EXHIBIT 10.3
SIG HOLDINGS PLEDGE AGREEMENT
dated as of December 16, 2002
between
SIG HOLDINGS, INC.
and
BANK OF AMERICA, N.A.,
as Collateral Agent
SIG HOLDINGS PLEDGE AGREEMENT
THIS SIG HOLDINGS PLEDGE AGREEMENT (this "Agreement"), dated
as of December 16, 2002, is made by and between SIG HOLDINGS, 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 is the SIG Holdings 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 Delphi
Financial Group, Inc. (the "Borrower"), the Lenders who are or from time to time
become party thereto (the "Lenders"), and Bank of America as Administrative
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
Safety National;
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,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Chase" shall mean JPMorganChase Bank (as successor to The
Chase Manhattan Bank), in its capacity as collateral agent under the SIG Pledge
Agreement.
"Collateral" - see Section 2.
"Collateral Agent" shall mean Bank of America.
"Credit Agreement" - see Preamble.
"Intercreditor Agreement" shall mean the Intercreditor
Agreement dated as of December 16, 2002 between Chase and the Collateral Agent
and acknowledged and accepted by Pledgor, as the same may be amended, modified,
supplemented, restated or renewed from time to time.
"Pledged Shares" - see Section 2.
"Safety National" shall mean Safety National Casualty
Corporation, a Missouri insurance corporation, and any successor thereof.
"SIG Pledge Agreement" shall mean that certain Pledge
Agreement, dated as of May 20, 1994, between SIG Holdings and Chase, as amended
by the terms of the Intercreditor Agreement, as the same may be amended or
modified in accordance with the terms of the Credit Agreement.
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, and subject to the terms of the Intercreditor Agreement, 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 Safety National 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 Safety National
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 Chase
on the books and records of Safety National in the
name of Chase so long as the SIG Pledge Agreement is
in effect and in the name of the Collateral Agent at
all times thereafter 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 Chase or
the Collateral Agent, as the case may be, by the
Pledgor in substitution for or in addition to any of
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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 records of Safety National in the name of
Chase so long as the SIG Pledge Agreement is in
effect and the Collateral Agent at all times
thereafter, 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 the SIG Pledge Agreement, the SIG Note
Agreement and the Intercreditor 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 Safety National)
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 Chase or the Collateral Agent, as
the case may be, such Collateral 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 interests of Chase, and the interests of
the holders of the SIG Notes pursuant to the SIG
Pledge Agreement, the Collateral Agent has and
(assuming Chase, as agent for the Collateral Agent
and the Lenders, or the Collateral Agent, as the case
may be, maintain 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 9.1 of the Credit
Agreement);
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(c) To the extent any Pledged Shares are evidenced by
certificates, the Pledgor has delivered to Chase, for
the benefit of the holders of the SIG Notes, or, if
the SIG Pledge Agreement is no longer in effect, 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 Safety National;
(e) The Pledgor will, at all times, keep pledged to the
Collateral Agent pursuant hereto all shares of the
capital stock of Safety National;
(f) Subject to the terms of the SIG Pledge Agreement and
the Intercreditor Agreement, 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 and interest paid on such Collateral prior
to the occurrence of a Default under Section 9.01(f)
of the Credit Agreement or an Event of Default). As
of the date of any such delivery of additional shares
or certificates to Chase or the Collateral Agent, as
the case may be, 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 and under the SIG
Pledge Agreement, (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 Chase, the Collateral
Agent, as the case may be, pursuant to this Pledge
Agreement, (iii) subject to the Lien of Chase and the
holders of the SIG Notes pursuant to the SIG Pledge
Agreement, 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(a) and (b) of the Credit Agreement) and (iv) it
has pledged to Chase or the Collateral Agent, as the
case may be, as at such date, all of the capital
stock of Safety National;
(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 and the Lien granted to Chase and the holders of
the SIG Notes pursuant to the SIG Pledge Agreement, with full right
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to deliver, pledge, assign and transfer such Collateral to Chase or the
Collateral Agent, as the case may be, 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) Safety National is a corporation duly organized,
validly existing and in good standing under the laws
of its state of incorporation;
(c) The Pledgor and Safety National 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.
