.
.
.
EXHIBIT 10.9
[NATIONAL CITY LOGO]
COMMERCIAL PLEDGE AGREEMENT
GRANTOR: SAFE AUTO GROUP, INC. LENDER: NATIONAL CITY BANK
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - CORPORATE BANKING ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THIS COMMERCIAL PLEDGE AGREEMENT DATED FEBRUARY 22, 2002 IS MADE AND EXECUTED
BETWEEN SAFE AUTO GROUP, INC. ("GRANTOR") AND NATIONAL CITY BANK ("LENDER").
GRANT OF SECURITY INTEREST. FOR VALUABLE CONSIDERATION, GRANTOR GRANTS TO LENDER
A SECURITY INTEREST IN THE COLLATERAL TO SECURE THE INDEBTEDNESS AND AGREES THAT
LENDER SHALL HAVE THE RIGHTS STATED IN THIS AGREEMENT WITH RESPECT TO THE
COLLATERAL, IN ADDITION TO ALL OTHER RIGHTS WHICH LENDER MAY HAVE BY LAW.
COLLATERAL DESCRIPTION. The word "Collateral" as used in this Agreement means
all of Grantor's property (however owned if more than one), in the possession of
Lender (or in the possession of a third party subject to the control of Lender),
whether existing now or later and whether tangible or intangible in character,
including without limitation each and all of the following:
100 SHARES OF SAFE AUTO INSURANCE COMPANY STOCK, CERTIFICATE NO. 1
In addition, the word "Collateral" includes all of Grantor's property (however
owned), in the possession of Lender (or in the possession of a third party
subject to the control of Lender), whether now or hereafter existing and whether
tangible or intangible in character, including without limitation each of the
following:
(A) ALL PROPERTY TO WHICH LENDER ACQUIRES TITLE OR DOCUMENTS OF TITLE.
(B) ALL PROPERTY ASSIGNED TO LENDER.
(C) ALL PROMISSORY NOTES, BILLS OF EXCHANGE, STOCK CERTIFICATES, BONDS,
SAVINGS PASSBOOKS, TIME CERTIFICATES OF DEPOSIT, INSURANCE POLICIES,
AND ALL OTHER INSTRUMENTS AND EVIDENCES OF AN OBLIGATION.
(D) ALL RECORDS RELATING TO ANY OF THE PROPERTY DESCRIBED IN THIS
COLLATERAL SECTION, WHETHER IN THE FORM OF A WRITING, MICROFILM,
MICROFICHE, OR ELECTRONIC MEDIA.
(E) ALL INCOME AND PROCEEDS FROM THE COLLATERAL AS DEFINED HEREIN.
CROSS-COLLATERALlZATION. In addition to the Note, this Agreement secures all
obligations, debts and liabilities, plus interest thereon, of Grantor to Lender,
or any one or more of them, as well as all claims by Lender against Grantor or
any one or more of them, whether now existing or hereafter arising, whether
related or unrelated to the purpose of the Note, whether voluntary or otherwise,
whether due or not due, direct or indirect, determined or undetermined, absolute
or contingent, liquidated or unliquidated whether Grantor may be liable
individually or jointly with others, whether obligated as guarantor, surety,
accommodation party or otherwise, and whether recovery upon such amounts may be
or hereafter may become barred by any statute of limitations, and whether the
obligation to repay such amounts may be or hereafter may become otherwise
unenforceable.
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. Grantor
represents and warrants to Lender that:
OWNERSHIP. Grantor is the lawful owner of the Collateral free and clear of
all security interests, liens, encumbrances and claims of others except as
disclosed to and accepted by Lender in writing prior to execution of this
Agreement.
RIGHT TO PLEDGE. Grantor has the full right, power and authority to enter
into this Agreement and to pledge the Collateral.
