EXHIBIT 10.21
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of December 4, 1996 (this "Pledge
Agreement"), made by Associated Business & Commerce Holdings, Inc. ("Borrower")
to TIG Reinsurance Company ("Lender").
PRELIMINARY STATEMENTS. 1. Reference is made to the Term Loan Agreement
dated as of December 4, 1996 between Borrower and Lender (the Term Loan
Agreement, as it may hereafter be amended or otherwise modified from time to
time, being the "Term Loan Agreement"). The terms defined in the Term Loan
Agreement and not otherwise defined in this Pledge Agreement which are used in
this Pledge Agreement shall have the meanings set forth in the Term Loan
Agreement.
2. It is a condition precedent to the obligation of Lender to make the
Term Loan to Borrower as provided in the Term Loan Agreement that Borrower shall
have granted the security interest contemplated by this Pledge Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
Lender to make the Term Loan under and in accordance with the terms of the Term
Loan Agreement, Borrower hereby agrees as follows:
SECTION 1. PLEDGE. Borrower hereby pledges and grants a continuing
security interest to Lender in all of the following (the "Pledged Collateral"):
(a) all of the stock described in Schedule I hereto (the "Pledged
Shares") 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;
(b) all shares, securities, moneys or property representing a dividend
on any of the Pledged Shares, or representing a distribution or return of
capital upon or in respect of the Pledged Shares, or resulting from a
split-up, revision, reclassification or other like change of the Pledged
Shares or otherwise received in exchange therefor, and any subscription
warrants, rights or options issued to the holders of, or otherwise in
respect of, the Pledged Shares;
(c) in the event of any consolidation or merger in which the ABCIC is
not the surviving corporation, all shares of each class of the capital
stock of the successor corporation formed by or resulting from
suchconsolidation or merger;
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(d) all proceeds of and to any of the property of the Borrower
described in the preceding clauses of this Section 1 (including, without
limitation, all causes of action, claims and warranties now or hereafter
held by the Borrower in respect of any of the items listed above) and, to
the extent related to any property described in said clauses or such
proceeds, all books, correspondence, credit files, records, invoices and
other papers.
SECTION 2. SECURITY FOR OBLIGATIONS. The Pledged Collateral secures the
prompt and complete payment when due of all the Obligations.
SECTION 3. DELIVERY OF PLEDGED COLLATERAL. All certificates or
instruments representing or evidencing the Pledged Collateral shall be delivered
to and held by 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 satisfactory to Lender. Lender
shall have the right, at any time after the occurrence of a Default or Event of
Default in its discretion and without notice to Borrower, to transfer to or to
register in the name of Lender or any of its nominees any or all of the Pledged
Collateral, subject only to the revocable rights specified in Section 6(a). In
addition, Lender shall have the right at any time to exchange certificates or
instruments representing or evidencing Pledged Collateral for certificates or
instruments of smaller or larger denominations.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants to Lender as follows:
(a) The Pledged Shares have been duly authorized and validly issued and
are fully paid and non-assessable.
(b) Borrower is the sole legal and beneficial owner of the Pledged
Collateral free and clear of any Lien, option or other charge or encumbrance,
except for the security interest created by this Pledge Agreement.
(c) The pledge of the Pledged Shares pursuant to this Pledge Agreement
creates a valid and perfected first priority security interest in the Pledged
Collateral securing the payment of the obligations.
(d) The execution, delivery and performance by the Borrower of this
Pledge Agreement does not and will not result in any violation of any agreement,
indenture or other instrument, license, judgment, decree, order or Law
applicable to it.
(e) No authorization, approval or other action by, and no notice to or
filing with, any Governmental Authority is required either (i) for the pledge by
Borrower of the Pledged Collateral pursuant to this Pledge Agreement or for the
execution, delivery or performance of the Pledge Agreement by Borrower, or (ii)
for the exercise by Lender of the
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voting or other rights provided for in this Pledge Agreement or the remedies in
respect of the Pledged Collateral pursuant to this Pledge Agreement (except,
with respect to such performance or exercise of rights, as may be required in
connection with such disposition by laws affecting the offering and sale of
securities generally, and except for approval of the Florida Insurance
Department and/or one or more other state insurance departments).
