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EXHIBIT 16.2
PLEDGE AGREEMENT
THIS STOCK PLEDGE AND SECURITY AGREEMENT, made this 17th day of April,
2001 (the "Pledge Agreement"), by and between PF Management, Inc. a North
Carolina corporation with principal offices in Hickory, North Carolina
("Pledgor"), C. Xxxxxxx Xxxxxx ("Pledgee"), Xxxxx X. Xxxxxxxxxx, Xx.
("Xxxxxxxxxx") and T. Xxxxxxx Xxxxxx ("Agent").
WITNESSETH:
WHEREAS, Pledgor is the legal and beneficial owner of 21,671 shares of
stock of Pierre Foods, Inc. ("Pierre Foods") (formerly known as Fresh Foods,
Inc.) as shown on Exhibit A (the "Pledged Shares") attached and incorporated
herein by reference; and
WHEREAS, pursuant to a certain assumption agreement dated as of the
date hereof (the "Assumption Agreement"), by and among the Pledgor, Pledgee, and
Xxxxxxxxxx, Pledgor has agreed to assume the obligation of Xxxxxxxxxx to the
Pledgee evidenced by that certain Note from Xxxxxxxxxx to the Pledgee dated
February 9, 2000 (the "Note"); and
WHEREAS, as a condition precedent to the effectiveness of the
assumption and as an inducement to the Pledgee for permitting the assumption,
the Pledgor has agreed to execute and deliver this Pledge Agreement to secure
the Note for the benefit of the Pledgee.
1. Pledge and Grant of Security Interest. To secure the prompt
payment and performance in full when due, whether by lapse of time or otherwise,
of the Pledgor Obligations (as defined in Section 2 hereof), the Pledgor hereby
pledges and assigns to the Agent, for the benefit of the Pledgee, and grants to
the Agent, for the benefit of the Pledgee, a continuing security interest in any
and all right, title and interest of the Pledgor in and to the following,
whether now owned or existing or owned, acquired, or arising hereafter
(collectively, the "Pledged Collateral"):
(a) Pledged Shares. The 21,671 shares of the issued and
outstanding capital stock of Pierre Foods owned by the Pledgor as shown
on Exhibit A attached hereto, together with the certificates (or other
agreements or instruments), if any, representing such shares, and all
options and other rights, contractual or otherwise, with respect
thereto (collectively, together with the shares of capital stock
described in (i) and (ii) below, the "Pledged Shares"), including, but
not limited to, the following:
(i) all shares, securities or certificates
representing a dividend on any of the Pledged Shares, or
representing a distribution or return of capital upon or in
respect of the Pledged Shares, or resulting from a stock
split, revision, reclassification or other exchange therefor,
and any subscriptions, warrants, rights or options issued to
the holder of, or otherwise in respect of the Pledged Shares;
and
(ii) without affecting the obligations of the
Pledgor under any provision prohibiting such action hereunder,
in the event of any consolidation or merger in which Pierre
Foods is not the surviving corporation, all shares of each
class of the
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capital stock of the successor corporation formed by or
resulting from such consolidation or merger.
(b) Proceeds. All proceeds and products of the foregoing,
however and whenever acquired and in whatever form, including cash
distributions or sums received attributable to the Pledged Shares.
2. Security for Pledgor Obligations. The security interest
created hereby in the Pledged Collateral of the Pledgor constitutes continuing
collateral security for all of the following, whether now existing or hereafter
incurred (the "Pledgor Obligations"), in exchange for Pledgee's allowance of
Pledgor's assumption of the Note and execution of this Pledge Agreement and
other good and valuable consideration:
(a) the Note; and
(b) all expenses and charges, legal and otherwise,
reasonably incurred by the Agent and/or the Pledgee in collecting or
enforcing the Note or in realizing on or protecting any security
therefor, including without limitation the security afforded hereunder.
3. Delivery of the Pledged Collateral. The Pledgor hereby agrees
that:
(a) Delivery of Certificates. The Trustee under the
Pledge Agreement dated February 9, 2000 between Pledgee and Xxxxxxxxxx
shall deliver to the Agent (i) simultaneously with or prior to the
execution and delivery of this Pledge Agreement, all certificates
representing the Pledged Shares of the Pledgor and (ii) promptly upon
the receipt thereof by or on behalf of the Pledgor, all other
certificates and instruments constituting Pledged Collateral of the
Pledgor. All such certificates shall be delivered in suitable form for
transfer by delivery or shall be accompanied by duly executed
instruments of transfer or assignment in blank.