AUTHORITY; BINDING EFFECT. Grantor has the full right, power and authority
to enter into this Agreement and to grant a security interest in the
Collateral to Lender. This Agreement is binding upon Grantor as well as
Grantor's successors and assigns, and is legally enforceable in accordance
with its terms. The foregoing representations and warranties, and all
other representations and warranties contained in this Agreement are and
shall be continuing in nature and shall remain in full force and effect
until such time as this Agreement is terminated or cancelled as provided
herein.
NO FURTHER ASSIGNMENT. Grantor has not, and shall not, sell, assign,
transfer, encumber or otherwise dispose of any of Grantor's rights in the
Collateral except as provided in this Agreement.
NO DEFAULTS. There are to defaults existing under the Collateral, and there
are no offsets or counterclaims to the same. Grantor will strictly and
promptly perform each of the terms, conditions, covenants and agreements,
if any, contained in the Collateral which are to be performed by Grantor.
NO VIOLATION. The execution and delivery of this Agreement will not violate
any law or agreement governing Grantor or to which Grantor is a party, and
its certificate or articles of incorporation and bylaws or code of
regulations do not prohibit any term or condition of this Agreement.
FINANCING STATEMENTS. Grantor authorizes Lender to file a UCC-1 financing
statement, or alternatively, a copy of this Agreement to perfect Lender's
security interest. At Lender's request, Grantor additionally agrees to sign
all other documents that are necessary to perfect, protect, and continue
Lender's security interest in the Property. Grantor will pay all filing,
fees, title transfer fees, and other fees and costs involved unless
prohibited by law or unless Lender is required by law to pay such fees and
costs. Grantor irrevocably appoints Lender to execute financing statements
and documents of title in Grantor's name and to execute all documents
necessary to transfer title if there is a default. Lender may file a copy
of this Agreement as a financing statement. If Grantor changes Grantor's
name or address, or the name or address of any person granting a security
interest under this Agreement changes, Grantor will promptly notify the
Lender of such change.
LENDER'S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE COLLATERAL. Lender may hold
the Collateral until all Indebtedness has been paid and satisfied. Thereafter
Lender may deliver the Collateral to Grantor or to any other owner of the
Collateral. Lender shall have the following rights in addition to all other
rights Lender may have by law:
MAINTENANCE AND PROTECTION OF COLLATERAL. Lender may, but shall not be
obligated to, take such steps as it deems necessary or desirable to
protect, maintain, insure, store, or care for the Collateral, including
paying of any liens or claims against the Collateral. This may include such
things as hiring other people, such as attorneys, appraisers or other
experts. Lender may charge Grantor for any cost incurred in so
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED) PAGE 2
doing. When applicable law provides more than one method of perfection of
Lender's security interest, Lender may choose the method(s) to be used. If
the Collateral consists of stock, bonds or other investment property for
which no certificate has been issued, Grantor agrees, at Lender's request,
either to request issuance of an appropriate certificate or to give
instructions on Lender's forms to the issuer, transfer agent, mutual fund
company, or broker, as the case, may be, to record on its books or records
Lender's security interest in the Collateral.
INCOME AND PROCEEDS FROM THE COLLATERAL. Lender may receive all Income and
Proceeds and add it to the Collateral. Grantor agrees to deliver to Lender
immediately upon receipt, in the exact form received and without
commingling with other property, all Income and Proceeds from the
Collateral which may be received by, paid, or delivered to Grantor or for
Grantor's account, whether as an addition to, in discharge of, in
substitution of, or in exchange for any of the Collateral.
APPLICATION OF CASH. At Lender's option, Lender may apply any cash, whether
included in the Collateral or received as Income and Proceeds or through
liquidation, sale, or retirement, of the Collateral, to the satisfaction of
the Indebtedness or such portion thereof as Lender shall choose, whether or
not matured.
TRANSACTIONS WITH OTHERS. Lender may (1) extend time for payment or other
performance, (2) grant a renewal or change in terms or conditions, or (3)
compromise, compound or release any obligation, with any one or more
Obligors, endorsers, or Guarantors of the Indebtedness as Lender deems
advisable, without obtaining the prior written consent of Grantor, and no
such act or failure to act shall affect Lender's rights against Grantor or
the Collateral.
