EXHIBIT 10.2
BORROWER PLEDGE AGREEMENT
dated as of December 16, 2002
between
DELPHI FINANCIAL GROUP, INC.,
and
BANK OF AMERICA, N.A.
as Collateral Agent
BORROWER PLEDGE AGREEMENT
THIS BORROWER PLEDGE AGREEMENT (this " Pledge Agreement"), dated as of
December 16, 2002, is made by and between DELPHI FINANCIAL GROUP, INC., a
Delaware corporation (herein, called the "Pledgor"), and Bank of America, N.A.
("Bank of America") as collateral agent for the Lenders (herein in such
capacity, together with any successors thereto in such capacity, called the
"Collateral Agent"). This Pledge Agreement is the Borrower Pledge Agreement
referred to in that certain Credit Agreement (as the same may from time to time
be amended or modified and in effect the "Credit Agreement"), dated as of
December 16, 2002, among the Pledgor, the Lenders who are or from time to time
become party thereto (the "Lenders"), the co-syndication agents for the Lenders
(in such capacity, the "Co-Agents") and Bank of America as Administrative Agent
and Collateral Agent for the Lenders.
RECITALS
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make loans to the Borrower for the purposes described in the Credit Agreement;
WHEREAS, the Pledgor is the owner of all of the stock listed on
Schedule 1 hereto, which consists of all of the outstanding capital stock of
each Subsidiary directly owned by the Pledgor;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
DEFINITIONS
SECTION 1.1 Certain Defined Terms. As used in this Pledge Agreement,
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Collateral" - see Section 2.
"Collateral Agent" shall mean Bank of America.
"Credit Agreement" - see Preamble.
"Pledged Shares" - see Section 2.
"Pledgor" - see Preamble.
SECTION 1.2 Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Pledge Agreement
(and in its preamble and recitals) have the meanings provided in the Credit
Agreement.
SECTION 2
PLEDGE
To secure the prompt and complete payment and performance of the
Liabilities, including, without limitation, the liabilities of the Pledgor
hereunder, the Pledgor hereby pledges, hypothecates, assigns, transfers, sets
over and delivers unto the Collateral Agent, for the benefit of the Lenders, and
hereby grants to the Collateral Agent, for the benefit of the Lenders, a
continuing security interest in the following (herein, collectively, called the
"Collateral"):
(a) the shares of stock of the Subsidiaries listed on
Schedule 1 hereto (herein called the "Pledged Shares") and the
certificates representing or evidencing the Pledged Shares and all
cash, securities, interest, dividends, rights and other property at any
time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such Pledged
Shares;
(b) all additional shares of stock of the Subsidiaries
from time to time acquired by the Pledgor in any manner including,
without limitation, any uncertificated securities (which additional
shares of stock and securities shall constitute a part of, and be,
"Pledged Shares"), and, in the case of any and all uncertificated
securities pledged hereunder, such uncertificated securities shall
contain a notation of the security interest and the pledge granted to
the Collateral Agent on the books and records of the Subsidiaries in
the name of the Collateral Agent and, in the case of certificated
securities, the certificates representing or evidencing such additional
shares, and all cash, securities, interest, dividends, rights, notes,
instruments and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any and all of such additional shares;
(c) all other property hereafter delivered to the
Collateral Agent by the Pledgor in substitution for or in addition to
any of the foregoing, all certificates and instruments representing or
evidencing such other property and in the case of uncertificated
securities, all notations of the security interest hereafter delivered
on the books and of the Subsidiaries in the name of the Collateral
Agent, all cash, securities, interest, dividends, rights and other
property at any time and from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all
thereof; and
(d) all proceeds, rents, issues, profits and returns of
and from all of the foregoing;
TO HAVE AND TO HOLD the Collateral, together with all rights, titles, interests,
privileges and preferences appertaining or incidental thereto, unto the
Collateral Agent, its successors and assigns, forever, subject, however, to the
terms, covenants and conditions hereafter set forth.
Subject to the terms of this Pledge Agreement, the Pledgor agrees to
deliver to the Collateral Agent promptly upon receipt and in the case of the
Pledged Shares in due form for transfer (i.e., endorsed in blank accompanied by
undated stock or bond powers executed in blank or registered on the books of the
Subsidiaries) and, subject to the provisions of Section 7 hereof, any Collateral
which may at any time or from time to time be in or come into possession or
control of the Pledgor; and prior to the delivery thereof to the Collateral
Agent, such Collateral
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shall be held by the Pledgor separate and apart from its other property and in
express trust for the Collateral Agent.