(b) Additional Securities. If the Pledgor shall receive
by virtue of its being or having been the owner of any Pledged
Collateral, any (i) stock certificate or other certificate evidencing
an ownership interest, including without limitation, any certificate
representing a dividend or distribution in connection with any increase
or reduction of capital, reclassification, merger, consolidation, sale
of assets, combination of shares, stock splits, spin-off or split-off,
promissory notes or other instrument; (ii) option or right whether as
an addition to, substitution for, or an exchange for, any Pledged
Collateral or otherwise; (iii) dividends payable in securities or other
certificate evidencing an ownership interest; or (iv) distributions of
securities or other certificate evidencing an ownership interest in
connection with a partial or total liquidation, dissolution or
reduction of capital, capital surplus or paid-in surplus, then the
Pledgor shall receive such security, certificate, instrument, option,
right or distribution in trust for the benefit of the Agent, shall
segregate it from the Pledgor's other property and shall deliver it
forthwith to the Agent in the exact form received together with any
necessary endorsement and/or appropriate stock power duly executed in
blank, to be held by the Agent as Pledged
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Collateral and as further collateral security for the Pledgor
Obligations.
(c) Financing Statements. The Pledgor shall execute and
deliver to the Agent such UCC or other applicable financing statements
as may be reasonably requested by the Agent in order to perfect and
protect the security interest created hereby in the Pledged Collateral
of the Pledgor.
4. Representations and Warranties. The Pledgor hereby represents and
warrants to the Agent, for the benefit of the Pledgee, that so long as any of
the Pledgor Obligations remain outstanding:
(a) Authorization of Pledged Shares. The Pledged Shares
are duly authorized and validly issued, are fully paid and
nonassessable, and are not subject to preemptive rights. All other
shares of capital stock constituting Pledged Collateral will be duly
authorized and validly issued, fully paid and nonassessable, and not
subject to preemptive rights.
(b) Title. The Pledgor has good and indefeasible title to
the Pledged Collateral of such Pledgor and will at all times be the
legal and beneficial owner of such Pledged Collateral free and clear of
any pledges, hypothecations, liens, security interests, charges,
options, restrictions or other encumbrances (collectively "Liens"),
except the security interest created by this Pledge Agreement (the
"Permitted Lien"). There exists no "adverse claim" within the meaning
of Section 8-302 of the Uniform Commercial Code as in effect in the
State of North Carolina (the "UCC") with respect to the Pledged Shares
of the Pledgor.
(c) Exercising of Rights. The exercise by the Agent of
its rights and remedies hereunder will not violate any law or
governmental regulation or any material contractual restriction binding
on or affecting the Pledgor or any of its property.
(d) Pledgor's Authority. No authorization, approval or
action by, and no notice or filing with any governmental authority or
with the issuer of any Pledged Shares is required either (i) for the
pledge made by the Pledgor or for the granting of the security interest
by the Pledgor pursuant to this Pledge Agreement or (ii) for the
exercise by the Agent or the Pledgee of their rights and remedies
hereunder (except as may be required by laws affecting the offering and
sale of securities),
(e) Security Interest/Priority. This Pledge Agreement
creates a valid security interest in favor of the Pledgee and the Agent
for the benefit of the Pledgee, in the Pledged Collateral. The taking
of possession by the Agent of the certificates representing the
certificated Pledged Shares and all other certificates and instruments
constituting the Pledged Collateral will perfect and establish the
first priority of the Pledgee's security interest in the certificated
Pledged Shares and, when properly perfected by filing or registration,
in all other Pledged Collateral represented by such Pledged Shares and
instruments securing the Pledgor Obligations. Pledged Shares are
represented by certificated shares. In the event any capital shares
constituting the Pledged Collateral are uncertificated, Pledgor agrees
to take all action, or permit the Agent to take such action,
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as necessary to certificate such capital shares or as may be necessary
to perfect an established first priority security interest therein.
5. Covenants. The Pledgor hereby covenants, that so long as any
of the Pledgor Obligations remain outstanding, the Pledgor shall:
(a) Books and Record . Xxxx its books and records to
reflect the security interest granted to the Agent, for the benefit of
the Pledgee, pursuant to this Pledge Agreement.