(f) Except for the ABCIC Preferred, the Pledged Shares constitute all
of the issued and outstanding shares of stock of ABCIC.
(g) There are no restrictions upon the voting rights associated with or
the transfer of, any of the Collateral except as provided by any applicable
federal or state securities Law. Borrower has (i) the right to vote the
Collateral, and (ii) the legal right and corporate power and authority to pledge
and grant a security interest in, and to otherwise transfer, the Collateral in
the manner provided herein.
SECTION 5. FURTHER ASSURANCES. Borrower agrees
(a) that at any time and from time to time, at the expense of Borrower,
it will promptly execute and deliver all further instruments and documents, and
take all further action, that may be necessary or desirable, or that Lender may
request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable Lender to exercise and enforce its
rights and remedies hereunder with respect to any Pledged Collateral;
(b) keep full and accurate books and records relating to the Pledged
Collateral, and stamp or otherwise xxxx such books and records in such manner as
the Lender may reasonably require in order to reflect the security interests
granted by this Agreement; and
(c) permit representatives of the Lender, upon reasonable notice, at
any time during normal business hours to inspect and make abstracts from the
Borrower's books and records pertaining to the Pledged Collateral, and permit
representatives of the Lender to be present at the Borrower's place of business
to receive copies of all communications and remittances related to the
Collateral, and forward copies of any notices or communications received by the
Borrower with respect to the Collateral, all in such manner as the Lender shall
require.
SECTION 6. VOTING RIGHTS; DIVIDENDS; ETC. (a) So long as no Default or
Event of Default shall have occurred:
(i) Borrower shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral or any part thereof
for any purpose not inconsistent with the terms of this Pledge Agreement or
the Term Loan Agreement; PROVIDED, HOWEVER, that Borrower shall not
exercise or refrain from
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exercising any such right if, in Lender's judgment, such action would
modify or in any way adversely change Borrower's rights under the Pledged
Collateral or any part thereof.
(ii) Borrower shall be entitled to receive and retain any and all
dividends paid in respect of the Pledged Collateral; PROVIDED, HOWEVER,
that any and all
(A) dividends paid or payable, other than in cash, in respect of,
and instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Pledged Collateral,
(B) dividends and other distributions paid or payable in cash (a)
in respect of any Pledged Collateral in connection with a total
liquidation or dissolution or (b) from capital, capital surplus or paid
in surplus, and
(C) cash paid, payable or otherwise distributed in respect of
principal of, or in redemption of, or in exchange for, any Pledged
Collateral,
shall be, and shall be forthwith delivered to Lender to hold as, Pledged
Collateral and shall, if received by Borrower, be received in trust for the
benefit of Lender, be segregated from the other property or funds of
Borrower, and be forthwith delivered to Lender as Pledged Collateral in the
same form as so received (with any necessary endorsement).
(iii) Lender hereby authorizes Borrower to exercise all voting and
other rights which it is entitled to exercise pursuant to paragraph (i)
above and to receive the dividends which it is authorized to receive and
retain pursuant to paragraph (ii) above.
(b) Upon the occurrence of a Default or an Event of Default:
(i) Upon the request of Lender, all rights of Borrower to exercise the
voting and other consensual rights which it would otherwise be entitled to
exercise pursuant to Section 6(a)(i) and to receive the dividends which it
would otherwise be authorized to receive and retain pursuant to Section
6(a)(ii) shall cease, and all such rights shall thereupon become vested in
Lender, and Lender shall thereupon have the sole right to exercise such
voting and other consensual rights and to receive and hold as Pledged
Collateral such dividends.
