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EXHIBIT 9.2
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT is made and entered into this 17th day of April,
2001, by PF Management, Inc., a North Carolina corporation (herein called the
"Pledgor"), to Carolina First Bank, a state banking institution (herein called
the "Pledgee"), with an address at P.0. Xxx 0000, Xxxxxxxxxx, Xxxxx Xxxxxxxx
00000 pursuant to that certain Promissory Note (the "Note") and the other loan
documents related thereto (collectively with the Agreement, the "Loan
Documents"), evidencing the Loan (collectively the "Loan"), extended by the
Pledgee to Pledgor. All terms not otherwise defined herein are used with the
same meaning as set forth in the Note and/or the other Loan Documents.
WITNESSETH:
WHEREAS, the Pledgor wishes to secure the Note with this Pledge
Agreement, among other things; and
NOW, THEREFORE, for and in consideration of the sum of Three Dollars
($3.00) and the mutual promises hereinafter contained and other valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the Pledgor does hereby grant unto the Pledgee the security interest hereinafter
described in accordance with the terms and conditions hereinafter set forth:
1. Grant of Security Interest. Pledgor, in addition to any
collateral previously mortgaged, assigned or pledged, hereby pledges and grants
to Pledgee a security interest in the property described in paragraph 2 below
(collectively and severally, the "Collateral") to secure payment and performance
of all obligations of Pledgor to Pledgee arising out of or related to the Loan
(collectively and severally, the "Obligations").
2. Collateral. The Collateral shall consist of all of the
Pledgor's right, title, and interest in, under and to the shares of stock of
Pierre Foods, Inc., owned by Pledgor, as listed on Exhibit A, attached hereto
and incorporated herein by reference. The Collateral shall also include all
proceeds, products, stock splits and replacements of the foregoing.
For purposes of this Pledge Agreement, the term "proceeds" includes
whatever is receivable or received when Collateral, a portion thereof, or
proceeds is sold, collected, exchanged or otherwise disposed of, whether such
disposition is voluntary or involuntary.
3. Obligations. The Obligations of Pledgor secured by this Pledge
Agreement shall include any and all debts, obligations and liabilities of
Pledgor to Pledgee arising out of, connected with or related to the Loan.
4. Representations and Warranties. Pledgor hereby represents and
warrants that:
(a) Pledgor is the record and beneficial owner of and has good and
marketable title to the Collateral and that no other person has any
right, title, claim or interest (by way of
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security interest or other lien or charge or otherwise) in, against or
to the Collateral;
(b) The securities which comprises a portion of the Collateral are
validly issued, fully paid and non-assessable; and
(c) Pledgor has granted no other security interest in the
Collateral.
5. Covenants of Pledgor. Pledgor hereby agrees (a) to do all acts
that may be necessary to maintain, preserve and protect the Collateral; (b) to
procure, execute and deliver from time to time any endorsements, assignments,
and other writings deemed necessary or appropriate by Pledgee to perfect,
maintain and protect its security interest hereunder and priority thereof and to
deliver promptly to Pledgee all originals of Collateral or proceeds consisting
of instruments and chattel paper; (c) to appear in and defend any action or
proceeding which may affect its title to or Pledgee's interest in the
Collateral; (d) to keep separate, accurate and complete records of the
Collateral and to provide Pledgee with such records and such other reports and
information relating to the Collateral as Pledgee may request from time to time;
and (e) to deliver the original of any shares, certificates or other evidence of
stock ownership to Pledgee.
6. Authorized Action by Pledgee. Pledgee shall not be required to
make any presentment, demand or protest, or give any notice and Deed not take
any action to preserve any rights against any prior party or any other person in
connection with the Loan or with respect to the Collateral.
7. Administration of the Collateral. In addition to any
provisions of this Pledge Agreement which govern the administration of the
Collateral generally, the following provisions shall govern the administration
of any securities which are the subject of this Pledge Agreement:
(a) In the event that at any time or from time to time after the
date hereof, Pledgor, as record and beneficial owner of the securities which
comprise a portion of the Collateral, shall receive or shall become entitled to
receive, any dividend or any other distribution whether in securities or
property by way of stock-split, spin-off, split-up or reclassification,
combination of shares or the like, or in case of a reorganization, consolidation
or merger, and Pledgor, as record and beneficial owner of such, shall thereby be
entitled to receive securities or property in respect of such securities, then
and in each such case, Pledgor shall be entitled to receive all such securities
or property as part of the Collateral subject to this Pledge Agreement and
Pledgor shall furnish to Pledgee evidence satisfactory to Pledgee that said
property will be Collateral secured by this Pledge Agreement.
(b) Upon the occurrence of an Event of Default under the Loan
Documents, including this Agreement, and so long as such Event of Default shall
be continuing, Pledgee is authorized to sell Pledgor's interest in the
Collateral, or any portion thereof, and if it deems it advisable to do so, to
restrict the prospective bidders or purchasers to persons or entities who (i)
will represent and agree that they are purchasing for their own account, for
investment, and not with a view to the distribution or sale of any of such
securities; and (ii) satisfy the offeree and purchaser requirements for a valid
private placement transaction under Section 4(2) of the Securities Act of 1933,
as amended (the "Act"), and under Securities and Exchange Commission Regulation
D, or
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under any similar or successor statute, rule or regulation. Pledgor agrees that
disposition of such securities pursuant to any private sale made as provided
above may be at prices and on other terms less favorable than if such securities
were sold at public sale, and that Pledgee has no obligation to delay the
transfer of its interest in the sale of the Collateral, or any portion thereof,
for the period of time necessary to permit the registration of such securities
for public sale under the Act. Pledgor agrees that a private sale or sales made
under the foregoing circumstances shall be deemed to have been made in a
commercially reasonable manner.