ALL COLLATERAL SECURES INDEBTEDNESS. All Collateral shall be security for
the Indebtedness, whether the Collateral is located at one or more offices
or branches of Lender. This will be the case whether or not the office or
branch where Grantor obtained Grantor's loan knows about the Collateral or
relies upon the Collateral as security.
COLLECTION OF COLLATERAL. Lender at Lender's option may, but need not,
collect the Income and Proceeds directly from the Obligors. Grantor
authorizes and directs the Obligors, if Lender decides to collect the
Income and Proceeds, to pay and deliver to Lender all Income and Proceeds
from the Collateral and to accept Lender's receipt for the payments.
POWER OF ATTORNEY. Grantor irrevocably appoints Lender as Grantor's
attorney-in-fact, with full power of substitution, (a) to demand, collect,
receive, receipt for, ▇▇▇ and recover all Income and Proceeds and other
sums of money and other property which may now or hereafter become due,
owing or payable from the Obligors in accordance with the terms of the
Collateral; (b) to execute, sign and endorse any and all instruments,
receipts, checks, drafts and warrants issued in payment for the Collateral;
(c) to settle or compromise any and all claims arising under the
Collateral, and in the place and stead of Grantor, execute and deliver
Grantor's release and acquittance for Grantor; (d) to file any claim or
claims or to take any action or institute or take part in any proceedings,
either in Lender's own name or in the name of Grantor, or otherwise, which
in the discretion of Lender may seem to be necessary or advisable; and (e)
to execute in Grantor's name and to deliver to the Obligors on Grantor's
behalf, at the time and in the manner specified by the Collateral, any
necessary instruments or documents.
PERFECTION OF SECURITY INTEREST. Upon Lender's request, Grantor will
deliver to Lender any and all of the documents evidencing or constituting
the Collateral. When applicable law provides more than one method of
perfection of Lender's security interest, Lender may choose the method(s)
to be used. Upon Lender's request, Grantor will sign and deliver any
writings necessary to perfect Lender's security interest. If any of the
Collateral consists of securities for which no certificate has been issued,
Grantor agrees, at Lender's option, either to request issuance of an
appropriate certificate or to execute appropriate instructions on Lender's
forms instructing the issuer, transfer agent, mutual fund company, or
broker, as the case may be, to record on its books or records, by
book-entry or otherwise, Lender's security interest in the Collateral.
Grantor hereby appoints Lender as Grantor's irrevocable attorney-in-fact
for the purpose of executing any documents necessary to perfect, amend, or
to continue the security interest granted in this Agreement or to demand
termination of filings of other secured parties.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Grantor fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Grantor's failure to discharge or pay when due any amounts
Grantor is required to discharge or pay under this Agreement or any Related
Documents, Lender on Grantor's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on the Collateral and paying all
costs for insuring, maintaining and preserving the Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Grantor. All such expenses will become a
part of the Indebtedness and, at Lender's option, will (A) be payable on
demand; (B) be added to the balance of the Note and be apportioned among and be
payable with any installment payments to become due during either (1) the term
of any applicable insurance policy; or (2) the remaining term of the Note; or
(C) be treated as a balloon payment which will be due and payable at the Note's
maturity. The Agreement also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Lender may be
entitled upon Default.
LIMITATIONS ON OBLIGATIONS OF LENDER. Lender shall use ordinary reasonable care
in the physical preservation and custody of the Collateral in Lender's
possession, but shall have no other obligation to protect the Collateral or its
value. In particular, but without limitation, Lender shall have no
responsibility for (A) any depreciation in value of the Collateral or for the
collection or protection of any Income and Proceeds from the Collateral, (B)
preservation of rights against parties to the Collateral or against third
persons, (C) ascertaining any maturities, calls, conversions, exchanges, offers,
tenders, or similar matters relating to any of the Collateral, or (D) informing
Grantor about any of the above, whether or not Lender has or is deemed to have
knowledge of such matters. Except as provided above, Lender shall have no
liability for depreciation or deterioration of the Collateral.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
PAYMENT DEFAULT. Grantor fails to make any payment when due under the
Indebtedness.
