Attached files
| file | filename |
|---|---|
| 8-K - PALM HARBOR HOMES INC /FL/ | v170176_8k.htm |
| EX-99.1 - PALM HARBOR HOMES INC /FL/ | v170176_ex99-1.htm |
PLEDGE
AGREEMENT
This
PLEDGE AGREEMENT, dated as of December 29, 2009 (together with all amendments,
if any, from time to time hereto, this “Agreement”) between
PALM HARBOR HOMES, INC., a Florida corporation (the “Pledgor”) and TEXTRON
FINANCIAL CORPORATION (“Secured Party”).
WITNESSETH:
WHEREAS,
the Secured Party, Pledgor and the other Borrowers party thereto from time to
time are parties to that certain Amended and Restated Agreement for Wholesale
Financing (Finished Goods - Shared Credit Facility), dated May 25, 2004 (as
amended, supplemented, revised, restated or otherwise modified from time to
time, the “Credit
Agreement”);
WHEREAS,
Pledgor is the record and beneficial owner of the shares of Stock listed in
Schedule I
hereto;
WHEREAS,
pursuant to the requirements of that certain Seventh Amendment to Amended and
Restated Agreement for Wholesale Financing, dated as of the date hereof, by and
among the Borrowers and the Secured Party (the “Seventh Amendment”),
Pledgor has agreed to pledge the Pledged Collateral to Secured Party in
accordance herewith;
NOW,
THEREFORE, in consideration of the premises and the covenants hereinafter
contained and other good and valuable consideration, the receipt whereof is
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Unless
otherwise defined herein, terms defined in the Credit Agreement are used herein
as therein defined, and the following shall have (unless otherwise provided
elsewhere in this Agreement) the following respective meanings (such meanings
being equally applicable to both the singular and plural form of the terms
defined):
“Bankruptcy Code”
means title 11, United States Code, as amended from time to time, and any
successor statute thereto.
“Collateral” means all
of the Pledgor’s interest in the capital stock of Standard Casualty Company and
proceeds thereof now owned or hereafter acquired by any Borrower in or upon
which a Lien is granted or purported to be granted pursuant to the Credit
Agreement or this Agreement.
“Governmental
Authority” means any nation, sovereign or government, any state or other
political subdivision thereof, any agency, authority or instrumentality thereof
and any entity or authority exercising executive, legislative, taxing, judicial,
regulatory or administrative functions of or pertaining to government, including
any central bank, stock exchange, regulatory body, arbitrator, public sector
entity, supra-national entity (including the European Union and the European
Central Bank) and any self-regulatory organization (including the National
Association of Insurance Commissioners).
“Indebtedness” of any
Person means, without duplication, any of the following, whether or not
matured: (a) all indebtedness for borrowed money, (b) all obligations
evidenced by notes, bonds, debentures or similar instruments, (c) all
reimbursement and all obligations with respect to (i) letters of credit, bank
guarantees or bankers’ acceptances or (ii) surety, customs, reclamation or
performance bonds (in each case not related to judgments or litigation) other
than those entered into in the ordinary course of business, (d) all obligations
to pay the deferred purchase price of property or services, other than trade
payables incurred in the ordinary course of business, (e) all obligations
created or arising under any conditional sale or other title retention
agreement, regardless of whether the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such property, (f) all capitalized lease obligations, (g) all obligations,
whether or not contingent, to purchase, redeem, retire, defease or otherwise
acquire for value any of its own Stock or Stock equivalents (or any Stock or
Stock equivalent of a direct or indirect parent entity thereof), valued at, in
the case of redeemable preferred Stock, the greater of the voluntary liquidation
preference and the involuntary liquidation preference of such Stock plus accrued
and unpaid dividends, (h) all payments that would be required to be made in
respect of any hedging agreement in the event of a termination (including an
early termination) on the date of determination and (i) all guaranty obligations
for obligations of any other Person constituting Indebtedness of such other
Person; provided, however, that the items in each of clauses (a) through (i)
above shall constitute “Indebtedness” of such Person solely to the extent,
directly or indirectly, (x) such Person is liable for any part of any such item,
(y) any such item is secured by a Lien on such Person’s property or (z) any
other Person has a right, contingent or otherwise, to cause such Person to
become liable for any part of any such item or to grant such a
Lien.
