EXHIBIT 10.2
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated November 13, 2003, by and between STANDARD
MANAGEMENT CORPORATION, an Indiana corporation (hereinafter called "Pledgor")
and THE CIT GROUP/EQUIPMENT FINANCING, INC., a Delaware corporation (hereinafter
called "Pledgee").
WHEREAS, Pledgor is entering into a Senior Secured Credit Agreement of
even date herewith (the "Credit Agreement") with Pledgee pursuant to which
Pledgee has agreed to extend certain credit accommodations on the condition,
inter alia, that all the issued and outstanding capital stock of STANDARD LIFE
INSURANCE COMPANY OF INDIANA (the "Company"), an Indiana corporation, be pledged
to Pledgee;
WHEREAS, Pledgor is the owner of 100% of the issued and outstanding
capital stock of the Company; and
WHEREAS, Pledgor has determined that its execution, delivery and
performance of this Pledge Agreement directly benefit and are within the
corporate purposes and in the best interests of Pledgor.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. All terms used in this Pledge Agreement which are defined in
the Credit Agreement and not otherwise defined herein, shall have the same
meanings as set forth in the Credit Agreement.
2. As security for the due and punctual payment of all
indebtedness and obligations of Pledgor under the Credit Agreement, the Notes
and the Loan Documents and for all of Pledgor's Obligations (all such
indebtedness and obligations being hereinafter collectively referred to as the
"Secured Obligations"), Pledgor hereby pledges to Pledgee and grants to Pledgee
a security interest in all of the issued and outstanding shares of common stock
of the Company and in the proceeds thereof. The shares hereby pledged, together
with any shares hereafter issued by the Company by way of a stock dividend,
split or other distribution or reclassification, are hereinafter referred to as
"Pledged Shares". Pledgor is herewith delivering to Pledgee the certificates
representing the Pledged Shares accompanied by stock powers duly executed in
blank, with signatures guaranteed.
3. Pledgor hereby represents, warrants and covenants as follows:
(a) The Pledged Shares are, and shall be at all times,
duly authorized, validly issued, fully paid and nonassessable shares and shall
at all times constitute not less than 100% of the issued and outstanding shares
of each class of stock of the Company.
(b) The Pledged Shares shall at all times be free and
clear of any security interests, mortgages, pledges, liens, encumbrances and
restrictions on the transfer thereof other than those created by this Pledge
Agreement or that exist under the applicable insurance laws of the States of
Indiana and Mississippi, as appliable; and Pledgor will not suffer or permit any
security interests, mortgages, pledges, liens, encumbrances or restrictions to
attach to the Pledged Shares or transfer or attempt to transfer any interest in
the Pledged Shares without the written consent of Pledgee.
(c) Pledgor will not permit the Company to issue any
additional shares of capital stock of any class, or to reclassify any of its
issued and outstanding shares of capital stock unless all such shares shall
forthwith be delivered to Pledgee accompanied by stock powers duly executed in
blank with signatures guaranteed to be held by Pledgee as part of the Pledged
Shares in accordance with the terms hereof.
(d) Without affecting the rights of Pledgee hereunder,
any collateral security for the Secured Obligations, and any guarantee or surety
therefor, may be exchanged, sold, surrendered, released, modified or otherwise
dealt with in accordance with the terms of any present or future agreement
between Pledgee and Pledgor or any guarantor or surety, including any agreement
permitting Pledgee to take unilateral action with respect thereto.
(e) The execution, delivery and performance by the
Pledgor of this Agreement does not require any authorization, consent or
approval by, or registration, declaration or filing with, or notice to, any
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or any third party, except (i) such authorization, consent,
approval, registration, declaration, filing or notice as has been obtained,
accomplished or given prior to the date hereof or (ii) as contemplated by the
proviso contained in paragraph 5 below.
4. Unless an Event of Default shall has occurred and is
continuing under the Credit Agreement, Pledgor shall be entitled to vote or
consent with respect to the Pledged Shares, to receive cash dividends thereon,
and to have and exercise all other rights as a holder of the Pledged Shares in
any manner not inconsistent with or in violation of the terms of the Credit
Agreement or this Pledge Agreement.