OTHER DEFAULTS. Grantor fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Agreement or in any of
the Related Documents or to comply with or to perform any term, obligation,
covenant or condition contained in any other agreement between Lender and
Grantor.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Grantor or on Grantor's behalf under this Agreement
or the Related Documents is false or misleading in any material respect,
either now or at the time made or furnished or becomes false or misleading
at any time thereafter.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
document to create a valid and perfected security interest or lien) at any
time and for any reason.
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED) PAGE 3
INSOLVENCY. The dissolution or termination of Grantor's existence as a
going business, the insolvency of Grantor, the appointment of a receiver
for any part of Grantor's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Grantor.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Grantor or by any
governmental agency against any collateral securing the Indebtedness. This
includes a garnishment of any of Grantor's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if
there is a good faith dispute by Grantor as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Grantor gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, of being an adequate reserve
or bond for the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with respect
to Guarantor of any of the Indebtedness or Guarantor dies or becomes
incompetent or revokes or disputes the validity of, or liability under,
any Guaranty of the Indebtedness.
ADVERSE CHANGE. A material adverse change occurs in Grantor's financial
condition, or Lender believes the prospect of payment or performance of the
Indebtedness is impaired.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement, at any time thereafter, Lender may exercise any one or more of the
following rights and remedies:
ACCELERATE INDEBTEDNESS. Declare all Indebtedness, including any prepayment
penalty which Grantor would be required to pay, immediately due and
payable, without notice of any kind to Grantor.
COLLECT THE COLLATERAL. Collect any of the Collateral and, at Lender's
option and to the extent permitted by applicable law, retain possession of
the Collateral while suing on the Indebtedness.
SELL THE COLLATERAL. Sell the Collateral, at Lender's discretion, as a unit
or in parcels, at one or more public or private sales. Unless the
Collateral is perishable or threatens to decline speedily in value or is of
a type customarily sold on a recognized market, Lender shall give or mail
to Grantor, and other persons as required by law, notice at least ten (10)
days in advance of the time and place of any public sale, or of the time
after which any private sale may be made. However, no notice need be
provided to any person who, after an Event of Default occurs, enters into
and authenticates an agreement waiving that person's right to notification
of sale. Grantor agrees that any requirement of reasonable notice as to
Grantor is satisfied if Lender mails notice by ordinary mail addressed to
Grantor at the last address Grantor has given Lender in writing. If a
public sale is held, there shall be sufficient compliance with all
requirements of notice to the public by a single publication in any
newspaper of general circulation in the county where the Collateral is
located, setting forth the time and place of sale and a brief description
of the property to be sold. Lender may be a purchaser at any public sale.
SELL SECURITIES. Sell any securities included in the Collateral in a manner
consistent with applicable federal and state securities laws. If, because
of restrictions under such laws Lender is unable, or believes, Lender is
unable, to sell the securities in an open market transaction, Grantor
agrees that Lender will have no obligation to delay sale until the
securities can be registered. Then Lender may make a private sale to one or
more persons or to a restricted group of persons, even though such sale may
result in a price than is less favorable than might be obtained in an open
market transaction. Such a sale will be considered commercially reasonable.
If any securities held as Collateral are "restricted securities" as defined
in the Rules of the Securities and Exchange Commission (such as Regulation
D or Rule 144) or the rules of state securities departments under state
"BLUE SKY" laws, or if Grantor or any other owner of the Collateral is an
affiliate of the issuer of the securities, Grantor agrees that neither
Grantor, nor any member of Grantor's family, nor any other person signing
this Agreement will sell or dispose of any securities of such issuer
without obtaining Lender's prior written consent.