“Lien” means any
mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit
arrangement, encumbrance, easement, lien (statutory or other), security interest
or other security arrangement and any other preference, priority or preferential
arrangement of any kind or nature whatsoever, including any conditional sale
contract or other title retention agreement, the interest of a lessor under a
capital lease and any synthetic or other financing lease having substantially
the same economic effect as any of the foregoing, but not including the interest
of a lessor under a lease which is not a capital lease.
“Obligations” means,
with respect to any Borrower, all amounts, obligations, liabilities, covenants
and duties of every type and description owing by such Borrower to the Secured
Party arising out of, under, or in connection with, the Credit Agreement,
whether direct or indirect (regardless of whether acquired by assignment),
absolute or contingent, due or to become due, whether liquidated or not, now
existing or hereafter arising and however acquired, and whether or not evidenced
by any instrument or for the payment of money, including, without duplication,
all interest, whether or not accruing after the filing of any petition in
bankruptcy or after the commencement of any insolvency, reorganization or
similar proceeding, and whether or not a claim for post-filing or post-petition
interest is allowed in any such proceeding, and all other fees, expenses
(including reasonable fees, charges and disbursement of counsel), interest,
commissions, charges, costs, disbursements, indemnities and reimbursement of
amounts paid and other sums chargeable to such Borrower under the Credit
Agreement.
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“Person” means any
individual, partnership, corporation (including a business trust and a public
benefit corporation), joint stock company, estate, association, firm,
enterprise, trust, limited liability company, unincorporated association, joint
venture and any other entity or Governmental Authority.
“Pledged Collateral”
has the meaning assigned to such term in Section 2
hereof.
“Pledged Entity” means
Standard Casualty Company.
“Pledged Shares” means
those shares listed on Schedule I
hereto.
“Secured Obligations”
has the meaning assigned to such term in Section 3
hereof.
“Stock” means all
shares of capital stock (whether denominated as common stock or preferred
stock), equity interests, beneficial, partnership or membership interests, joint
venture interests, participations or other ownership or profit interests in or
equivalents (regardless of how designated) of or in a Person (other than an
individual), whether voting or non-voting.
2. Pledge. Pledgor
hereby pledges to Secured Party, and grants to Secured Party a first priority
security interest in all of the following (collectively, the “Pledged
Collateral”):
(a) the
Pledged Shares and the certificates representing the Pledged Shares, and all
dividends, distributions, cash, instruments and other property or proceeds from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Pledged Shares; and
(b) such
portion, as determined by Secured Party as provided in Section 6(d) below,
of any additional shares of stock of the Pledged Entity from time to time
acquired by Pledgor in any manner (which shares shall be deemed to be part of
the Pledged Shares), and the certificates representing such additional shares,
and all dividends, distributions, cash, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such Stock; and
3. Security for
Obligations. This Agreement secures, and the Pledged
Collateral is security for, the prompt payment in full when due, whether at
stated maturity, by acceleration or otherwise, and performance of all
Obligations of any kind under or in connection with the Credit Agreement and all
obligations of Pledgor now or hereafter existing under this Agreement including,
without limitation, all fees, costs and expenses whether in connection with
collection actions hereunder or otherwise (collectively, the “Secured
Obligations”).
4. Delivery of Pledged
Collateral. All certificates and instruments evidencing the
Pledged Collateral shall be delivered to and held by or on behalf of Secured
Party pursuant hereto. All Pledged Shares shall be accompanied by
duly executed instruments of transfer or assignment in blank, all in form and
substance reasonably satisfactory to Secured Party.