5. Upon the occurrence and during the continuance of any Event of
Default, the following provisions shall govern the right of Pledgee to realize
upon the Pledged Shares, in addition to any rights and remedies available in law
or equity, and in addition to the rights and remedies provided in the Credit
Agreement, provided however that Pledgee shall not have the right to vote, give
consents or waivers, sell, transfer or otherwise dispose of, or in any manner
exercise control over the Pledged Shares without obtaining, to the extent
required by law, the prior approval (including any hearing required by law) of
the Indiana Department of Insurance and any other applicable regulatory body or
agency (including the Mississippi Department of Insurance for as long as Xxxxx
is domesticated in that state):
(a) Unless Pledgee agrees otherwise in writing, only
Pledgee shall be entitled to vote or consent or take any other action with
respect to the Pledged Shares, and Pledgor
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hereby irrevocably constitutes and appoints Pledgee its proxy and attorney in
fact, with full power of substitution to do so, and agrees, if so requested, to
execute or cause to be executed appropriate irrevocable proxies therefor in
addition to and separate from this Agreement.
(b) Pledgee shall not be required to make any demand upon
or pursue or exhaust any of its rights or remedies against Pledgor or any other
person with respect to the payment of the Secured Obligations, or to pursue or
exhaust any of its rights or remedies with respect to the Pledged Shares or any
other collateral held in respect of the Secured Obligations, or any direct or
indirect guaranty thereof. Pledgee shall not be required to marshal the Pledged
Shares or any other collateral for or guaranty of the Secured Obligations or to
resort to the Pledged Shares or any such other collateral or guaranty in any
particular order and all of the rights granted to Pledgee hereunder and under
all other agreements relating to the Secured Obligations shall be cumulative. To
the extent not prohibited by applicable law, Pledgor hereby agrees to waive, and
does hereby absolutely and irrevocably waive and relinquish the benefit and
advantage of, and does hereby covenant not to assert against Pledgee, any
valuation, stay, appraisement, extension, or redemption laws now existing or
which may hereafter exist and which, but for this provision, might be applicable
to any sale made under the judgment, order or decree of any court, or privately
under the power of sale conferred by this Pledge Agreement or in respect of any
Pledged Shares. Without limiting the generality of the foregoing, Pledgor hereby
agrees that it will not invoke or utilize any law which might cause delay in, or
impede, the enforcement of the rights of Pledgee under this Pledge Agreement,
and hereby waives the same. IN ADDITION, TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW, PLEDGOR HEREBY WAIVES ANY RIGHT TO PRIOR NOTICE (EXCEPT TO THE
EXTENT EXPRESSLY PROVIDED IN THIS AGREEMENT) OR JUDICIAL HEARING IN CONNECTION
WITH THE TAKING POSSESSION OR THE DISPOSITION OF ANY OF THE PLEDGED SHARES,
INCLUDING, WITHOUT LIMITATION, ANY SUCH RIGHT WHICH PLEDGOR WOULD OTHERWISE
HAVE.
(c) The Pledged Shares may be sold for cash or other
value in any manner of lots at brokers' board, public auction or private sale
without demand, advertisement or notice (excepting only that Pledgee shall give
Pledgor ten (10) days' prior written notice of the time and place of any public
sale or the time after which a private sale may be made, which notice Pledgor
and Pledgee hereby agree to be reasonable). At any sale or sales of the Pledged
Shares (except at private sale), Pledgee may bid for and purchase the whole or
any part of the property and rights so sold and upon compliance with the terms
of such sale may hold, exploit and dispose of such property and rights without
further accountability to Pledgor, except with respect to the proceeds of such
sale or sales. Pledgor will execute and deliver, or cause to be executed and to
be delivered, such instruments and documents and shall supply or cause to be
supplied such further information and take such further action as Pledgee shall
require in connection with such sale.