RIGHTS AND REMEDIES WITH RESPECT TO INVESTMENT PROPERTY, FINANCIAL ASSETS
AND RELATED COLLATERAL. In addition to other rights and remedies granted
under this Agreement and under applicable law, Lander may exercise any or
all of the following rights and remedies: (1) register with any issuer or
broker or other securities intermediary any of the Collateral consisting of
investment property or financial assets (collectively herein, "investment
property") in Lender's sole name or in the name of Lender's broker, agent
or nominee; (2) cause any issuer, broker or other securities intermediary
to deliver to Lender any of the Collateral consisting of securities, or
investment property capable of being delivered; (3) enter into a control
agreement or power of attorney with any issuer or securities intermediary
with respect to any Collateral consisting of investment property, on such
terms as Lender may deem appropriate, in its sole discretion, including
without limitation, an agreement granting to Lender any of the rights
provided hereunder without further notice to or consent by Grantor; (4)
execute any such control agreement on Grantor's behalf and in Grantor's
name, and hereby irrevocably appoints Lender as agent and attorney-in-fact,
coupled with an interest, for the purpose of executing such control
agreement on Grantor's behalf; (5) exercise any and all rights of Lender
under any such control agreement or power of attorney; (6) exercise any
voting, conversion, registration, purchase, option, or other rights with
respect to any Collateral; (7) collect, with or without legal action, and
issue receipts concerning any notes, checks, drafts, remittance or
distributions that are paid or payable with respect to any Collateral
consisting of investment property. Any control agreement entered with
respect to any investment property shall contain the following provisions,
at Lender's discretion. Lender shall be authorized to instruct the issuer,
broker or other securities intermediary to take or to refrain from taking
such actions with respect to the investment property as Lender may
instruct, without further notice to or consent by Grantor. Such actions may
include without limitation the issuance of entitlement orders, account
instructions, general trading or buy or sell orders, transfer and
redemption orders, and stop loss orders. Lender shall be further entitled
to instruct the issuer, broker or securities intermediary to sell or to
liquidate any investment property, or to pay the cash surrender or account
termination value with respect to any and all investment property, and to
deliver all such payments and liquidation proceeds to Lender. Any such
control agreement shall contain such authorizations as are necessary to
place Lender in "control" of such investment collateral, as contemplated
under the provisions of the Uniform Commercial Code, and shall fully
authorize Lender to issue "entitlement orders" concerning the transfer,
redemption, liquidation or disposition of investment collateral, in
conformance with the provisions of the Uniform Commercial Code.
FORECLOSURE. Maintain a judicial suit for foreclosure and sale of the
Collateral.
TRANSFER TITLE. Effect transfer of title upon sale of all or part of the
Collateral. For this purpose, Grantor irrevocably appoints Lender as
Grantor's attorney-in-fact to execute endorsements, assignments and
instruments in the name of Grantor and each of them (if more than one) as
shall be necessary or reasonable.
OTHER RIGHTS AND REMEDIES. Have and exercise any or all of the rights and
remedies of a secured creditor under the provisions of the Uniform
Commercial Code, at law, in equity, or otherwise.
APPLICATION OF PROCEEDS. Apply any cash which is part of the Collateral, or
which is received from the collection or sale of the Collateral, to
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED) PAGE 4
reimbursement of any expenses, including any costs for registration of
securities, commissions incurred in connection with a sale, attorneys' fees
and court costs, whether or not there is a lawsuit and including any fees
on appeal, incurred by Lender in connection with the collection and sale of
such Collateral and to the payment of the Indebtedness of Grantor to
Lender, with any excess funds to be paid to Grantor as the interests of
Grantor may appear. Grantor agrees, to the extent permitted by law, to pay
any deficiency after application of the proceeds of the Collateral to the
Indebtedness.