SECTION 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Pledged Shares. The Pledgor represents and warrants to the
Collateral Agent that:
(a) The Pledged Shares are duly authorized, validly
issued and are fully paid and non-assessable;
(b) Except for liens, claims and rights of third parties
arising solely through the acts of the Collateral Agent, the Collateral
Agent has and (assuming the Collateral Agent maintains continuous
possession of such Collateral) will continue to have at all times as
security for the Liabilities a valid, first priority perfected security
interest in the Collateral and the proceeds thereof free of all Liens,
claims and rights of third parties whatsoever (other than Permitted
Liens provided for in Section 8.01(b) of the Credit Agreement);
(c) To the extent any Pledged Shares are evidenced by
certificates, the Pledgor has delivered to the Collateral Agent for
pledge under this Agreement on the date hereof, the certificates
representing all the Pledged Shares which it owns;
(d) The Pledged Shares represent all of the issued and
outstanding capital stock of each Subsidiary owned by the Pledgor;
(e) The Pledgor will, at all times, keep pledged to the
Collateral Agent pursuant hereto all shares of each of the Subsidiaries
owned by the Pledgor;
(f) The Pledgor agrees to endorse and/or deliver to the
Collateral Agent for pledge hereunder, promptly upon its obtaining
thereof, any additional Collateral (other than cash dividends, interest
and principal paid on such Collateral prior to the occurrence of a
Default under Section 9.01(f) or (g) of the Credit Agreement or an
Event of Default). As of the date of any such delivery of additional
shares or certificates to the Collateral Agent, the Pledgor will
represent and warrant that: (i) it owns such shares and certificates
and the proceeds thereof free of all Liens, claims and rights of any
other Person other than the Liens granted hereunder, (ii) it has good
and marketable title to said shares and certificates and has the right
to deliver, pledge, assign and transfer such shares or certificates to
the Collateral Agent pursuant to this Pledge Agreement, (iii) the
Collateral Agent has a valid, first priority perfected security
interest in said shares and certificates and the proceeds thereof free
of all Liens, claims and rights of third parties whatsoever (other than
Permitted Liens provided for in Section 8.01(b) of the Credit
Agreement) and (iv) it has pledged to the Collateral Agent, as the case
may be, as at such date, all of the capital stock of each of the
Subsidiaries owned by it;
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(g) All documentary, stamp or other taxes or fees owing
in connection with the issuance, transfer and/or pledge of the Pledged
Shares have been paid and will hereafter be paid by the Pledgor as such
become due and payable; and.
(h) The information contained in Schedule 1 is true and
accurate in all respects.
SECTION 3.2 Collateral. The Pledgor further represents and warrants to
the Collateral Agent that it is the lawful owner of the Collateral existing on
the date hereof, free of all Liens, claims and rights of any other Person, other
than the Lien granted hereunder with full right to deliver, pledge, assign and
transfer such Collateral to the Collateral Agent as Collateral hereunder. The
pledge of the Collateral effected by this Pledge Agreement is effective to vest
in the Collateral Agent the rights of the Collateral Agent in the Collateral set
forth herein.
SECTION 3.3 Organization, etc. The Pledgor additionally represents and
warrants to the Collateral Agent that:
(a) It is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Subsidiaries are corporations duly organized,
validly existing and in good standing under the laws of their state of
incorporation;
(c) The Pledgor and the Subsidiaries are duly qualified
to transact business and are in good standing as foreign corporations
authorized to do business in each jurisdiction where the nature of each
of their businesses makes such qualification necessary or failure to so
qualify could have a Material Adverse Effect;
(d) The Pledgor has the corporate power to execute,
deliver and perform this Pledge Agreement and such execution, delivery
and performance have been duly authorized by all necessary corporate
action (including, without limitation, shareholder approval, if
necessary), has received or made all necessary governmental consents or
approvals, licenses, authorizations, validations, filings, recordings,
registrations or exemptions (if any shall be required), and the
execution, delivery and performance hereof do not and will not
contravene or conflict with any provision of law or of the corporate
charter or by-laws of the Pledgor or of any agreement or instrument
binding upon Pledgor or any of its property or result in the creation
or imposition of or the obligation to create or impose any Lien (other
than the Lien of the Collateral Agent hereunder); and
(e) This Pledge Agreement is the legal, valid and binding
obligation of the Pledgor, enforceable against the Pledgor in
accordance with its terms.
SECTION 3.4 Effectiveness. Each representation and warranty made or to
be made herein by the Pledgor shall be deemed remade as of and at the date of
each Loan made from time to time under or in connection with the Credit
Agreement with the same effect as if made contemporaneously with the making of
each such Loan, and as of and at the date of delivery of any additional
Collateral to the Collateral Agent.