5. Representations and
Warranties. Pledgor represents and warrants to Secured Party
that:
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(a) Pledgor
is, and at the time of delivery of the Pledged Shares to Secured Party will be,
the sole holder of record and the sole beneficial owner of such Pledged
Collateral pledged by Pledgor free and clear of any Lien thereon or affecting
the title thereto, except for any Lien created by this
Agreement; Pledgor is and at the time of delivery of the Pledged
Indebtedness to Secured Party will be, the sole owner of such Pledged Collateral
free and clear of any Lien (other than any Lien held by Secured Party) thereon
or affecting title thereto, except for any Lien created by this
Agreement;
(b) All
of the Pledged Shares have been duly authorized, validly issued and are fully
paid and non-assessable;
(c) Pledgor
has the right and requisite authority to pledge, assign, transfer, deliver,
deposit and set over the Pledged Collateral pledged by Pledgor to Secured
Party as provided herein;
(d) None
of the Pledged Shares has been issued or transferred in violation of the
securities registration, securities disclosure or similar laws of any
jurisdiction to which such issuance or transfer may be subject;
(e) All
of the Pledged Shares are presently owned by Pledgor, and are presently
represented by the certificates listed on Schedule I
hereto. As of the date hereof, there are no existing options,
warrants, calls or commitments of any character whatsoever relating to the
Pledged Shares;
(f) No
consent, approval, authorization or other order or other action by, and no
notice to or filing with, any Governmental Authority or any other Person is
required (i) for the pledge by Pledgor of the Pledged Collateral pursuant to
this Agreement or for the execution, delivery or performance of this Agreement
by Pledgor, or (ii) for the exercise by Secured Party of the voting or other
rights provided for in this Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Agreement, except as may be required in connection
with such disposition by laws affecting the offering and sale of securities
generally or the change of control of insurance companies;
(g) The
pledge, assignment and delivery of the Pledged Collateral pursuant to this
Agreement will create a valid first priority Lien on and a first priority
perfected security interest in favor of the Secured Party in the Pledged
Collateral and the proceeds thereof, securing the payment of the Secured
Obligations, subject to no other Lien;
(h) This
Agreement has been duly authorized, executed and delivered by Pledgor and
constitutes a legal, valid and binding obligation of Pledgor enforceable against
Pledgor in accordance with its terms except as such enforceability may be
limited by applicable bankruptcy, moratorium, reorganization and other similar
laws affecting the enforcement of creditors’ rights generally; and
(i) The
Pledged Shares constitute 100% of the issued and outstanding shares of Stock of
the Pledged Entity.
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The
representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.
6. Covenants. Pledgor
covenants and agrees that until the Termination Date:
(a) Without
the prior written consent of Secured Party, Pledgor will not sell, assign,
transfer, pledge, or otherwise encumber any of its rights in or to the Pledged
Collateral, or any unpaid dividends, interest or other distributions or payments
with respect to the Pledged Collateral or grant a Lien in the Pledged
Collateral, unless otherwise expressly permitted by the Credit
Agreement;
(b) Pledgor
will promptly execute, acknowledge and deliver all such instruments and take all
such actions as Secured Party from time to time may reasonably request in order
to ensure to Secured Party the benefits of the Liens in and to the Pledged
Collateral intended to be created by this Agreement, including the filing of any
necessary Uniform Commercial Code financing statements, which may be filed by
Secured Party with or (to the extent permitted by law) without the signature of
Pledgor, and will cooperate with Secured Party in obtaining all necessary
approvals and making all necessary filings under federal, state, local or
foreign law in connection with such Liens or any sale or transfer of the Pledged
Collateral provided Pledgor shall not be required to effect or cause the Pledged
Entity to effect a public registration of any of the Pledged
Collateral;
(c) Except
in connection with any bankruptcy proceeding, Pledgor has and will defend the
title to the Pledged Collateral and the Liens of Secured Party in the Pledged
Collateral against the claim of any Person and will maintain and preserve such
Liens; and
(d) Pledgor
will, upon obtaining ownership of any additional Stock of the Pledged Entity
promptly (and in any event within three (3) Business Days) deliver to Secured
Party a Pledge Amendment, duly executed by Pledgor, in substantially the form of
Schedule II
hereto (a “Pledge
Amendment”) in respect of any such additional Stock, pursuant to which
Pledgor shall pledge to Secured Party all of such additional
Stock. Pledgor hereby authorizes Secured Party to attach each Pledge
Amendment to this Agreement and agrees that all Pledged Shares listed on any
Pledge Amendment delivered to Secured Party shall for all purposes hereunder be
considered Pledged Collateral.