(d) The proceeds of all sales and any other monies
received by Pledgee with respect to the disposition of Pledged Shares shall be
applied as follows:
i) First, to the payment of the costs and
expenses of such sale or sales, and the reasonable attorneys'
fees incurred by Pledgee;
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ii) Second, any surplus then remaining, to the
payment of the Secured Obligations; and
iii) Third, any surplus then remaining shall be
paid to Pledgor.
(e) Pledgor shall use its best efforts to cause the
issuer, transfer agent, or registrar of the Pledged Shares to take all such
actions and execute all such documents as may be necessary or appropriate, upon
the request of Pledgee, including, but not limited to the following:
i) to remove any restrictive legends placed on
the Pledged Shares that are not required legally to appear on
the Pledged Shares held by Pledgee;
ii) after an Event of Default, to effect any
sale or sales of Pledged Shares in accordance with Rule 144
and any other applicable rules under the Securities Act of
1933; and
iii) after an Event of Default, to effect any
sale or other disposition of the Pledged Shares in any lawful
public or private sale or other disposition.
6. Upon the occurrence and during the continuance of any Event of
Default, Pledgee shall be entitled to receive all cash dividends and other
dividends or distributions on the Pledged Shares, and Pledgee at its option
shall have the right to transfer into its name or that of its nominee any and
all of the Pledged Shares, subject to the proviso set forth in paragraph 5
above.
7. Pledgor shall at any time and from time to time, execute and
deliver upon the written request of Pledgee further documents and do further
acts and things as Pledgee may reasonably request to effect the purposes of this
Agreement, including, without limitation, delivering to Pledgee upon the
occurrence of an Event of Default irrevocable proxies with respect to the
Pledged Shares in a form satisfactory to Pledgee, subject to the proviso set
forth in paragraph 5 above. Until receipt thereof, this Agreement shall
constitute Pledgor's proxy to Pledgee or its nominee to vote all of the Pledged
Shares then registered in Pledgor's name at any and all such times as Pledgee
has the right to vote such shares pursuant to the terms of this Pledge
Agreement, subject to the proviso set forth in paragraph 5 above. The power of
attorney granted hereby is coupled with an interest and is irrevocable.
8. No delay or omission on the part of Pledgee in exercising any
right under this Pledge Agreement, the Credit Agreement, and the other Loan
Documents shall operate as a waiver or relinquishment of such right and no such
waiver or relinquishment shall be effective except under the conditions set
forth in paragraph 12 of this Pledge Agreement.
9. Pledgee's sole duty with respect to the custody, safekeeping
and physical preservation of the Pledged Shares in its possession, under Section
9-207 of the Uniform Commercial Code or otherwise, shall be to deal with the
Pledged Shares in the same manner as Pledgee deals with similar securities for
its own account. Neither Pledgee nor any of its directors, officers, employees
or agents shall be liable for failure to demand, collect or realize upon any of
the Pledged Shares or for any delay in doing so nor shall Pledgee be under any
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obligation to sell or otherwise dispose of any Pledged Shares upon the request
of the Pledgor or otherwise.
10. This Pledge Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective successors and assigns, and
shall inure to the benefit of the holders from time to time of any evidence of
indebtedness created pursuant to the Credit Agreement.
11. All notices and other communications provided for hereunder
shall be effective if given in accordance with the provisions of the Credit
Agreement.
12. This Pledge Agreement shall be governed by and construed in
accordance with the internal laws of the State of Indiana without reference to
conflict of laws principles. Neither this Pledge Agreement nor any term hereof
may be amended, waived, discharged or terminated orally but only by an
instrument in writing signed by the party against which enforcement of the
amendment, waiver, discharge or termination is sought.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
STANDARD MANAGEMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxxx Corporate Seal)
---------------------------
Title: Executive Vice President and Secretary
THE CIT GROUP/EQUIPMENT
FINANCING, INC.
By: /s/ Xxxx Xxxxxxx
---------------------------
Title: Vice President, Funding
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