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SECTION 4
COVENANTS
So long as any of the Liabilities remain outstanding and the
Commitments have not been terminated, the Pledgor will, unless the Collateral
Agent and the Required Lenders shall otherwise consent in writing:
(a) At its sole expense, promptly deliver to the
Collateral Agent from time to time upon request of the Collateral Agent
such undated stock powers and other documents, satisfactory in form and
substance to the Collateral Agent, with respect to the Collateral as
the Collateral Agent may reasonably request, to preserve and protect,
and to enable the Collateral Agent to enforce, its rights and remedies
hereunder;
(b) Promptly endorse and/or deliver to the Collateral
Agent, for pledge hereunder, any additional Collateral (other than cash
dividends, interest and principal paid on such Collateral which the
Pledgor is entitled to receive and retain pursuant to Section 7.1(a));
(c) Not make or consent to any amendment or other
modification or waiver with respect to any of the Collateral, or enter
into any agreement or permit to exist any restriction with respect to
any of the Collateral other than pursuant hereto;
(d) Not take or fail to take any action which would in
any manner impair the enforceability of the Collateral Agent's Lien and
security interest in any of the Collateral;
(e) Own and continue to own all Collateral free and clear
of all Liens, security interests, encumbrances, claims, interests or
rights of any other Person whatsoever (except for the pledge hereunder
and the Lien created hereby and Permitted Liens provided for in Section
8.01(b) of the Credit Agreement), have good and marketable title to all
of the Collateral and have the right to pledge such Collateral and such
Collateral will constitute all of the capital stock of the Subsidiaries
owned by the Pledgor; and
(f) Promptly cause each of its Subsidiaries, upon the
issuance of any uncertificated securities, to note the Lien of the
Collateral Agent in its books and records in the name of the Collateral
Agent.
SECTION 5
CARE OF COLLATERAL
The Collateral Agent shall be deemed to have exercised reasonable care
in the custody and preservation of the Collateral if it takes such action for
that purpose as the Pledgor requests in writing, but failure of the Collateral
Agent to comply with any such request shall not of itself be deemed a failure to
exercise reasonable care, and no failure of the Collateral Agent to preserve or
protect any rights with respect to the Collateral against prior or other.
parties, or to do any act with respect to preservation of the Collateral not so
requested by the Pledgor, shall be deemed a failure to exercise reasonable care
in the custody or preservation of the Collateral.
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SECTION 6
CERTAIN RIGHTS REGARDING COLLATERAL AND LIABILITIES
SECTION 6.1 Permitted Action. Subject to Section 6.3 and Section 7
hereof, the Collateral Agent may, from time to time after the occurrence of any
Default with respect to Section 9.01(f) or (g) of the Credit Agreement or an
Event of Default, in its sole discretion and without notice to the Pledgor:
(a) transfer all or any part of the Collateral into the
name of the Collateral Agent or its nominee, with or without disclosing
that such Collateral is subject to the Lien and security interest
hereunder;
(b) notify the parties obligated on any of the Collateral
to make payment to the Collateral Agent of any amounts due or to become
due thereunder;
(c) enforce collection of any of the Collateral by suit
or otherwise;
(d) surrender, release or exchange all or any part
thereof, or compromise or extend or renew for any period (whether or
not longer than the original period) any obligations of any nature of
any party with respect thereto; and
(e) take control of any proceeds of the Collateral.
SECTION 6.2 Subject to the terms of the SIG Note Agreement and, with
respect to Sections 6.2(a) and 6.2(e), the SIG Pledge Agreement and the
Intercreditor Agreement, the Collateral Agent may, from time to time, in its
sole discretion and without notice to Pledgor, take any or all of the following
actions:
(a) retain or obtain a Lien upon, or a security interest
in, any property to secure payment and performance of any of the
Liabilities or any obligation hereunder;
(b) retain, obtain or release the primary or secondary
obligation of any obligor or obligors, in addition to the Pledgor with
respect to any of the Liabilities or any obligation hereunder;
(c) create, extend or renew for any period (whether or
not longer than the original period) or alter or exchange any of the
Liabilities, or release or compromise any obligation of the Pledgor
hereunder or any obligation of any nature of any other obligor with
respect to any of the Liabilities or any obligation hereunder;
(d) release or fail to perfect its Lien upon or security
interest in, or impair, surrender, release or permit any substitution
or exchange for, all or any part of any property securing any of the
Liabilities or any obligation hereunder, or create, extend or renew for
any period (whether or not longer than the original period) or release,
compromise, alter or exchange any obligations of any nature of any
obligor with respect to any such property; and
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(e) upon the occurrence and during the continuance of a
Default with respect to Section 9.01(f) or (g) of the Credit Agreement
or an Event of Default, resort to the Collateral for payment of any of
the Liabilities or any obligation hereunder, whether or not the
Collateral Agent (i) shall have resorted to any other property securing
any of the Liabilities or any obligation hereunder or (ii) shall have
proceeded against any other obligor primarily or secondarily obligated
with respect to any of the Liabilities or any obligation hereunder (all
of the actions referred to in preceding clauses (i)and (ii) being
hereby expressly waived by the Pledgor).
