secured
Obligations.
3. Duties of Agent. The powers conferred on Agent and the
Lenders hereunder or under the Credit Agreement are solely to protect such
parties' interest in the Collateral and shall not impose any duty to exercise
any such powers. Except for the safe custody of any Collateral in its
possession, neither the Agent nor the Lenders shall have any duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral. Agent and the
Lenders shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which each of the Agent or the Lenders,
accords its own property, it being understood that Agent and each Lender shall
not have any responsibility or liability for (i) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Collateral, whether or not Agent or any Lender has or is
deemed to have knowledge of such matters, (ii) taking any necessary steps to
preserve rights against any parties with respect to any Collateral, or (iii) the
collection of any proceeds of any Collateral.
4. Security Interest Absolute. All rights of Agent and the
Lenders and security interests hereunder, and all obligations of Grantor
hereunder, shall be absolute and unconditional, irrespective of:
(A) any lack of validity or enforceability of the Credit
Agreement, any other Loan Documents or any other agreement or instrument
evidencing all or any part of the Obligations;
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations or any other
amendment or waiver of or any consent to any departure from the Credit Agreement
or any other Loan Document;
(C) the absence of any attempt to collect the Secured
Obligations from any guarantor or other action to enforce the same;
(D) the waiver or consent by Agent or any Lender with respect
to any provision of any instrument evidencing the Secured Obligations;
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(E) failure by Agent to take any steps to perfect and maintain
its security interest in, or preserve its rights to, any collateral for the
Secured Obligations;
(F) Agent's or any Lender's election in any proceeding
instituted under Title 11 of the United States Code (the "Bankruptcy Code"), of
the application of Section 1111(b)(2) of the Bankruptcy Code;
(G) any borrowing or grant of a security interest under
Section 364 of the Bankruptcy Code;
(H) any exchange, release or non-perfection of any other
collateral; or
(I) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, Grantor.
5. Release of Pledged Shares. This Agreement and the security
interest granted hereunder shall terminate upon the payment in full of the
Secured Obligations. Upon the termination of this Agreement, the Agent will
release the security interests created hereunder and, if it then has possession
of the Pledged Shares and Additional Pledged Shares, shall deliver such Pledged
Share and Additional pledged Shares to the Grantor.
6. Limitations on Remedies Imposed by Insurance Laws.
Notwithstanding the provisions of this Agreement or the Credit Agreement, any
exercise of ownership, voting, transfer or other rights with respect to the
Pledged Shares and the Additional Pledged Shares constituting capital stock or
other direct or indirect interest in a Regulated Insurance Company shall be
subject, to the extent required by law, to the obtaining of any prior consent of
any insurance regulatory authority having jurisdiction over such Regulated
Insurance Company.
7. Credit Agreement Terms. The terms and provisions of the
Credit Agreement apply to this Agreement and are incorporated herein by
reference, including, without limitation, the remedies granted to the Agent and
the Lenders.
IN WITNESS WHEREOF, Grantor has caused this Agreement to be
duly executed and delivered as to the date first above written.
[NAME OF GRANTOR]
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By:
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Its:
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Accepted in ____________________, Ohio,
as of the ___ day of December, 2003.
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NATIONAL CITY BANK.
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By:
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Its:
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SCHEDULE I
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Pledge and Security Agreement
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Pledged Shares Owned and Pledged by Grantor
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Stock Certificate
Stock Issuer Number of Shares Class of Stock No(s).
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