PLEDGE AGREEMENT
Exhibit 10.3
THIS PLEDGE AGREEMENT (this “Agreement”) is made as of the 17th day of July, 2009, by and
between ASSURANCEAMERICA CORPORATION, a Georgia corporation (the “Pledgor”) and WACHOVIA BANK,
NATIONAL ASSOCIATION (the “Bank”). Unless otherwise defined herein or if the context clearly
requires to the contrary, any capitalized term used herein but not defined shall have the meaning
ascribed to such term in that certain Loan Agreement dated as of even date herewith among Bank and
Pledgor, as Borrower therein (as amended from time to time, the “Loan Agreement”).
In consideration of the mutual covenants and agreements contained in this Agreement and other
good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Pledgor
hereby agrees with Bank as follows:
SECTION 1. Pledge. As collateral security for payment in full of the Obligations,
Pledgor hereby pledges, hypothecates, collaterally assigns and delivers unto Bank, and grants to
Bank a lien on, upon, and in all of the following: (a) the securities, investment properties and
general intangibles listed on Exhibit A attached hereto (and as supplemented from time to time in
connection with a Permitted Acquisition (as defined in the Loan Agreement)), the proceeds thereof
and any earnings thereon, and (b) any cash, options, instruments, shares or securities, dividends,
distributions, rights or other property at any time and from time to time receivable or otherwise
distributable in respect of, in exchange for, or in substitution of, any and all such securities
described in clause (a), together with the proceeds thereof (all of the foregoing being
hereinafter collectively called the “Pledged Collateral”). Upon the execution hereof, (i) any
securities, investment properties and general intangibles now or hereafter included in the Pledged
Collateral (hereinafter called the “Pledged Securities”) shall be accompanied by duly executed
transfer powers, as applicable, in blank and by such other instruments or documents as Bank or its
counsel may reasonably request, and (ii) all other property comprising part of the Pledged
Collateral (so long as an LLC [defined in Exhibit A] has not opted in to Article 8 of the Uniform
Commercial Code in effect from time to time in the state of Delaware, such property of such LLC
shall exclude certificates evidencing the Pledged Collateral) shall be delivered to Bank and
accompanied by proper instruments of assignment duly executed by Pledgor and by such other
instruments or documents as Bank or its counsel may reasonably request. At any time after an Event
of Default, Bank, at its option, may have any and all Pledged Securities registered in its name or
that of its nominee, and Pledgor hereby covenants that, upon Bank’s request, Pledgor will cause
the issuer of the Pledged Securities to effect such registration. Each schedule so delivered shall
supersede any prior schedules so delivered.
TO HAVE AND TO HOLD the Pledged Collateral, together with all rights, titles, interests,
powers, privileges and references pertaining or incidental thereto, unto Bank, its successors and
assigns, forever, subject, however, to the terms, covenants and conditions hereinafter set forth.
SECTION 2. Obligations Secured. This Agreement is made, and the security interest
created hereby is granted to Bank, to secure payment and performance in full of the Obligations.
SECTION 3. Representations and Warranties. Pledgor hereby represents and warrants
that, except for the lien granted to Bank and other liens permitted by the terms of Section 5.3 of
the Loan Agreement, Pledgor is the legal and equitable owner of the Pledged Collateral, holds the
same free and clear of all liens, and will make no voluntary assignment, pledge, mortgage,
hypothecation or transfer of the Pledged Collateral during the term of this Agreement; that Pledgor
has good right and legal authority to pledge the Pledged Collateral in the manner hereby done or
contemplated and will defend its title thereto against the claims of all persons whomsoever and
that no consent or approval of any
Governmental Authority, or of any securities exchange, was or is necessary to the validity of such
pledge which has not been obtained; and that the pledge of the Pledged Collateral is effective to
vest in Bank the rights of Pledgor in the Pledged Collateral as set forth herein.
SECTION 4. No Options or Rights. Pledgor agrees that, until the Obligations (other
than Cash Management Obligations that continue after the termination of the Loan Facility) have
been satisfied in full, no options or rights in respect of the Pledged Collateral shall be granted
by Pledgor without the prior approval of Bank.