(ii) All dividends which are received by Borrower contrary to the
provisions of paragraph (i) of this Section 6(b) shall be received in trust
for the benefit of Lender, shall be segregated from other funds of Borrower
and shall be
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forthwith paid over to Lender as Pledged Collateral in the same form as so
received (with any necessary endorsement).
SECTION 7. TRANSFERS AND OTHER LIENS; ADDITIONAL SHARES. (a) Borrower
agrees that it will neither (i) sell or otherwise dispose of, or grant any
option with respect to, any of the Pledged Collateral, (ii) create or permit to
exist any Lien, security interest, or other charge or encumbrance upon or with
respect to any of the Pledged Collateral or proceeds thereof, nor (iii) file or
suffer to be on file, or authorize or permit to be filed or to be on file, in
any jurisdiction, any financing statement or like instrument with respect to the
Pledged Collateral except in the case of clauses (ii) and (iii) for the security
interest under and any financing statements filed pursuant to this Pledge
Agreement.
(b) Borrower agrees that it will (i) cause ABCIC not to issue any stock
or other securities in addition to or in substitution for the Pledged Shares
except for the ABCIC Preferred and (ii) pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all additional shares of
stock or other securities of each issuer of the Pledged Shares.
SECTION 8. LENDER APPOINTED ATTORNEY-IN-FACT. Borrower hereby appoints
Lender as Borrower's attorney-in-fact, with full authority in the place and
stead of Borrower and in the name of Borrower or otherwise, to take any action
and to execute any instrument which Lender may deem necessary or advisable to
accomplish the purposes of this Pledge Agreement, including, without limitation,
to receive, endorse and collect all instruments made payable to Borrower
representing any dividend or other distribution in respect of the Pledged
Collateral or any part thereof and to give full discharge for the same, which
appointment is irrevocable and coupled with an interest; PROVIDED, HOWEVER,
Lender agrees it will only exercise such rights upon the occurrence and during
the continuance of an Event of Default.
Without limiting the generality of the foregoing, the Lender shall have
the right, upon the occurrence and during the continuance of an Event of
Default, with full power of substitution either in the Lender's name or in the
name of the Borrower, to (i) ask for, demand, xxx for, collect, receive receipt
and give acquittance for any and all moneys due or to become due and under and
by virtue of any Pledged Collateral, (ii) endorse checks, drafts, orders and
other instruments for the payment of money payable to the Borrower representing
any interest or dividend, or other distribution payable on or with respect to
the Pledged Collateral or any part thereof or on account thereof and give full
discharge for the same, (iii) settle, compromise, prosecute or defend any
action, claim or proceeding with respect to any of the foregoing, and (iv) 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 the Lender to make any commitment
or to make any inquiry as to the nature or sufficiency of any payment received
by the Lender, or to present or file any claim or notice, or to take any action
with
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respect to the Pledged Collateral or any part thereof or the moneys due or to
become due on or with respect thereto or any property covered thereby, and no
action taken by the Lender or omitted to be taken with respect to the Pledged
Collateral or any party thereof shall give rise to any defense, counterclaim or
offset in favor of the Borrower or to any claim or action against the Lender,
except in the case of the gross negligence or willful misconduct of the Lender.
SECTION 9. LENDER MAY PERFORM. If Borrower fails to perform any
agreement contained herein, Lender may itself perform or cause performance of,
such agreement, and the expenses of Lender incurred in connection therewith
shall be payable by Borrower under Section 12.
SECTION 10. LENDER'S DUTIES AND REASONABLE CARE. The powers conferred
on Lender hereunder are solely to protect its interests in the Pledged
Collateral and shall not impose any duty upon it to exercise any such powers.
Lender shall be deemed to have exercised reasonable care in the custody and
preservation of the Pledged Collateral in its possession if the Pledged
Collateral is accorded treatment substantially equal to that which Lender
accords its own property, it being understood that Lender shall not have any
responsibility for (a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Pledged Collateral, whether or not Lender has or is deemed to have knowledge of
such matters, or (b) taking any necessary steps to preserve rights against any
parties with respect to any Pledged Collateral.