SECTION 6.3 Voting Pledged Shares. The Collateral Agent shall have no
right to vote the Pledged Shares or other Collateral or give consents, waivers
or ratifications in respect thereof prior to the occurrence of a Default with
respect to Section 9.01(f) or (g) of the Credit Agreement or an Event of
Default. After the occurrence of a Default with respect to Section 9.01(f) or
(g) of the Credit Agreement or an Event of Default, the Pledgor shall have the
right to vote any and all of the Pledged Shares and other Collateral and give
consents, waivers and ratifications in respect thereof unless and until it
receives notice from the Collateral Agent that such right has been terminated.
The Pledgor agrees to deliver (properly endorsed when required) to the
Collateral Agent, after a Default with respect to Section 9.01(f) or (g) of the
Credit Agreement or an Event of Default shall have occurred, promptly upon
request of the Collateral Agent, such proxies and other documents as may be
necessary for the Collateral Agent to exercise the voting power with respect to
the Pledged Shares and other Collateral then or previously owned by the Pledgor.
SECTION 7
DIVIDENDS, ETC.
SECTION 7.1 No Default. So long as no Default with respect to Section
9.01(f) or (g) of the Credit Agreement or Event of Default shall have occurred
and be continuing:
(a) Subject to the provisions of the Credit Agreement,
the Pledgor shall, notwithstanding anything contained herein to the
contrary but subject to Section 7.2 hereof, be entitled to receive and
retain or otherwise deal with any and all cash dividends, interest and
principal on the Collateral which it is otherwise entitled to receive,
but any and all securities and/or liquidating dividends, distributions
in property, returns of capital or other distributions made on or in
respect of the Collateral, whether resulting from a subdivision,
combination, reclassification or conversion of the outstanding capital
stock of any Subsidiary of Pledgor or other securities or received in
exchange for the Collateral or any part thereof, or as a result of any
merger, consolidation, acquisition or other exchange of assets to which
any such Subsidiary may be a party or otherwise, and any and all cash
and other property received in exchange for any Collateral shall be and
become part of the Collateral pledged hereunder and, if received by the
Pledgor, shall forthwith be delivered to the Collateral Agent or its
designated nominee (accompanied, if appropriate, by proper instruments
of assignment and/or undated stock or bond powers executed by the
Pledgor in accordance with the Collateral Agent's instructions) to be
held subject to the terms of this Pledge Agreement.
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(b) If the Collateral or any part thereof shall have been
registered in the name of the Collateral Agent or its sub-agent, the
Collateral Agent shall execute and deliver (or cause to be executed and
delivered) to the Pledgor all such dividend, interest and principal
orders and other instruments as the Pledgor may request for the purpose
of enabling the Pledgor to receive the dividends, interest, principal
or other payments which it is authorized to receive and retain pursuant
to clause (a) above.
SECTION 7.2 Occurrence of Default. Upon the occurrence and during the
continuance of a Default with respect to Section 9.01(f) or (g) of the Credit
Agreement or an Event of Default, (a) all rights of the Pledgor pursuant to
Section 7.1 (a) hereof shall cease and the Collateral Agent shall have the sole
and exclusive right and authority to receive and retain the dividends (cash or
other), interest and principal which the Pledgor would otherwise be authorized
to retain and (b) all such dividends, interest and principal and all other
distributions and payments made on or in respect of the Collateral which may at
any time and from time to time be held by the Pledgor, shall, until delivery to
the Collateral Agent, be held by the Pledgor separate and apart from its other
property in trust for the Collateral Agent. Any and all money and other property
paid over to or received by the Collateral Agent pursuant to the provisions of
this Section 7.2 shall be retained by the Collateral Agent as additional
Collateral hereunder and be applied in accordance with the provisions hereof.