SECTION
5. Voting Rights; Distributions; Etc.
(a) So long as no Event of Default shall have occurred:
(i) Pledgor shall be entitled to exercise any and all voting and/or consensual rights
and powers accruing to an owner of the Pledged Securities or any part thereof for any
purpose not inconsistent with the terms of this Agreement or any Loan Document;
provided, however, that Pledgor shall not exercise, or refrain from
exercising, any such right or power if any such action would have a material adverse effect
on the value of such Pledged Securities or any part thereof or on the rights and interests
of Bank hereunder with respect to the Pledged Securities;
(ii) Pledgor shall be entitled to retain and use any and all cash distributions paid on
Pledged Securities, but any and all stock and/or liquidating distributions, other
distributions in property, return of capital or other distributions made on or in respect of
Pledged Securities, whether resulting from a subdivision, combination or reclassification of
outstanding capital stock of any corporation the capital stock of which is pledged hereunder
or received in exchange for Pledged Securities or any part thereof or as a result of any
merger, consolidation, acquisition or other exchange of assets or on the liquidation,
whether voluntary or involuntary, of any issuer of the Pledged Securities, or otherwise,
shall be and become part of the Pledged Collateral pledged hereunder and, if received by
Pledgor, shall forthwith be delivered to Bank to be held as collateral subject to the terms
of this Agreement; and
(iii) Bank shall execute and deliver to Pledgor, or cause to be executed and delivered
to Pledgor, as appropriate, all such proxies, powers of attorney, distribution orders and
other instruments as Pledgor may reasonably request for the purpose of enabling Pledgor to
exercise the voting and/or consensual rights and powers which Pledgor is entitled to
exercise pursuant to Subparagraph (a)(i) above and/or to receive the distributions which
Pledgor is authorized to retain pursuant to Subparagraph (a)(ii) above.
(b) Upon (i) the occurrence and during the continuance of an Event of Default and (ii) five
(5) days prior written notice to the Pledgor, all rights of Pledgor to exercise the voting
and/or consensual
rights and powers which Pledgor is entitled to exercise pursuant to Subparagraph (a)(i) above
and/or to
receive the distributions which Pledgor is authorized to receive and retain pursuant to
Subparagraph (a)(ii)
above shall cease, and all such rights thereupon shall become vested in Bank, which shall have
the sole
and exclusive right and authority to exercise such voting and/or consensual rights and powers
which
Pledgor shall otherwise be entitled to exercise pursuant to Subparagraph (a)(i) above and/or
to receive and
retain the distributions which Pledgor shall otherwise be authorized to retain pursuant to
Subparagraph
(a)(ii) above. Any and all money and other property paid over to or received by Bank
pursuant to the
provisions of this Paragraph (b) shall be retained by Bank as additional collateral hereunder
and shall be
applied in accordance with the provisions of Section 9 hereof.
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SECTION 6. Remedies upon Default. If an Event of Default shall have occurred, Bank may
continue to hold the Pledged Collateral for its own account and may, with prior notice to Pledgor,
sell, assign, transfer, endorse and deliver the whole or, from time to time, any part of the
Pledged Collateral at public or private sale or on any securities exchange, for cash, upon credit
or for other property, for immediate or future delivery, and for such price or prices and on such
terms as Bank, in its sole discretion, shall deem appropriate. Bank shall be authorized at any sale
(if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons
who will represent and agree that they are purchasing the Pledged Collateral for their own account
in compliance with the Securities Act of 1933, as amended, and upon consummation of any such sale,
Bank shall have the right to assign, transfer, endorse and deliver to the purchaser or purchasers
thereof the Pledged Collateral so sold. Each such purchaser at any such sale shall hold the
property sold absolutely free from any claim or right on the part of Pledgor, and Pledgor hereby
waives (to the extent permitted by law) all rights of redemption, stay and/or appraisal which
Pledgor now has or may at any time in the future have under any rule of law or statute now existing
or hereafter enacted. Bank shall give Pledgor ten (10) days’ written notice (which Pledgor agrees
is reasonable notification within the meaning of Section 9-504(3) of the Uniform Commercial Code)
of Bank’s intention to make any such sale. Such notice, in case of public sale, shall state the
time and place for such sale, and, in the case of sale on a securities exchange, shall state the
exchange at which such sale is to be made and the day on which the Pledged Collateral, or portion
thereof, will first be offered for sale at such exchange. Any such public sale shall be held at
such time or times within ordinary business hours and at such place or places at the Bank may fix
and shall state in the notice or publication (if any) of such sale. At any such sale, the Pledged
Collateral, or portion thereof to be sold, may be sold in one lot as an entirety or in separate
parcels, as Bank may (in its sole and absolute discretion) determine. Bank shall not be obligated