(b) Defense of Title. Warrant and defend title to and
ownership of the Pledged Collateral of the Pledgor at its own expense
against the claims and demands of all other parties claiming an
interest therein, keep the Pledged Collateral free from all Liens,
except for the Permitted Lien, and not sell, exchange, transfer,
assign, or otherwise dispose of the Pledged Collateral of such Pledgor
or any interest therein.
(c) Further Assurances. Promptly execute and deliver at
its expense all further instruments and documents and take all further
action that may be necessary and desirable or that the Agent may
reasonably request in order to (i) perfect and protect the security
interest created hereby in the Pledged Collateral of the Pledgor
(including without limitation any and all action necessary to satisfy
the Agent that the Agent has obtained a first priority perfected
security interest in any capital stock); (ii) enable the Agent or
Pledgee to exercise and enforce its rights and remedies hereunder in
respect of the Pledged Collateral of the Pledgor, and (iii) otherwise
effect the purposes of this Pledge Agreement, including without
limitation and if requested by the Agent, delivering to the Agent
irrevocable proxies in respect of the Pledged Collateral of the
Pledgor.
(d) Amendments. Not make or consent to any amendment or
other modification or waiver with respect to any of the Pledged
Collateral of the Pledgor or enter into any agreement or allow to exist
any restriction with respect to any of the Pledged Collateral of the
Pledgor.
(e) Compliance with Securities Laws. File all reports and
other information now or hereafter required to be filed by the Pledgor
with the United States Securities and Exchange Commission and any other
state, federal or foreign agency in connection with the ownership of
the Pledged Collateral of the Pledgor.
6. Advances by Pledgee. On failure of the Pledgor to perform any
of the covenants and agreements contained herein or in the Note, the Pledgee may
perform the same and/or declare the Note and Pledge Agreement in default, and in
so doing may expend such sums as the Pledgee may reasonably deem advisable in
the performance thereof and for the protection of the security hereof. All such
sums and amounts so expended by the Pledgee shall be repayable by the Pledgor
promptly upon timely notice thereof and demand therefor and shall constitute
additional Pledgor Obligations and shall bear interest from the date said
amounts are expended at the default rate specified in the Note. No such
performance of any covenant or agreement by the Pledgee on behalf of any
Pledgor, and no such advance or expenditure therefor, shall relieve the Pledgor
of any default under the term of this Pledge Agreement or the Note.
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7. Events of Default. The occurrence of any one or more of the
following shall constitute an "Event of Default" hereunder and under the Note:
(a) The failure to make any payment of principal or
interest on the Note after the same becomes due, unless such failure is cured
within ten (10) days from the due date; or
(b) The failure to perform any other obligations under
this Pledge Agreement or the Note, unless such failure is cured within fifteen
(15) days after notice thereof is given; or
(c) The commencement of any proceedings by or against
Xxxxxxxxxx or the Pledgor as debtor, under any applicable bankruptcy, insolvency
or similar laws for the relief of debtors, other than an involuntary proceeding
that is dismissed within 60 days after commencement, or any general assignment
by Xxxxxxxxxx or the Pledgor for the benefit of creditors, or any other action
taken by Xxxxxxxxxx or the Pledgor or their creditors resulting in the
marshalling of either of their assets and liabilities to pay creditors.
8. Remedies.
(a) General Remedies. Upon the occurrence of an Event of
Default and notice thereof from the Pledgee, the Agent shall deliver to
the Pledgee the Pledged Collateral and Pledgee shall, in addition to
the rights and remedies provided herein, in the Note or by law, have
the rights and remedies of a secured party under the UCC or any other
applicable law.
(b) Sale of Pledged Collateral. Upon the occurrence of an
Event of Default and during the continuation thereof, without limiting
the generality of this Section and without notice, the Pledgee may, in
his sole discretion, sell or otherwise dispose of or realize upon the
Pledged Collateral, or any part thereof, in one or more parcels, at
public or private sale, at any exchange or broker's board or elsewhere,
at such price or prices and on such other terms as the Pledgee may deem
commercially reasonable, for cash, credit or for future delivery or
otherwise in accordance with applicable law. To the extent permitted by
law, the Pledgee may in such event, bid for the purchase of such
securities or certificates. The Pledgor agrees that, to the extent
notice of sale shall be required by law and has not been waived by the
Pledgor, any requirement of reasonable notice shall be met if notice,
specifying the place of any public sale or the time after which any
private sale is to be made, is personally served on or mailed, postage
prepaid, to the Pledgor at least 10 days before the time of such sale.