SECTION 8
DEFAULT
SECTION 8.1 Occurrence of Default. Upon the occurrence and during the
continuance of a Default with respect to Section 9.01(f) or (g) of the Credit
Agreement or an Event of Default, and notwithstanding any provision contained
herein to the contrary, subject to the Applicable Insurance Code, the Collateral
Agent may exercise from time to time any rights and remedies available to it
under the Uniform Commercial Code as in effect from time to time in Illinois or
otherwise available to it, including, without limitation, sale, assignment, or
other disposal of the Collateral in exchange for cash or credit. If any
notification of intended disposition of any of the Collateral is required by
law, such notification, if mailed, shall be deemed reasonably and properly given
if mailed at least ten (10) days before such disposition, postage prepaid,
addressed to the Pledgor either at the address of the Pledgor shown below, or at
any other address of the Pledgor appearing on the records of the Collateral
Agent. Any proceeds of any disposition of Collateral shall be applied as
provided in Section 9 hereof. No rights and remedies of the Collateral Agent
expressed hereunder are intended to be exclusive of any other right or remedy,
but every such right or remedy shall be cumulative and shall be in addition to
all other rights and remedies herein conferred, or conferred upon the Collateral
Agent under any other agreement or instrument relating to any of the Liabilities
or security therefor or now or hereafter existing at law or in equity or by
statute. No delay on the part of the Collateral Agent in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Collateral Agent of any right or remedy shall preclude other or
further exercise thereof or the exercise of any other right or remedy. No action
of the Collateral Agent permitted hereunder shall impair or affect the rights of
the Collateral Agent in and to the Collateral.
SECTION 8.2 Sale of Collateral.
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(a) The Pledgor agrees that in any sale permitted
hereunder of any of the Collateral the Collateral Agent is authorized
to comply with any limitation or restriction in connection with such
sale as counsel may advise the Collateral Agent is necessary in order
to avoid any violation of applicable law (including, without
limitation, the obtaining of any approval required by any Department,
compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective
bidders and purchasers have certain qualifications, and restrict such
prospective bidders and purchasers to persons who will represent and
agree that they are purchasing for their own account for investment and
not with a view to the distribution or resale of such Collateral), or
in order to obtain any required approval of the sale or of the
purchaser by any governmental regulatory authority or official, and the
Pledgor further agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall the Collateral Agent be liable nor
accountable to the Pledgor for any discount allowed by the reason of
the fact that such Collateral is sold in compliance with any such
limitation or restriction.
(b) Without limiting the rights of the Collateral Agent
under any other provision of this Pledge Agreement, and in addition
thereto, the Pledgor agrees that, to the maximum extent permitted by
law, after a Default with respect to Section 9.01(f) or (g) of the
Credit Agreement or an Event of Default shall have occurred and be
continuing, upon written request from the Collateral Agent, the Pledgor
shall cause any or each of its Subsidiaries whose capital stock is
pledged hereunder to prepare, file and use its best efforts to cause to
become effective promptly, a registration statement complying with the
Securities Act of 1933, as amended, for the public sale of such of the
Collateral as the Collateral Agent may elect, and to take comparable
action to permit such sales under the securities laws of such
jurisdictions as the Collateral Agent may designate and shall cause
such Subsidiaries to enter into and perform their obligations under one
or more underwriting agreements in connection therewith, containing
customary representations, warranties, covenants and indemnities and
contribution provisions if requested by the Collateral Agent. If such
registration statement is filed, the Pledgor agrees to cause each such
Subsidiary (i) to keep any such registration statement and related
prospectus effective, current and in compliance with applicable federal
and state securities laws so long as required to satisfy applicable
prospectus delivery requirements and (ii) at the request of the
Collateral Agent at any time after the effective date of any such
registration statement, to use reasonable efforts to file
post-effective amendments to such registration statement so that the
Collateral Agent's sales of Pledged Shares or other Collateral will be
covered by a current prospectus and can be made in compliance with all
applicable federal and state securities laws. Nothing contained in this
Section 8.2(b) shall be deemed to require the preparation, filing or
effectiveness of more than one registration statement by any such
Subsidiary.
(c) Subject to the terms of the Collateral Agreement, the
Pledgor further agrees, after a Default with respect to Section 9.01(f)
or (g) of the Credit Agreement or an Event of Default shall have
occurred and be continuing, and upon written request from the
Collateral Agent, to (i) deliver and cause each of its Subsidiaries for
which capital stock is being registered to deliver to the Collateral
Agent such information as the Collateral Agent shall reasonably request
for inclusion in any registration statement,
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prospectus or offering memorandum or in any preliminary prospectus or
preliminary offering memorandum or any amendment or supplement to any
thereof or in any other writing prepared in connection with the offer,
sale or resale of all or any portion of the Pledged Shares or other
Collateral, which information shall not contain any untrue statement of
a material fact or omit to state a material fact required to be stated
or necessary to make such information not misleading, and (ii) do or
cause to be done all such other acts and things as may be necessary to
make such offer, sale or resale of all or any portion of the Pledged
Shares or other Collateral valid and binding and in compliance with any
and all applicable laws, regulations, orders, writs, injunctions,
decrees or awards of any and all courts, arbitrators or governmental
agencies or instrumentalities, domestic or foreign, having jurisdiction
over any such offer, sale or resale.