ELECTION OF REMEDIES. Except as may be prohibited by applicable law, all of
Lender's rights and remedies, whether evidenced by this Agreement, the
Related Documents, or by any other writing, shall be cumulative and may be
exercised singularly or concurrently. Election by Lender to pursue any
remedy shall not exclude pursuit of any other remedy, and an election to
make expenditures or to take action to perform an obligation of Grantor
under this Agreement, after Grantor's failure to perform, shall not affect
Lender's right to declare a default and exercise its remedies.
FINANCIAL INFORMATION. Grantor will furnish to Lender, at Grantor's expense,
promptly upon each request of Lender, such information in writing regarding
Grantor's financial condition, income taxes, properties, business operations, if
any, and pension plans, if any, as Lender may from time to time reasonably
request, prepared, in the case of financial information, in accordance with
generally accepted accounting principles consistently applied and otherwise in
form and detail satisfactory to Lender.
SHARING INFORMATION. Grantor hereby authorizes Lender to share all credit and
financial information relating to Grantor with Lender's parent company and with
any subsidiary or affiliate of Lender or of Lender's parent company.
ADDITIONAL PROVISION. THE WORD "INDEBTEDNESS" SHALL ALSO MEAN ANY AND ALL
OBLIGATIONS AND LIABILITIES OF GRANTOR, WHETHER ABSOLUTE OR CONTINGENT, WHETHER
NOW EXISTING OR HEREAFTER CREATED, ARISING, EVIDENCED OR ACQUIRED (INCLUDING ALL
RENEWALS, EXTENSIONS AND MODIFICATIONS THEREOF AND SUBSTITUTIONS THEREFOR) UNDER
(i) ANY AGREEMENT, DEVICE OR ARRANGEMENT DESIGNED TO PROTECT GRANTOR FROM
FLUCTUATIONS OF INTEREST RATES, EXCHANGE RATES OR FORWARD RATES, INCLUDING, BUT
NOT LIMITED TO, DOLLAR-DENOMINATED OR CROSS-CURRENCY EXCHANGE AGREEMENTS
FORWARD CURRENCY EXCHANGE AGREEMENTS, INTEREST RATE CAPS, COLLARS OR FLOORS,
FORWARD RATE CURRENCY OR INTEREST RATE OPTIONS, PUTS, WARRANTS, SWAPS,
SWAPTIONS, U.S. TREASURY LOCKS AND U.S. TREASURY OPTIONS, (ii) ANY OTHER
INTEREST RATE HEDGING TRANSACTIONS, SUCH AS, BUT NOT LIMITED TO, MANAGING THE
GRANTOR'S INTEREST RATS RISK ASSOCIATED WITH ANY PENDING OR POTENTIAL CAPITAL
MARKET TRANSACTIONS SUCH AS FIXED RATE BOND ISSUES, AND (iii) ANY AND ALL
CANCELLATIONS, BUY BACKS, REVERSALS, TERMINATIONS OR ASSIGNMENTS OF ANY OF THE
FOREGOING.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Agreement. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the alteration or
amendment.
ATTORNEYS' FEES; EXPENSES. Grantor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce this
Agreement, and Grantor shall pay the cost and expenses of such enforcement.
Costs and expenses include Lender's attorneys' fees and legal expenses
whether or not there is a lawsuit, including attorneys' fees and legal
expenses for bankruptcy proceedings (including efforts to modify or vacate
any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Grantor also shall pay all court costs
and such additional fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Agreement.
GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED AND ENFORCED
IN ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF OHIO. THIS
AGREEMENT HAS BEEN ACCEPTED BY LENDER IN THE STATE OF OHIO.
CHOICE OF VENUE. If there is a lawsuit, Grantor agrees upon Lender's
request to submit to the jurisdiction of the courts of Franklin County,
State of Ohio.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed by
Lender, No delay or omission on the part of Lender in exercising any right
shall operate as waiver of such right or any other right. A Waiver by
Lender of a provision of this Agreement shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by
Lender, nor any course of dealing between Lender and Grantor, shall
constitute a waiver of any of Lender's rights or of any of Grantor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Agreement, the granting of such consent by Lender
in any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Lender.