SECTION 11. REMEDIES. Subject to Section 13, if any Event of Default
shall have occurred:
(a) Lender may exercise in respect of the Pledged 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 on default under the
Uniform Commercial Code in effect in the State of New York at that time (the
"UCC"), and Lender may also, without notice, except as specified below, collect,
receive, appropriate and realize upon the Pledged Collateral, or any part
thereof, and may forthwith sell, assign, give an option or options, purchase,
contracts to sell or otherwise dispose and deliver the Pledged 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 Lender's offices or elsewhere, for cash, on credit
or for future delivery, and upon such other terms as Lender may deem
commercially reasonable, with the right of Lender or any purchaser upon any such
sale or sales, public or private, to purchase the whole or any part of the
Pledged Collateral sold free of any right or equity of redemption in the Pledged
Collateral, which right or equity is hereby expressly waived and released.
Borrower agrees that, to the extent notice of sale shall be required by Law, at
least ten (10) days' notice to Borrower of the time and place of any public sale
or the time after which any private sale is to be made shall constitute
reasonable notification. Lender shall not be obligated to make any sale of
Pledged Collateral regardless of notice of sale having been given. Lender may
adjourn any public or private sale from time to time by announcement at the time
and place
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fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(b) Any cash held by Lender as Pledged Collateral and all cash proceeds
received by Lender in respect of any sale of, collection from, or other
realization upon all or any part of the Pledged Collateral shall first be
applied to satisfy all of Borrower's obligations under Section 12 and then be
applied in whole or in part by Lender against, all or any part of the
obligations in such order as Lender shall elect. Any surplus of such cash or
cash proceeds held by Lender and remaining after payment in full of all
Obligations shall be paid over to Borrower or to whosoever may be lawfully
entitled to receive such surplus. If the proceeds of the sale of the Collateral
are insufficient to pay all the Obligations Borrower agrees to pay upon demand
any deficiency to Lender.
The Borrower recognize that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Lender may be compelled, with respect to any sale of all or
any part of the Pledge Collateral, to limit purchasers to those who will agree,
among other things, to acquire the Pledged Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Borrower acknowledges that any such private sales may be at prices and on terms
less favorable to the Lender than those obtainable through a public sale without
such restrictions, and notwithstanding such circumstances, agree that any such
private sale shall be deemed to have been made in a commercially reasonable
manner and that the Lender shall have no obligation to engage in public sales
and no obligation to delay the sale of any Pledged Collateral for the period of
time necessary to permit the Borrower or ABCIC or issuer thereof to register it
for public sale.
SECTION 12. INDEMNITY AND EXPENSES. (a) Borrower hereby indemnifies
Lender from and against any and all claims, losses, damages and liabilities
growing out of or resulting from this Pledge Agreement (including, without
limitation, enforcement of this Pledge Agreement), except claims, losses,
damages or liabilities resulting from Lender's gross negligence and willful
misconduct.
(b) Borrower will upon demand pay to Lender the amount of any and all
expenses, including the fees and expenses of its counsel and of any experts and
agents, which Lender may incur in connection with (i) any amendment to this
Pledge Agreement; (ii) the administration of this Pledge Agreement; (iii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Pledged Collateral; (iv) the exercise or
enforcement of any of the rights of Lender hereunder; or (v) the failure by
Borrower to perform or observe any of the provisions hereof.
SECTION 13. PRIOR REGULATORY APPROVALS. Notwithstanding any provision
of this Pledge Agreement to the contrary, the Lender may not exercise control
over ABCIC without the prior approval of the Florida Department of Insurance in
accordance with the Florida Insurance Law.