(d) Without limiting the foregoing paragraph, if the
Collateral Agent decides to exercise its right under this Section 8 to
sell all or any of the Pledged Shares or other Collateral, upon written
request, the Pledgor shall furnish or cause to be furnished to the
Collateral Agent all such information as the Collateral Agent may
request in order to qualify such Pledged Shares or other Collateral as
exempt securities, or the sale or resale of such Pledged Shares or
other Collateral as exempt transactions, under federal and state
securities laws. The Pledgor agrees to allow, and to cause each of its
Subsidiaries to allow, the Collateral Agent and any underwriter access
at reasonable times and places to the books, records and premises of
such Subsidiary; the Pledgor further agrees to assist, and cause each
of its Subsidiaries to assist, the Collateral Agent, any underwriter,
any agent of any thereof, and any counsel, accountant or other expert
for any thereof, in inspection, evaluation, and any other "due
diligence" action of or with respect to any such books, records and
premises; and the Pledgor further agrees to cause any independent
public accountant for each such Subsidiary to furnish letters to the
Collateral Agent and underwriters in customary form and covering
matters of the type customarily covered by such letters of accountants
for issuers to underwriters.
(e) The Pledgor further agrees to indemnify and hold
harmless the Administrative Agent, the Collateral Agent and the
Lenders, and each of their respective officers, directors, employees
and agents, successors, assigns and any Person in control of any
thereof, from and against any loss, liability, claim, damage and
expense, including, without limitation, counsel fees (in this paragraph
collectively called the "Indemnified Liabilities"), under federal and
state securities laws or otherwise insofar as such loss, liability,
claim, damage or expense arises (i) out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in
any registration statement, prospectus or offering memorandum or in any
preliminary prospectus or preliminary offering memorandum or any
amendment or supplement to any thereof or in any other writing prepared
in connection with the offer, sale or resale of all or any portion of
the Pledged Shares or other Collateral unless such untrue statement or
material fact was provided in writing by the Administrative Agent, the
Collateral Agent or any underwriter specifically for inclusion therein,
or (ii) out of or is based upon any omission or alleged omission to
state therein a material fact required to be stated or necessary to
make the statements therein not misleading, such indemnification to
remain operative regardless of any investigation made by or on behalf
of the Administrative Agent, the Collateral Agent or any successors
thereof, or any Person in control of any thereof. In connection with a
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public sale or other distribution, the Pledgor will provide customary
indemnification to any underwriters, their respective successors and
assigns, their respective officers and directors and each Person who
controls any such underwriter (within the meaning of the Securities Act
of 1933, as amended). If and to the extent that the foregoing
undertakings in this paragraph may be unenforceable for any reason, the
Pledgor agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The obligations of the Pledgor under
this clause (e) shall survive any termination of this Pledge Agreement.
SECTION 9
APPLICATION OF PROCEEDS
The proceeds of sale of Collateral sold pursuant to the terms of
Section 8 hereof and/or, after a Default with respect to Section 9.01(f) or (g)
of the Credit Agreement or an Event of Default, the cash held as Collateral
hereunder, shall be applied by the Collateral Agent toward the payment of the
Liabilities and all reasonable costs and expenses of the Collateral Agent
(whether or not such costs and expenses are incurred by the Collateral Agent on
its own behalf or on behalf of the Lenders) and the Collateral Agent's counsel
incurred in connection with the administration and enforcement of this Pledge
Agreement, the Credit Agreement and the other Related Documents, in such order
of application as the Collateral Agent may from time to time elect.