7. Pledgor’s
Rights. As long as no Event of Default shall have occurred and
be continuing and until written notice shall be given to Pledgor in accordance
with Section
8(a) hereof:
(a) Pledgor
shall have the right, from time to time, to vote and give consents with respect
to the Pledged Collateral, or any part thereof for all purposes not inconsistent
with the provisions of this Agreement or the Credit Agreement; provided, however, that no vote
shall be cast, and no consent shall be given or action taken, which would have
the effect of impairing the position or interest of Secured Party in respect of
the Pledged Collateral or which would authorize, effect or consent to (unless
and to the extent expressly permitted by the Credit Agreement):
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(i) the
dissolution or liquidation, in whole or in part, of a Pledged
Entity;
(ii) the
consolidation or merger of a Pledged Entity with any other Person;
(iii) the
sale, disposition or encumbrance of all or substantially all of the assets of a
Pledged Entity, except for Liens in favor of Secured Party;
(iv) any
change in the authorized number of shares, the stated capital or the authorized
share capital of a Pledged Entity or the issuance of any additional shares of
its Stock; or
(v) the
alteration of the voting rights with respect to the Stock of a Pledged Entity;
and
(b) (i) Pledgor
shall be entitled, from time to time, to collect and receive for its own use all
cash dividends and interest paid in respect of the Pledged Shares other than any and
all: (A) dividends and interest paid or payable other than in cash in respect of
any Pledged Collateral, and instruments and other property received, receivable
or otherwise distributed in respect of, or in exchange for, any Pledged
Collateral; (B) dividends and other distributions paid or payable in
cash in respect of any Pledged Shares in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital, capital
surplus or paid-in capital of a Pledged Entity; and (C) cash paid, payable or
otherwise distributed, in respect of principal of, or in redemption of, or in
exchange for, any Pledged Collateral; provided, however, that until
actually paid all rights to such distributions shall remain subject to the Lien
created by this Agreement.
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8. Defaults and Remedies;
Proxy.
(a) Upon
the occurrence of an Event of Default and during the continuation of such Event
of Default, and concurrently with written notice to Pledgor, Secured Party
(personally or through an agent) is hereby authorized and empowered to transfer
and register in its name or in the name of its nominee the whole or any part of
the Pledged Collateral, to exchange certificates or instruments representing or
evidencing Pledged Collateral for certificates or instruments of smaller or
larger denominations, to exercise the voting and all other rights as a holder
with respect thereto, to collect and receive all cash dividends, interest,
principal and other distributions made thereon, to sell in one or more sales
after fifteen (15) days’ notice of the time and place of any public sale or of
the time at which a private sale is to take place (which notice Pledgor agrees
is commercially reasonable) the whole or any part of the Pledged Collateral and
to otherwise act with respect to the Pledged Collateral as though Secured Party
was the outright owner thereof. Any sale shall be made at a public or
private sale at Secured Party’s place of business, or at any place to be named
in the notice of sale, either for cash or upon credit or for future delivery at
such price as Secured Party may deem fair, and Secured Party may be the
purchaser of the whole or any part of the Pledged Collateral so sold and hold
the same thereafter in its own right free from any claim of Pledgor or any right
of redemption. Each sale shall be made to the highest bidder, but
Secured Party reserves the right to reject any and all bids at such sale which,
in its discretion, it shall deem inadequate. Demands of performance,
except as otherwise herein specifically provided for, notices of sale,
advertisements and the presence of property at sale are hereby waived and any
sale hereunder may be conducted by an auctioneer or any officer or agent of
Secured Party. PLEDGOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS
SECURED PARTY AS THE PROXY AND ATTORNEY-IN-FACT OF PLEDGOR WITH RESPECT TO THE
PLEDGED COLLATERAL, INCLUDING THE RIGHT TO VOTE THE PLEDGED SHARES, WITH FULL
POWER OF SUBSTITUTION TO DO SO. THE APPOINTMENT OF SECURED PARTY AS
PROXY AND ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE
UNTIL THE TERMINATION DATE. IN ADDITION TO THE RIGHT TO VOTE THE
PLEDGED SHARES, THE APPOINTMENT OF SECURED PARTY AS PROXY AND ATTORNEY-IN-FACT
SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND
REMEDIES TO WHICH A HOLDER OF THE PLEDGED SHARES WOULD BE ENTITLED (INCLUDING
GIVING OR WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS
OF SHAREHOLDERS AND VOTING AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE,
AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF
ANY PLEDGED SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON
(INCLUDING THE ISSUER OF THE PLEDGED SHARES OR ANY OFFICER OR SECURED PARTY
THEREOF), DURING THE CONTINUANCE OF AN EVENT OF
DEFAULT. NOTWITHSTANDING THE FOREGOING, SECURED PARTY SHALL NOT HAVE
ANY DUTY TO EXERCISE ANY SUCH RIGHT OR TO PRESERVE THE SAME AND SHALL NOT BE
LIABLE FOR ANY FAILURE TO DO SO OR FOR ANY DELAY IN DOING SO.