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SECTION 14. PRIVATE SALE. The Lender shall incur no liability as a
result of the sale of the Pledged Collateral, or any part thereof, at any
private sale pursuant to Section 11 hereof conducted in a commercially
reasonable manner. The Borrower hereby waives any claims against the Lender
arising by reason of the fact that the price at which the Pledged Collateral may
have been sold at such a private sale was less than the price which might have
been obtained at a public sale or was less than the aggregate amount of the
Obligations, even if the Agent accepts the first offer received and does not
offer the Pledged Collateral to more than one offeree.
SECTION 15. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Pledge Agreement, nor consent to any departure by Borrower herefrom, shall
in any event be effective unless the same shall be in writing and signed by
Lender, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 16. ADDRESSES FOR NOTICES. All notices and other communications
to any party hereto provided for hereunder shall be in writing and mailed or
delivered by messenger or sent by facsimile, addressed to such party at the
address of such party specified in the Term Loan Agreement. Notices shall be
effective upon receipt.
SECTION 17. CONTINUING SECURITY INTEREST; TRANSFER OF TERM LOAN
FACILITIES. This Pledge Agreement shall create a continuing security interest in
the Pledged Collateral and shall (i) remain in full force and effect until
payment in full of the Obligations, (ii) be binding upon Borrower, its
successors and assigns, and (iii) inure to the benefit of Lender and its
successors. Upon the payment in full of the Obligations, Borrower shall be
entitled to the return, upon its request and at its expense, of such of the
Pledged Collateral as shall not have been sold or otherwise applied pursuant to
the terms hereof.
SECTION 18. GOVERNING LAW; TERMS. This Pledge Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
Unless otherwise defined herein or in the Term Loan Agreement, terms defined in
Article 9 of the UCC are used herein as therein defined.
SECTION 19. SEVERABILITY. In the event any one or more of the
provisions of this Pledge Agreement should be held invalid, illegal or
unenforceable in any respect in any jurisdiction, such provision or provisions
shall be automatically deemed amended, but only to the extent necessary to
render such provision or provisions valid, legal and enforceable in such
jurisdiction, and the validity, legality and enforceability of the remaining
provisions of this Pledge Agreement shall not in any way be affected or impaired
thereby.
SECTION 20. RIGHTS CUMULATIVE. The rights and remedies herein provided
and in all other agreements, instruments and documents delivered concurrently
herewith are cumulative and are in addition to and not exclusive of any rights
or remedies provided by
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Law, including, without limitation, the rights and remedies of a secured party
under the UCC of New York.
SECTION 21. MISCELLANEOUS. This Pledge Agreement is in addition to and
not in limitation of any other rights and remedies Lender may have by virtue of
any other instrument or agreement heretofore, contemporaneously herewith or
hereafter executed by Borrower or any other Person or by law or otherwise. If
any provision of this Pledge Agreement is contrary to applicable law, such
provision shall be deemed ineffective without invalidating the remaining
provisions hereof. Lender shall not, by any act, delay, omission or otherwise,
be deemed to have waived any of their rights or remedies hereunder.
SECTION 22. COUNTERPARTS. This Pledge Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Pledge Agreement
by signing any such counterpart.
SECTION 23. WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE LENDER
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, Borrower has caused this Pledge Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
ASSOCIATED BUSINESS & COMMERCE
HOLDINGS, INC.
By /S/ XXXXXXXX X. XXXXXXXXXX
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Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Chairman of the Board
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SCHEDULE I
Attached to and forming a part of that certain
Pledge Agreement dated as of December 4, 1996,
by Borrower to Lender.
CLASS CERTIFICATE % OF TOTAL PAR VALUE NUMBER OF
STOCK ISSUER OF STOCK NO(S). STOCK OF ISSUER OF SHARES SHARES
------------ ---------- ----------- --------------- --------- ---------
Associated Business & Commerce Common 100% $1.00 102,501
Insurance Corporation
Associated Business & Commerce Convertible 100% $1.00 3,200,000
Insurance Corporation Preferred,
Series B
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