The Pledgee shall not be obligated to make any sale of Pledged
Collateral of the Pledgor regardless of notice of sale having been
given. The Pledgee may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to
which it was so adjourned.
(c) Private Sale. Upon the occurrence of an Event of
Default and during the continuation thereof, the Pledgor recognizes
that the Pledgee may deem it impracticable to effect a public sale of
all or any part of the Pledged Shares or any of the securities or
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certificates constituting Pledged Collateral and that the Pledgee may,
therefore, determine to make one or more private sales of any such
securities or certificates to a restricted group of purchasers who will
be obligated to agree, among other things, to acquire such securities
or certificates for their own account, for investment and not with a
view to the distribution or resale thereof. The Pledgor acknowledges
that any such private sale may be at prices and on terms less favorable
to the seller than the prices and other terms which might have been
obtained at a public sale and, notwithstanding the foregoing, agrees
that such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Pledgee shall have no
obligation to delay sale of any such securities or certificates for the
period of time necessary to permit the issuer of such securities or
certificates to register such securities or certificates for public
sale under the Securities Act of 1933. The Pledgor further acknowledges
and agrees that any offer to sell such securities which has been (i)
publicly advertised on a bona fide basis in a newspaper or other
publication of general circulation in the financial community of New
York, New York (to the extent that such offer may be advertised without
prior registration under the Securities Act of 1933), or (ii) made
privately in the manner described above shall be deemed to involve a
"public sale" under the UCC, notwithstanding that such sale may not
constitute a "public offering" under the Securities Act of 1933, and
the Pledgee may, in such event, bid for the purchase of such securities
or certificates.
(d) Retention of Pledged Collateral. In addition to the
rights and remedies hereunder, upon the occurrence of an Event of
Default, the Pledgee, after providing the notices required by Section
9-505(2) of the UCC or otherwise complying with the requirements of
applicable law of the relevant jurisdiction, may retain all or any
portion of the Pledged Collateral in satisfaction of the Pledgor
Obligations. Unless and until the Pledgee shall have provided such
notices, however, the Pledgee shall not be deemed to have retained any
Pledged Collateral in satisfaction of any Pledgor Obligations for any
reason.
(e) Deficiency. In the event of a default under the Note
or this Pledge Agreement, or in the event that the proceeds of any
sale, collection or realization are insufficient to pay all amounts to
which the Pledgee is legally entitled, the Pledgor and Xxxxxxxxxx shall
be jointly and severally liable for the deficiency, together with
interest thereon at the default rate specified in the Note, together
with the costs of collection and the reasonable fees of any attorneys
employed by the Agent or Pledgee to collect such deficiency, to give
notice of default or to otherwise protect the rights of the Agent or
the Pledgee under the Note and this Pledge Agreement. Any surplus
remaining after the full payment and satisfaction of the Pledgor
Obligations shall be returned to the Pledgor or to whomsoever a court
of competent jurisdiction shall determine to be entitled thereto.
9. Rights of the Agent.
(a) Power of Attorney. In addition to other powers of
attorney contained herein, the Pledgor hereby designates and appoints
the Agent, on behalf of the Pledgee, irrevocably and with power of
substitution, with authority to take any or all of the following
actions:
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(i) to direct any parties liable for any payment
under any of the Pledged Collateral to make payment of any and
all monies due and to become due thereunder for the benefit of
the Pledgee directly to the Agent or as the Agent shall
direct;
(ii) to receive payment of and receipt for any
and all monies, claims, and other amounts due and to become
due for the benefit of the Pledgee at any time in respect of
or arising out of any Pledged Collateral;
(iii) to sign and endorse any drafts, assignments,
proxies, stock powers, verifications, notices and other
documents for the benefit of the Pledgee relating to the
Pledged Collateral;
(iv) execute and deliver all assignments,
conveyances, statements, financing statements, renewal
financing statements, pledge agreements, affidavits, notices
and other agreements, instruments and documents that the Agent
may determine necessary in order to perfect and maintain the
security interests and liens granted for the benefit of the
Pledgee in this Pledge Agreement or in the Note and in order
to fully consummate all of the transactions contemplated
therein;
(v) to do and perform all such other acts and
things as the Agent may reasonably deem to be necessary,
proper or convenient in connection with the Pledged Collateral
of such Pledgor held for the benefit of the Pledgee.