(c) if any consent, approval or authorization of any state,
municipal or other governmental department, agency or authority should be
necessary to effectuate any sale or other disposition of the Collateral, or any
part thereof, Pledgor will execute such applications and other instruments as
may be required in connection with securing any such consent, approval or
authorization, and will otherwise use its best efforts to secure the same.
Nothing contained in this Paragraph 7 shall be deemed to limit the other
obligations of Pledgor and/or the Pledgor contained in the Loan Documents or
this Pledge Agreement and the rights of Pledgee hereunder or thereunder.
8. Default and Remedies. Pledgor shall be deemed in default under
this Pledge Agreement in the event Pledgor fails to pay, when due, any sums due
or hereafter owed to Pledgee, under the terms of the above described Note or an
Event of Default shall have occurred under any of the Loan Documents
(collectively herein referred to as an "Event of Default"). Upon the occurrence
of any such Event of Default, Pledgee may, at its option, and without notice to
or demand on Pledgor and in addition to all rights and remedies available to
Pledgee as provided in this Pledge Agreement and the Loan Documents, do any one
or more of the following: (a) enforce Pledgee's security interest in any manner
permitted by law, or provided for in this Pledge Agreement; (b) sell, or
otherwise dispose of any or all of Collateral at one or more public or private
sales, whether or not such Collateral is present at the place of sale, for cash
or credit or future delivery; (c) recover from Pledgor all costs and expenses,
including without limitation, reasonable attorneys' fees, incurred or paid by
Pledgee in exercising any right, power or remedy provided by this Pledge
Agreement or by law; and (d) recover from Pledgor any deficiency remaining
following such disposition. Pledgor shall be given five (5) days prior notice of
the time and place of any public sale of any Collateral or of the time after
which any private or other intended disposition of any Collateral is to be made.
Upon any sale or other disposition pursuant to this Pledge Agreement, Pledgee
shall have the right to deliver, assign and transfer to the purchaser or
purchasers thereof the Collateral or portion thereof so sold or disposed of to
the extent permitted by law.
9. Cumulative Rights. The rights, powers and remedies of Pledgee
under this Pledge Agreement shall be in addition to all rights, powers and
remedies given to Pledgee by virtue of any statute or rule of law, or any other
agreement, all of which rights, powers and remedies shall be cumulative and may
be exercised successively or concurrently without impairing Pledgee's security
interest in the Collateral.
10. Waiver. Any forbearance, failure or delay by Pledgee in
exercising any right, power or remedy shall not preclude the further exercise
thereof, and every right, power or
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remedy of Pledgee shall continue in full force and effect until such right,
power or remedy is specifically waived in a writing executed by Pledgee. Pledgor
waives any right to require Pledgee to proceed against any person or to exhaust
any Collateral or any portion thereof or to pursue any remedy in Pledgee's
power.
11. Set-Off. Pledgor agrees that Pledgee may exercise its rights
of set-off with respect to the Obligations in the same manner as if such
Obligations were unsecured.
12. Binding Upon Successors. All rights of Pledgee under this
Pledge Agreement shall inure to the benefit of its successors and assigns, and
all obligations of Pledgor shall bind its heirs, executors, administrators,
successors and assigns.
13. Entire Agreement; Severability. This Pledge Agreement contains
the entire security agreement between Pledgee and Pledgor relating to the
Collateral. If any of the provisions of this Pledge Agreement shall be held
invalid or unenforceable, this Pledge Agreement shall be construed as if not
containing those provisions and the rights and obligations of the parties hereto
shall be construed and enforced accordingly.
14. Choice of Law. This Pledge Agreement shall be construed in
accordance with and governed by the laws of the State of South Carolina and,
where applicable and except as otherwise defined herein, terms used herein shall
have the meanings given them in the South Carolina Uniform Commercial Code.
15. Notice. All demands, notices and other communications provided
for hereunder shall be in writing and addressed to the respective party at the
address of such party specified below, or to each party at such other address as
shall be designated by such party in a written notice to each other party. All
such demands, notices and other communications shall be effective at the times
provided in the Note for notices thereunder.
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EXECUTED this 17th day of April, 2001.
Witness: PLEDGOR:
/s/ Xxxxx X. Xxxxx
------------------------------- PF Management, Inc. (SEAL)
Secretary By: /s/ Xxxxx X. Xxxxx
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Its: President
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Notice Address of Pledgor:
X.X. Xxx 0000
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Xxxxxxx, XX 00000
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Witness: PLEDGEE:
------------------------------- Carolina First Bank (SEAL)
By:
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Its:
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Notice Address of Pledgee:
Carolina First Bank
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. XxXxxxxxxx
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EXHIBIT "A"
478,454 shares of Pierre Foods, Inc., represented by Stock Certificate______.
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