to make any sale of the Pledged Collateral if it shall determine not to do so, regardless of the
fact that notice of sale of the Pledged Collateral may have been given. Bank may, without notice or
publication, adjourn any public or private sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for sale, and such sale may, without further notice, be
made at the time and place to which the same was so adjourned. In case sale of all or any part of
the Pledged Collateral is made on credit or for future delivery, the Pledged Collateral so sold may
be retained by Bank until the sale price is paid by the purchaser or purchasers thereof, but Bank
shall not incur any liability in case any such purchaser or purchasers shall fail to take up and
pay for the Pledged Collateral so sold and, in case of any such failure, such Pledged Collateral
may be sold again upon like notice. At any public sale made pursuant to this Agreement, Bank may
bid for or purchase, free from any right of redemption, stay and/or appraisal on the part of
Pledgor (all said rights being also hereby waived and released to the extent permitted by law), any
part of or all the Pledged Collateral offered for sale and may make payment on account thereof by
using any claim then due and payable to Bank from Pledgor as a credit against the purchase price,
and Bank may, in compliance with the terms of sale, hold, retain and dispose of such property
without further accountability to Pledgor thereof. As an alternative to exercising the power of
sale herein conferred upon it, Bank, at its option, may proceed by suit or suits at law or in
equity to foreclose this Agreement and sell the Pledged Collateral or any portion thereof pursuant
to judgment or decree of a court or courts of competent jurisdiction. Any sale pursuant to this
Section 6 shall conform to commercially reasonable standards as provided in Section 9-504(3) of the
Uniform Commercial Code.
SECTION 7. Bank Appointed Attorney-in-Fact. Pledgor constitutes and appoints Bank the
attorney-in-fact for Pledgor for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instrument which Bank may deem necessary or advisable to
accomplish the purposes hereof, which appointment is irrevocable and coupled with an interest;
provided, that Bank shall only exercise its power pursuant to this Section 7 if, and only if, an
Event of Default has occurred and is continuing. Without limiting the generality of the foregoing,
Bank shall have the right, after the occurrence of an Event of Default, with full power of
substitution, either in Bank’s name or in the name of Pledgor, to ask for, demand, xxx for,
collect, receive, receipt and give acquittance for any and all moneys due or to become due under
and by virtue of any Pledged Collateral, to endorse checks, drafts, orders and
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other instruments for the payment of money payable to Pledgor, representing any interest or
dividend or other distribution payable in respect of the Pledged Collateral or any part thereof or
on account thereof, and to give full discharge for the same, to settle, compromise, prosecute, or
defend any action, claim or proceeding with respect thereto, and to sell, assign, endorse, pledge,
transfer and make any agreement respecting, or otherwise deal with, the same; provided,
however, that nothing herein contained shall be construed as requiring or obligating Bank
to make any commitment or to make any inquiry as to the nature or sufficiency of any payment
received by it, or to present or file any claim or notice, or to take any action with respect to
the Pledged Collateral or any part thereof or the moneys due or to become due in respect thereof
or any property covered thereby, and no action taken by Bank or omitted to be taken with respect
to the Pledged Collateral or any part thereof shall give rise to any defense, counterclaim or
offset in favor of Pledgor or to any claim or action against Bank.
SECTION 8. Application of Proceeds of Sale and Cash. The proceeds of any sale of the
whole or any part of the Pledged Collateral, together with any other moneys held by Bank under the
provisions of this Agreement, shall be applied by Bank as follows:
First: to the payment of all costs and expenses incurred by Bank in connection
herewith, including but not limited to, all court costs and the fees and disbursements of
counsel for Bank in connection herewith, and to the repayment of all advances made by Bank
hereunder for the account of Pledgor, and the payment of all costs and expenses paid or
incurred by Bank in connection with the exercise of any right or remedy hereunder; and
Second: to the payment in full of all other Obligations.
Any amounts remaining after such application shall be promptly remitted to Pledgor, Pledgor’s
successors, legal representatives, or assigns, or as otherwise provided by law. Bank shall have
absolute discretion as to the time of application of any proceeds in accordance with this
Agreement.
SECTION 9. Specific Performance; Injunctive Relief. Pledgor acknowledges that a breach
of any of the provisions contained in this Agreement may cause irreparable injury to Bank; that
Bank will have no adequate remedy at law with respect to such breach; and that, as a consequence,
Pledgor’s obligations hereunder shall be specifically enforceable against Pledgor and that Bank
shall be entitled to injunctive relief as a remedy for such breach.