This power of attorney is a power coupled with an interest and shall be
irrevocable for so long as any of the Pledgor Obligations remain
outstanding. The Agent shall be under no duty to exercise or withhold
the exercise of any of the rights, powers, privileges and options
expressly or implicitly granted to the Agent in this Pledge Agreement,
and shall not be liable for any failure to do so or any delay in doing
so. The Agent shall not be liable for any act or omission or for any
error of judgment or any mistake of fact or law in its individual
capacity or its capacity as attorney-in-fact except acts or omissions
resulting from its gross negligence or willful misconduct. This power
of attorney is conferred on the Agent solely to protect, preserve and
realize upon the Pledgee's or its security interest in the Pledged
Collateral held for the benefit of the Pledgee.
(b) Limited Responsibility of Agent. Prior to an Event of
Default, the Agent shall not effect or permit any sales, exchanges or
other dispositions of the Pledged Collateral without the prior written
consent of the Pledgee and Pledgor. Notwithstanding anything hereunto
the contrary, other than safeguarding and preserving the Pledged
Collateral, the Agent will have no responsibility to take any action
under this Agreement unless its reasonable fees for commencing and
completing such action have been paid in advance by either the Pledgor
or Pledgee. The Agent shall have no duty to investigate or make any
determination as to whether an Event of Default exists under the Note
and shall comply with the instructions accompanying a notice of default
from the Pledgee without regard to whether the Agent believes such a
default exists. Pledgor hereby agrees to indemnify and
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hold harmless Agent against any and all claims, causes of action,
liabilities, and damages, including without limitation, in and all
court costs and reasonable attorneys fees, in any way related to or
arising out of or in connection with this Pledge Agreement or any
action taken or not taken pursuant hereto, except to the extent cause
by Agent's gross negligence or willful misconduct. Pledgee hereby
agrees to indemnify and hold harmless the Agent from any and all
claims, causes of action, liabilities, and damages, including, without
limitation, any and all court costs and reasonable attorneys fees,
directly related to or directly arising out of or in connection with
any action taken or not taken pursuant hereto at the request of or
pursuant to the instructions of the Pledgee, except to the extent
caused by Agent's gross negligence, willful misconduct or breach of
fiduciary duties.
(c) Resignation. Agent reserves the right to resign as
the Agent under this Agreement, such resignation to be effective upon
ten (10) days written notice thereof given to the Pledgor and Pledgee.
Upon notification of the appointment of a successor Agent by the
Pledgee within the aforesaid ten (10) day period, the Agent shall
deliver this Pledge Agreement and all Pledged Collateral properly
endorsed to effectuate the transfer to said successor Agent, and shall
thereafter have no further responsibility or obligations hereunder. In
the event the substitute Agent is not promptly appointed, the Agent may
unless the Pledgor and Pledgee mutually agree to some other
arrangement, at the Agent's election, either: (i) deliver this Pledge
Agreement to the Pledgee along with all Pledged Collateral, or (ii)
tender into the custody of any court of competent jurisdiction all
Pledged Collateral in its hands under the terms of this Pledge
Agreement, and in either event shall thereafter be discharged from any
further obligations hereunder.
(d) The Agent's Duty of Care. Other than the exercise of
reasonable care to assure the safe custody of the Pledged Collateral
while being held by the Agent hereunder, the Agent shall have no other
duty or liability. The Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged
Collateral in its possession if such Pledged Collateral is accorded
treatment substantially equal to that which the Agent accords its own
property, which shall be no less than the treatment employed by a
reasonable and prudent agent in the industry.
(e) Voting Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default shall have
occurred and be continuing, to the extent permitted by law,
the Pledgor may exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral or any
part thereof for any purpose not inconsistent with the terms
of this Pledge Agreement or the Note; and
(ii) Upon the occurrence and during the
continuance of an Event of Default and notice thereof by the
Pledgee, all rights of the Pledgor to exercise the voting and
other consensual rights which it would otherwise be entitled
to exercise pursuant to paragraph (i) of this Section shall
cease and all such rights shall thereupon become vested in the
Pledgee which shall then have the sole right to exercise such
voting and other consensual rights.