NOTICES. Any notice required to be given under this Agreement shall be
given in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law),
when deposited with a nationally recognized overnight courier, or, if
mailed, when deposited in the United States mail, as first class, certified
or registered mail postage prepaid, directed to the addresses shown near
the beginning of this Agreement. Any party may change its address for
notices under this Agreement by giving formal written notice to the other
parties, specifying that the purpose of the notice is to change the party's
address. For notice purposes, Grantor agrees to keep Lender informed at all
times of Grantor's current address. Unless otherwise provided or required
by law, if there is more than one Grantor, any notice given by Lender to
any Grantor is deemed to be notice given to all Grantors.
SEVERABILITY. If a court of competent jurisdiction finds any provision of
this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Agreement. Unless otherwise required
by law the illegality, invalidity, or unenforceability of any provision of
this Agreement shall not affect the legality, validity or enforceability
of any other provision of this Agreement.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this
Agreement on transfer of Grantor's interest, this Agreement shall be
binding upon and inure to the benefit of the parties, their successors and
assigns. If ownership of the Collateral becomes vested in a person other
than Grantor Lender, without notice to Grantor, may deal with Grantor's
successors with reference to this Agreement and the indebtedness by way of
forbearance or extension without releasing Grantor from the obligations of
this Agreement or liability under the Indebtedness.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of this
Agreement.
WAIVE JURY. ALL PARTIES TO THIS AGREEMENT HEREBY WAIVE THE RIGHT TO ANY
ANY JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY ANY
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED) PAGE 5
PARTY AGAINST ANY OTHER PARTY.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code:
AGREEMENT. The word "agreement" means this Commercial Pledge Agreement,
as this Commercial Pledge Agreement may be amended or modified from time to
time, together with all exhibits and schedules attached to this Commercial
Pledge Agreement from time to time.
BORROWER. The word "Borrower" means Safe Auto Group, Inc., and all other
persons and entities signing the Note in whatever capacity.
COLLATERAL. The word "Collateral" means all of Grantor's right, title and
interest in and to all the Collateral as described in the Collateral
Description section of this Agreement.
DEFAULT. The word "Default" means the Default set forth in this Agreement
in the section titled "Default".
EVENT OF DEFAULT. The words "Event of Default" mean any of the events of
default set forth in this Agreement in the default section of this
Agreement.
GRANTOR. The word "Grantor" means Safe Auto Group, Inc..
GUARANTOR. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Indebtedness.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
INCOME AND PROCEEDS. The words "Income and Proceeds" mean all present and
future income, proceeds, earnings, increases, and substitutions from or for
the Collateral of every kind and nature, including without limitation all
payments, interest, profits, distributions, benefits, rights, options,
warrants, dividends, stock dividends, stock splits, stock rights,
regulatory dividends, subscriptions, monies, claims for money due and to
become due, proceeds of any insurance on the Collateral, shares of stock of
different par value or no par value issued in substitution or exchange for
shares included in the Collateral, and all other property Grantor is
entitled to receive on account of such Collateral, including accounts,
documents, instruments, chattel paper, and general intangible.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced by
the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Grantor is responsible under this Agreement or under any of the Related
Documents.
LENDER. The Word "Lender" means National City Bank, its successors and
assigns.
NOTE. The word "Note" means Promissory Note (including renewal or
extention) now or hereafter made to Borrower by Bank.
OBLIGOR. The word "Obligor" means without limitation any and all persons
obligated to pay money or to perform some other act under the Collateral.
PROPERTY. The word "Property" means all of Grantor's right, title and
interest in and to all the Property as described in the "Collateral
Description" section of this Agreement.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
GRANTOR HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL PLEDGE
AGREEMENT AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED February 22, 2002
GRANTOR:
SAFE AUTO GROUP, INC.
BY: /s/ ▇▇▇ ▇▇▇▇▇.
---------------------------------------------------------
▇▇▇ ▇▇▇▇▇, Chairman and CEO of Safe Auto Group, Inc.