SECTION 10
AUTHORITY OF THE COLLATERAL AGENT; INDEMNIFICATION
The Collateral Agent shall have, and be entitled to exercise, all such
powers hereunder as are specifically delegated to the Collateral Agent by the
terms hereof, together with such powers as are incidental thereto. The
Collateral Agent may execute any of its duties hereunder by or through agents or
employees and shall be entitled to retain counsel and to act in reliance upon
the advice of such counsel concerning all matters pertaining to its duties
hereunder. Neither the Collateral Agent, nor any director, officer or employee
of the Collateral Agent shall be liable for any action taken or omitted to be
taken by it hereunder or in connection herewith, except for its own gross
negligence or willful misconduct. The Pledgor hereby agrees to reimburse the
Collateral Agent, on demand, for all reasonable costs and expenses incurred by
the Collateral Agent in connection with the administration and enforcement of
this Pledge Agreement (including, without limitation, reasonable costs and
expenses incurred by any agent employed by the Collateral Agent) and agrees to
indemnify (which indemnification shall survive any termination of this Pledge
Agreement) and hold harmless each Agent-Related Person (and any such agent
employed by the Collateral Agent) from and against any and all liability
incurred by such Agent-Related Person (or such agent employed by the Collateral
Agent) hereunder or in connection herewith, unless such liability shall be due
to gross negligence or willful misconduct on the part of such Agent-Related
Person, or such agent employed by the Collateral Agent, as the case may be.
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SECTION 11
TERMINATION
The Pledgor agrees that its pledge hereunder shall (notwithstanding,
without limitation, that at any time or from time to time all Liabilities may
have been paid in full) terminate only when all Liabilities (including, without
limitation, any extensions or renewals of any thereof) and all interest thereon
and all expenses (including, without limitation, reasonable attorneys' fees and
legal expenses) paid or incurred by the Administrative Agent, the Collateral
Agent or the holder or the holders of the Notes in endeavoring to enforce this
Pledge Agreement, the Credit Agreement and the other Related Documents to which
the Collateral Agent is a beneficiary shall have been finally paid in full and
all other obligations of the Pledgor hereunder and thereunder have been fully
performed, and all Commitments under the Credit Agreement have been terminated,
at which time the Collateral Agent shall reassign and redeliver (or cause to be
reassigned and redelivered) to the Pledgor, or to such Person or Persons as the
Pledgor shall designate, such of the Collateral (if any) as shall not have been
sold or otherwise applied by the Collateral Agent pursuant to the terms hereof
and shall still be held by it hereunder, together with appropriate instruments
of reassignment and release. Any such reassignment shall be without recourse
upon, or representation or warranty by, the Collateral Agent and at the sole
cost and expense of the Pledgor. Notwithstanding the foregoing, this Agreement
and the pledge hereunder shall immediately and permanently terminate under the
circumstances set forth in Section 4.02 of the Credit Agreement, upon which
termination the Collateral Agent shall effect the reassignment and redelivery of
the Collateral in accordance with the foregoing provisions of this Section 11.
SECTION 12
MISCELLANEOUS
SECTION 12.1 Amendments. No amendment, modification, termination or
waiver of any provision of this Pledge Agreement, and no consent to any
departure by the Pledgor herefrom, shall in any event be effective unless the
same shall be in writing and signed by the Collateral Agent and the Required
Lenders, and then any such amendment, modification, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 12.2 Captions. Section captions in this Pledge Agreement are
for convenience only, and shall not affect the construction of this Pledge
Agreement.
SECTION 12.3 Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex or telecopy
or similar writing) and shall be given to such party in accordance with the
notice provision in the Credit Agreement. Each such notice, request or other
communication shall be effective (a) if given by telex or telecopy, when such
telex is transmitted to the telex number as specified in the Credit Agreement
and the appropriate answer back is received, (b) if given by mail, three (3)
days after such communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid, (c) if given by facsimile, when such telecopy
is transmitted to the telecopy number as specified
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in the Credit Agreement and the appropriate confirmation is received, or (d) if
given by any other means, when delivered at the address specified in Section
11.02 of the Credit Agreement.
SECTION 12.4 Waivers. The Pledgor hereby expressly waives: (a) notice
of the acceptance by the Collateral Agent of this Pledge Agreement, (b) notice
of the existence or creation or non-payment of all or any of the Liabilities,
(c) presentment, demand, notice of dishonor, protest, and all other notices
whatsoever, and (d) all diligence in collection or protection of or realization
upon the Liabilities or any thereof, any obligation hereunder, or any security
for or guaranty of any of the foregoing.
SECTION 12.5 Further Assurances. The Pledgor agrees that, if at any
time all or any part of any payment theretofore applied by the Collateral Agent
to any of the Liabilities is or must be rescinded or returned by the Collateral
Agent for any reason whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of any of the Borrower or its Subsidiaries), such
Liabilities shall, for the purposes of this Pledge Agreement, to the extent that
such payment is or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Collateral Agent, and the
pledge by the Pledgor hereunder shall continue to be effective or be reinstated,
as the case may be, as to such Liabilities, all as though such application by
the Collateral Agent had not been made.