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(f) Dividend Rights in Respect of the Pledged Collateral.
All dividend payments or other sums which are
received by the Pledgor or Agent shall be received in trust for the benefit of
the Pledgee, and, if received by the Pledgor, shall be segregated from other
property or funds of the Pledgor and shall be forthwith paid over and endorsed
to the Agent or Pledgee, as the case may be, as Pledged Collateral in the exact
form received, to be held by the Pledgee or Agent as Pledged Collateral and as
further collateral security for the Pledgor Obligations, or in the discretion
and direction of the Pledgee to be applied to the payment of any amount due
under the Pledgor Obligations.
10. Application of Proceeds . Upon the occurrence of and during
the continuance of an Event of Default, any payments in respect of the Pledgor
Obligations and any proceeds of any Pledged Collateral, when received by the
Agent or Pledgee, will be applied as follows: first, to all reasonable costs and
expenses of the Agent (including without limitation reasonable attorneys' fees
and expenses) incurred in connection with the implementation and/or enforcement
of this Pledge Agreement and/or the Note; second, to all costs and expenses of
the Pledgee (including without limitation reasonable attorneys' fees and
expenses) incurred in connection with the implementation and/or enforcement of
this Pledge Agreement and/or the Note; third, to the principal amount of the
Pledgor Obligations; fourth, to such of the Pledgor Obligations consisting of
accrued but unpaid, interest and fees; fifth, to all other amounts payable with
respect to the Pledgor Obligations; and sixth, to the payment of the surplus, if
any, to whoever may be lawfully entitled to receive such surplus. The Pledgor
and Xxxxxxxxxx shall remain liable to the Agent and the Pledgee for any
deficiency.
11. Continuing Agreement.
(a) This Pledge Agreement shall be a continuing agreement
in every respect and shall remain in full force and effect so long the
Note remains outstanding. Upon full payment of the Note, this Pledge
Agreement shall be automatically terminated and the Pledgee shall, upon
the request of the Pledgor, forthwith release all of its liens and
security interests hereunder and shall execute and deliver all UCC
termination statements and/or other documents reasonably requested by
the Pledgor evidencing such termination. Upon full satisfaction of the
secured Note and notice of such satisfaction from the Pledgee, Agent
shall promptly assign and deliver to the Pledgor, or to such person or
persons as the Pledgor shall designate, all of the Pledged Collateral
still held hereunder, accompanied by appropriate instruments of
reassignment. Any such reassignment shall be without recourse to or
warranty by the Pledgee. Notwithstanding the foregoing, all releases
and indemnities provided hereunder shall survive termination of this
Pledge Agreement.
(b) This Pledge Agreement shall continue to be effective
or be automatically reinstated, as the case may be, if at any time
payment, in whole or in part, of any of the Pledgor Obligations is
rescinded or must otherwise be restored or returned by the Agent or the
Pledgee as a preference, fraudulent conveyance or otherwise under any
bankruptcy, insolvency or similar law, all as though such payment had
not been made; provided that in the event payment of all or any part of
the Pledgor Obligations is rescinded or must be
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restored or returned, all reasonable costs and expenses (including
without limitation any reasonable legal fees and disbursements)
incurred by the Agent or the Pledgee in defending and enforcing such
reinstatement shall be deemed to be included as a part of the Pledgor
Obligations.
12. Amendments; Waivers; Modifications. This Pledge Agreement and
the provisions hereof may not be amended, waived, modified, changed, discharged
or terminated except with the written consent of all parties.
13. Successors in Interest. This Pledge Agreement shall create a
continuing security interest in the Pledged Collateral and shall be binding upon
each of the Pledgor and Xxxxxxxxxx, their heirs, successors and assigns and
shall inure, together with the rights and remedies of the Agent and the Pledgee
hereunder, to the benefit of the Agent and the Pledgee and their successors and
permitted assigns; provided, however, neither the Pledgor or Xxxxxxxxxx may
assign its rights or delegate its duties hereunder without the prior written
consent of the Agent. To the fullest extent permitted by law, the Pledgor and
Xxxxxxxxxx hereby release the Agent and the Pledgee, and their heirs, successors
and permitted assigns, from any liability for any act or omission relating to
this Pledge Agreement or the Pledged Collateral, except for any liability
arising from the gross negligence or willful misconduct of the Agent, or the
Pledgee, or their officers, employees or agents.
14. Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been given or made when (a) delivered by hand (including, but not limited
to, by means of overnight courier service), (b) sent by facsimile (with receipt
confirmed) or (c) except as otherwise provided herein, deposited in the mail,
registered or certified mail, postage prepaid, the following addresses:
If to Pledgee:
C. Xxxxxxx Xxxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxx, Xxxxx Xxxxxxxx 00000
If to Pledgor or Xxxxxxxxxx:
PF Management, Inc.
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
Street Address: 000 Xxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxx Xxxxxxxx 00000
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If to Agent:
T. Xxxxxxx Xxxxxx
Battle, Xxxxxxx, Xxxxx & Xxxxx, P.A.
0000 Xxxxxxxxxxxx Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxx Xxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000) 000-0000
or to such other address as the party to receive any such communication or
notice may have designated by written notice to the other party.
All periods of notice shall be measured from the date of delivery
thereof, if delivered in hand, from the date of mailing thereof, if mailed, and
from the date transmitted if delivered by facsimile transmission.
15. Counterparts. This Pledge Agreement may be executed in any
number of counterparts, each of which where so executed and delivered shall be
an original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Pledge Agreement to produce or
account for more than one such counterpart.
16. Heading. The headings of the sections and subsections hereof
are provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Pledge Agreement.
17. Governing Law. This Pledge Agreement and the rights and
obligations of the parties hereunder shall be governed by, and construed and
interpreted in accordance with, the law of the state of North Carolina.
18. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THE PLEDGOR, XXXXXXXXXX, PLEDGEE AND AGENT HEREBY WAIVE ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS PLEDGE AGREEMENT,
THE NOTE OR ANY OTHER AGREEMENTS OR TRANSACTIONS RELATED HERETO OR THERETO.
19. Severability. If any provision of any of the Pledge Agreement
is determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
20. Entirety. This Pledge Agreement, the Note and the Assumption
Agreement represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any.
21. Survival. All representations and warranties of the Pledgor
hereunder shall survive
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the execution and delivery of this Pledge Agreement.
22. Joint and Several Obligations of Pledgors. The Pledgor and
Xxxxxxxxxx jointly and severally hereby irrevocably and unconditionally accepts,
not merely as a surety but also as a co-debtor, joint and several liability with
respect to the payment and performance of all of the Pledgor Obligations arising
under this Pledge Agreement and the Note, it being the intention of the parties
hereto that all the Pledgor Obligations shall be the joint and several
obligations of the Pledgor and Xxxxxxxxxx without preferences or distinction
among them.
23. Irrevocable Authorization and Instruction to Issuers. Each
Pledgor and Xxxxxxxxxx hereby authorizes and instructs Pierre Foods, its
successors and assigns, to comply with any instruction received by it from the
Agent or Pledgee in writing that (a) states that an Event of Default has
occurred and is continuing and (b) is otherwise in accordance with the terms of
this Pledge Agreement, without any other or further instructions from the
Pledgor or Xxxxxxxxxx, and the Pledgor and Xxxxxxxxxx agree that Pierre Foods,
its successor and assigns, shall be fully protected in so complying.
24. Note Modification. All reference in the Note to the Pledge
Agreement shall mean this Pledge Agreement, and the Note is modified
accordingly.
[remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Pledge
Agreement to be duly executed and delivered as of the date first above written.
PF Management, Inc.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxx
President
/s/ Xxxxx X. Xxxxxxxxxx, Xx.
-----------------------------------(SEAL)
Xxxxx X. Xxxxxxxxxx, Xx.
/s/ C. Xxxxxxx Xxxxxx
-----------------------------------(SEAL)
C. Xxxxxxx Xxxxxx
/s/ T. Xxxxxxx Xxxxxx
------------------------------------------
T. Xxxxxxx Xxxxxx, Agent
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EXHIBIT A
PLEDGED SHARES
--------------
Certificate No. No./Shares
--------------- ----------
FF 0539 21,671