SECTION 4
COVENANTS
So long as any of the Liabilities remain outstanding and the
Commitments have not been terminated, subject to the terms of the Intercreditor
Agreement and the SIG Pledge
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Agreement, the Pledgor will, unless the Collateral Agent and the Required
Lenders shall otherwise consent in writing:
(a) At its sole expense, promptly deliver to Chase or the
Collateral Agent, as the case may be, 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 Chase or the
Collateral Agent, as the case may be, 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, the SIG Pledge
Agreement or the SIG Note Agreement;
(d) Except as required by the SIG Pledge Agreement, 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, the Lien of the Collateral Agent
and the holders of the SIG Notes pursuant to the SIG
Pledge Agreement and Permitted Liens provided for in
Section 8.01(a) or (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
and certificates of Safety National; and
(f) Promptly cause Safety National, upon the issuance of
any uncertificated securities, to note the Lien of
the Collateral Agent in its books and records in the
name of Chase so long as the SIG Pledge Agreement is
in effect and in the name of the Collateral Agent at
all times thereafter.
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
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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.
SECTION 6
CERTAIN RIGHTS REGARDING COLLATERAL AND LIABILITIES
SECTION 6.1 Permitted Action. Subject to Section 6.3 and Section 7
hereof and the terms of the SIG Pledge Agreement and the Intercreditor
Agreement, the Collateral Agent may, from time to time after the occurrence of
any Default with respect to Section 9.01(f) 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 Borrower or 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
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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
(e) upon the occurrence and during the continuance of a
Default with respect to Section 9.01(f) 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) of the Credit Agreement or an Event of Default. After
the occurrence of a Default with respect to Section 9.01(f) of the Credit
Agreement or an Event of Default, subject to the terms of the SIG Pledge
Agreement and the Intercreditor Agreement, 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. Subject to the
terms of the SIG Pledge Agreement and the Intercreditor Agreement, the Pledgor
agrees to deliver (properly endorsed when required) to the Collateral Agent,
after a Default with respect to Section 9.01(f) 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) of the Credit Agreement or Event of Default shall have occurred and be
continuing:
(a) Subject to the provisions of the Credit Agreement,
the SIG Pledge Agreement and the Intercreditor
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
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outstanding capital stock of Safety National 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 Safety National 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.
(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) 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, subject to the terms of the SIG
Pledge Agreement and the Intercreditor Agreement, 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) subject to the terms of the SIG Pledge Agreement and the
Intercreditor Agreement, 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) of the Credit Agreement
or an Event of Default, and notwithstanding any provision contained herein to
the contrary, subject to the requirements of the Applicable Insurance Code and
the terms of the Intercreditor Agreement, 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
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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. Subject
to the terms of the Intercreditor Agreement, 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.
(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, obtaining 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) Subject to the terms of the SIG Pledge Agreement and
the Intercreditor Agreement and 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) 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 Safety National 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
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sales under the securities laws of such jurisdictions
as the Collateral Agent may designate and shall cause
Safety National to enter into and perform its
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
Safety National (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 Safety National.
(c) Subject to the terms of the SIG Pledge Agreement and
the Intercreditor Agreement, the Pledgor further
agrees, after a Default with respect to Section
9.01(f) 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 Safety National to deliver to
the Collateral Agent such information as the
Collateral Agent shall reasonably request for
inclusion 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, 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
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securities laws. The Pledgor agrees to allow, and to
cause Safety National to allow, the Collateral Agent
and any underwriter access at reasonable times and
places to the books, records and premises of Safety
National; the Pledgor further agrees to assist, and
cause Safety National 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
Safety National to furnish a letter to the Collateral
Agent and underwriters in customary form and covering
matters of the type customarily covered by letters of
accountants for issuers to underwriters.
(e) The Pledgor further agrees to indemnify and hold
harmless the Collateral Agent, the Administrative
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 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 Collateral
Agent or any successors thereof, or any Person in
control of any thereof. In connection with a 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.
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SECTION 9
APPLICATION OF PROCEEDS
Subject to the terms of the Intercreditor Agreement, 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) 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 the Collateral Agent (and any such agent employed
by the Collateral Agent) from and against any and all liability incurred by the
Collateral Agent (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 the Collateral Agent, or such agent
employed by the Collateral Agent, as the case may be.
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 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
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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 mail, three (3) days after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, (b) if given by facsimile, when such telecopy is
transmitted to the telecopy number as specified in the Credit Agreement and the
appropriate confirmation is received, or (c) 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,
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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 COLLATERAL AGENT OR THE
DIRECTORS, OFFICERS, EMPLOYEES, 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 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 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 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
15
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.
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: SIG HOLDINGS, INC.
c/o Delphi Capital Management, Inc.
153 E. 53rd Street, 49th Floor
New York, New York 10022 By: _______________________________
Robert M. Smith, Jr.
Vice President
Address: BANK OF AMERICA, N.A., as
231 South LaSalle Street Collateral Agent
Chicago, IL 60697
By: _______________________________
Name: _____________________________
Its: ______________________________