SECTION 10. Additional Rights and Remedies. The rights and remedies provided in this
Agreement and in all other agreements, instructions or documents delivered pursuant hereto are
cumulative and are in addition to any rights or remedies provided by law, including, without
limitation, the rights and remedies of a secured party under the Uniform Commercial Code.
SECTION 11. Further Assurances. Pledgor covenants and agrees that, at Pledgor’s cost
and expense, upon request of Bank, Pledgor shall duly execute and deliver, or cause to be duly
executed and delivered, to Bank such further instruments and do and cause to be done such further
acts as may be reasonably necessary or proper to carry out more effectively the provisions and
purposes of this Agreement.
SECTION 12. Indemnity. Pledgor hereby agrees to indemnify Bank and its officers,
directors, agents, and attorneys (each, an “Indemnified Person”) against, and to hold Bank and all
such other Indemnified Persons harmless from all losses resulting from any representation or
warranty made by Pledgor or on Pledgor’s behalf pursuant to this Agreement having been false when
made, or resulting from Pledgor’s breach of any of the covenants set forth in this Agreement,
which indemnification is in addition to, and not in derogation of, any statutory, equitable, or
common law right or remedy Bank may
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have for breach of representation, warranty, statement or covenant or otherwise may have under any
of the Loan Documents; provided, however, Pledgor shall have no obligation hereunder to any
Indemnified Person with respect to any losses to the extent arising from the bad faith, gross
negligence or willful misconduct of such Indemnified Person, as determined by a court of competent
jurisdiction in a final, non-appealable judgment. This agreement of indemnity shall be a continuing
agreement and shall survive payment of the Obligations and termination of this Agreement.
SECTION 13. Enforcement and Waiver by Bank. Bank shall have the right at all times to
enforce the provisions of this Agreement in strict accordance with the terms hereof,
notwithstanding any conduct or custom on the part of Bank in refraining from so doing at any time
or times. The failure of Bank at any time or times to enforce its rights under such provisions,
strictly in accordance with the same, shall not be construed as having created a custom in any way
or manner contrary to specific provisions of this Agreement or as having in any way or manner
modified or waived the same. All rights and remedies of Bank are cumulative and concurrent and the
exercise of one right or remedy shall not be deemed a waiver or release of any other right or
remedy.
SECTION 14. Expenses of Bank. Pledgor will, on demand, reimburse Bank for all actual
and reasonable expenses incurred by Bank in connection with the preparation, administration,
amendment, modification or enforcement of this Agreement and/or in the collection of any amounts
owing from Pledgor or any other person or entity to Bank under this Agreement and, until so paid,
the amount of such expenses shall be added to and become part of the amount of the Obligations.
SECTION 15. Attorneys’ Fees. If at any time or times hereafter Bank employs counsel
to advise or provide other representation with respect to this Agreement or any other agreement,
document or instrument heretofore, now or hereafter executed by Pledgor and delivered to Bank with
respect to the Obligations, or to commence, defend or intervene, file a petition, complaint,
answer, motion or other pleadings or to take any other action in or with respect to any suit or
proceeding relating to this Agreement or any other agreement, instrument or document heretofore,
now or hereafter executed by Pledgor and delivered to Bank with respect to the Obligations, or to
represent Bank in any litigation with respect to the affairs of Pledgor, or to enforce any rights
of Bank or obligations of Pledgor or any other Person which may be obligated to Bank by virtue of
this Agreement or any other agreement, document or instrument heretofore, now or hereafter
delivered to Bank by or for the benefit of Pledgor with respect to the Obligations, or to collect
from Pledgor any amounts owing hereunder, then in any such event, all of the reasonable attorneys’
fees actually incurred by Bank arising from such services and any actual expenses, costs and
charges relating thereto shall constitute additional obligations of Pledgor payable on demand and,
until so paid, shall be added to and become part of the Obligations.
SECTION 16. Notices. All notices and other communications from either party to the
other hereunder shall be given and deemed received when given in accordance with the terms of the
Loan Agreement, and at the addresses specified in the Loan Agreement.
SECTION 17. Governing Law. This Agreement shall be deemed a contract made under the
laws of the State of Georgia and shall be governed by and construed in accordance with the laws of
the State of Georgia (excluding its conflict of laws provisions if such provisions would require
application of the laws of another jurisdiction).