SECTION 12.6 SUBMISSION TO JURISDICTION; WAIVER OF VENUE. THE PLEDGOR
(A) HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY ILLINOIS STATE OR
FEDERAL COURT SITTING IN CHICAGO, ILLINOIS OVER ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS PLEDGE AGREEMENT AND THE PLEDGOR HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH ILLINOIS STATE OR FEDERAL COURT, AND (B) AGREES NOT TO
INSTITUTE ANY LEGAL ACTION OR PROCEEDING AGAINST THE ADMINISTRATIVE AGENT, THE
COLLATERAL AGENT OR THE DIRECTORS, OFFICERS, EMPLOYEES, ADMINISTRATIVE AGENT,
THE COLLATERAL AGENT OR PROPERTY OF THE COLLATERAL AGENT, ARISING OUT OF OR
RELATING TO THIS PLEDGE AGREEMENT, IN ANY COURT OTHER THAN AS HEREINABOVE
SPECIFIED IN THIS SECTION 12.6. THE PLEDGOR HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE IN ANY ACTION OR PROCEEDING (WHETHER BROUGHT BY THE PLEDGOR,
ANY SUBSIDIARY, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, OR OTHERWISE) IN
ANY COURT HEREINABOVE SPECIFIED IN THIS SECTION 12.6 AS WELL AS ANY RIGHT IT MAY
NOW OR HEREAFTER HAVE TO REMOVE ANY SUCH ACTION OR PROCEEDING, ONCE COMMENCED,
TO ANOTHER COURT ON THE GROUNDS OF FORUM NON CONVENIENS OR OTHERWISE. THE
PLEDGOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 12.7 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A
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TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM CONCERNING ANY
RIGHTS UNDER THIS PLEDGE AGREEMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH, OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH
THIS PLEDGE AGREEMENT, AND AGREE THAT ANY SUCH ACTION, PROCEEDING OR
COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY; THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE COLLATERAL AGENT ENTERING INTO THIS PLEDGE
AGREEMENT AND FOR THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT TO MAKE THE
LOANS PURSUANT TO THE CREDIT AGREEMENT.
SECTION 12.8 Governing Law; Terms; Interpretation. This Pledge
Agreement shall be a contract made under and governed by the laws of the state
of Illinois, without regard to its conflicts of law principles. All obligations
of the Pledgor and rights of the Collateral Agent expressed herein or in the
other Related Documents shall be in addition to and not in limitation of those
provided by applicable law. Wherever possible, each provision of this Pledge
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Pledge Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Pledge Agreement.
SECTION 12.9 Filing as a Financing Statement. At the option of the
Collateral Agent, this Pledge Agreement, or a carbon, photographic or other
reproduction of this Pledge Agreement or of any Uniform Commercial Code
financing statement covering the Collateral or any portion thereof, shall be
sufficient as a Uniform Commercial Code financing statement and may be filed as
such.
SECTION 12.10 Binding Agreement; Assignment. This Pledge Agreement, and
the terms, covenants and conditions hereof, shall be binding upon and inure to
the benefit of the parties hereto, and their successors and assigns, except the
Pledgor shall not be permitted to assign this Pledge Agreement nor any interest
herein nor in the Collateral, nor any part thereof.
SECTION 12.11 Conditions of Effectiveness. No action of the Collateral
Agent permitted hereunder shall in any way affect or impair the rights of the
Collateral Agent and the obligations of the Pledgor under this Pledge Agreement.
The Pledgor hereby acknowledges that there are no conditions to the
effectiveness of this Pledge Agreement which have not been satisfied
concurrently with or prior to Pledgor's execution and delivery of this Pledge
Agreement.
SECTION 12.12 Liabilities. All obligations of the Pledgor and rights of
the Collateral Agent (and any other holder of Notes or Liabilities expressed in
this Pledge Agreement) shall be in addition to and not in limitation of those
provided in applicable law or in any other written instrument or agreement
relating to any of the Liabilities.
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SECTION 12.13 Counterparts. This Pledge Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but all
such counterparts shall together constitute but one and the same Pledge
Agreement. The Pledgor hereby acknowledges receipt of a true, correct and
complete counterpart of this Pledge Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed as of the date first above written.
Address: DELPHI FINANCIAL GROUP, INC.
c/o Delphi Capital Management, Inc.
153 E. 53rd Steet, 49th Floor
New York, New York 10022 By: __________________________________
Robert M. Smith, Jr.
_________________________
Executive Vice President
_____________________________
Address: BANK OF AMERICA, N.A., as
231 South LaSalle Street Collateral Agent
Chicago, Illinois 60697
By: __________________________________
Name: ________________________________
Title: _______________________________