SECTION
19. BINDING ARBITRATION; PRESERVATION OF REMEDIES.
(a) Binding Arbitration. Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any claim or controversy between parties hereto arising
out of or relating to this Agreement shall be resolved by binding arbitration conducted under and
governed by the
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Commercial Financial Disputes Arbitration Rules (the “Arbitration Rules”) of the American
Arbitration Association (the “AAA”) and the Federal Arbitration Act. Disputes may include, without
limitation, tort claims, counterclaims, a dispute as to whether a matter is subject to
arbitration, claims brought as class actions, or claims arising from documents executed in the
future. A judgment upon the award may be entered in any court having jurisdiction.
(b) Special Rules. All arbitration hearings shall be conducted in the city named in the
address of Bank first stated above. A hearing shall begin within 90 days of demand for
arbitration and all
hearings shall conclude within 120 days of demand for arbitration. These time limitations
may not be
extended unless a party shows cause for extension and then for no more than a total of 60
days. The
expedited procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be applicable
to claims of
less than $1,000,000.00. Arbitrators shall be licensed attorneys selected from the Commercial
Financial
Dispute Arbitration Panel of the AAA. The parties do not waive applicable Federal or state
substantive
law except as provided herein.
(c) Preservation and Limitation of Remedies. Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve, without diminution, certain remedies
that any party
may exercise before or after an arbitration proceeding is brought. The parties shall have
the right to
proceed in any court of proper jurisdiction or by self-help to exercise or prosecute the
following remedies,
as applicable: (i) all rights to foreclose against any real or personal property or other
security by
exercising a power of sale or under applicable law by judicial foreclosure including a
proceeding to
confirm the sale; (ii) all rights of self-help including peaceful occupation of real property
and collection of
rents, set-off, and peaceful possession of personal property; (iii) obtaining provisional or
ancillary
remedies including injunctive relief, sequestration, garnishment, attachment, appointment of
receiver and
filing an involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by
confession of
judgment.
(d) Waiver of Jury Trial. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO
BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY
HAVE TO JURY TRIAL WITH REGARD TO A DISPUTE.
SECTION 19. Binding Effect, Assignment. This Agreement shall inure to the benefit of,
and shall be binding upon, the respective successors and permitted assigns of the parties hereto.
Pledgor does not have any right to assign any of its rights or obligations hereunder without the
prior written consent of Bank.
SECTION 20. Entire Agreement, Amendments. This Agreement and the documents executed
and delivered pursuant hereto, constitute the entire agreement between the parties, and may be
amended only by a writing signed on behalf of each party.
SECTION 21. Severability. If any provision of this Agreement shall be held invalid
under any applicable laws, such invalidity shall not affect any other provision of this Agreement
that can be given effect without the invalid provision, and, to this end, the provisions hereof
are severable
SECTION 22. Headings. The section and paragraph headings hereof are inserted for
convenience of reference only, and shall not alter, define, or be used in construing the text of
such sections and paragraphs.
SECTION 23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which together shall
constitute but one and the same instrument.
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SECTION 24. Seal. This Agreement is intended to take effect as an instrument under
seal.
SECTION 25. Termination. Upon indefeasible payment in full of all the principal,
interest and fees due with respect to the Loan Facility and termination of the Loan Facility, this
Agreement shall terminate and Bank agrees to promptly return any and all stock or membership
interest certificates in Bank’s possession, as applicable, to Pledgor. Upon termination of this
Agreement in accordance with its terms, the Bank agrees to take such actions as any Pledgor may
reasonably request, and at the sole cost and expense of such Pledgor, to evidence the termination
of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement to be executed
effective as of the date first above written.
| ASSURANCEAMERICA CORPORATION |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | XXXX X. XXXX | |||
| Title: | EVP | |||
| [SEAL] |
||||
| WACHOVIA BANK, NATIONAL ASSOCIATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement to be executed
effective as of the date first above written.
| ASSURANCEAMERICA CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [SEAL] |
||||
| WACHOVIA BANK, NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | SVP | |||
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EXHIBIT A
PLEDGED SECURITIES
One hundred percent (100%) of the Membership Interests of each of the following (collectively, the
“LLCs”): Trustway Insurance Agencies, LLC, a Delaware limited liability company and
AssuranceAmerica Managing General Agency LLC, a Delaware limited liability company (including but
not limited to all rights of Pledgor as a member of the LLCs whether arising under applicable law
or any agreement of the LLCs with Pledgor as a member of the LLCs, including but not limited to the
Operating Agreement of the LLCs), the proceeds thereof and any earnings thereon, and any cash,
options, instruments, shares or securities, dividends, distributions, rights or other property at
any time and from time to time receivable or otherwise distributable in respect of, in exchange
for, or in substitution of, any and all such securities, together with the proceeds thereof.
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