(b) If,
at the original time or times appointed for the sale of the whole or any part of
the Pledged Collateral, the highest bid, if there be but one sale, shall be
inadequate to discharge in full all the Secured Obligations, or if the Pledged
Collateral be offered for sale in lots, if at any of such sales, the highest bid
for the lot offered for sale would indicate to Secured Party, in its discretion,
that the proceeds of the sales of the whole of the Pledged Collateral would be
unlikely to be sufficient to discharge all the Secured Obligations, Secured
Party may, on one or more occasions and in its discretion, postpone any of said
sales by public announcement at the time of sale or the time of previous
postponement of sale, and no other notice of such postponement or postponements
of sale need be given, any other notice being hereby waived; provided, however, that any
sale or sales made after such postponement shall be after fifteen (15) days’
advance notice to Pledgor.
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(c) If,
at any time when Secured Party shall determine to exercise its right to sell the
whole or any part of the Pledged Collateral hereunder, such Pledged Collateral
or the part thereof to be sold shall not, for any reason whatsoever, be
effectively registered under the Act, Secured Party may, in its discretion
(subject only to applicable requirements of law), sell such Pledged Collateral
or part thereof by private sale in such manner and under such circumstances as
Secured Party may deem necessary or advisable, but subject to the other
requirements of this Section 8, and shall
not be required to effect such registration or to cause the same to be
effected. Without limiting the generality of the foregoing, in any
such event, Secured Party in its discretion (x) may, in accordance with
applicable securities laws, proceed to make such private sale notwithstanding
that a registration statement for the purpose of registering such Pledged
Collateral or part thereof could be or shall have been filed under said Act (or
similar statute), (y) may approach and negotiate with a single possible
purchaser to effect such sale, (z) may restrict such sale to a purchaser who is
an accredited investor under the Act and who will represent and agree that such
purchaser is purchasing for its own account, for investment and not with a view
to the distribution or sale of such Pledged Collateral or any part
thereof. In addition to a private sale as provided above in this
Section 8, if
any of the Pledged Collateral shall not be freely distributable to the public
without registration under the Act (or similar statute) at the time of any
proposed sale pursuant to this Section 8, then
Secured Party shall not be required to effect such registration or cause the
same to be effected but, in its discretion (subject only to applicable
requirements of law), may require that any sale hereunder (including a sale at
auction) be conducted subject to restrictions:
(i) as
to the financial sophistication and ability of any Person permitted to bid or
purchase at any such sale;
(ii) as
to the content of legends to be placed upon any certificates representing the
Pledged Collateral sold in such sale, including restrictions on future transfer
thereof;
(iii) as
to the representations required to be made by each Person bidding or purchasing
at such sale relating to that Person’s access to financial information about
Pledgor and such Person’s intentions as to the holding of the Pledged Collateral
so sold for investment for its own account and not with a view to the
distribution thereof; and
(iv) as
to such other matters as Secured Party may, in its discretion, deem necessary or
appropriate in order that such sale (notwithstanding any failure so to register)
may be effected in compliance with the Bankruptcy Code and other laws affecting
the enforcement of creditors’ rights and the Act and all applicable state
securities laws.
(d) Pledgor
recognizes that Secured Party may be unable to effect a public sale of any or
all the Pledged Collateral and may be compelled to resort to one or more private
sales thereof in accordance with clause (e)
above. Pledgor also acknowledges that any such private sale may
result in prices and other terms less favorable to the seller than if such sale
were a public sale and, notwithstanding such circumstances, agrees that any such
private sale shall not be deemed to have been made in a commercially
unreasonable manner solely by virtue of such sale being
private. Secured Party shall be under no obligation to delay a sale
of any of the Pledged Collateral for the period of time necessary to permit the
Pledged Entity to register such securities for public sale under the Act, or
under applicable state securities laws, even if Pledgor and the Pledged Entity
would agree to do so.
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(e) Pledgor
agrees to the maximum extent permitted by applicable law that following the
occurrence and during the continuance of an Event of Default it will not at any
time plead, claim or take the benefit of any appraisal, valuation, stay,
extension, moratorium or redemption law now or hereafter in force in order to
prevent or delay the enforcement of this Agreement, or the absolute sale of the
whole or any part of the Pledged Collateral or the possession thereof by any
purchaser at any sale hereunder, and Pledgor waives the benefit of all such laws
to the extent it lawfully may do so. Pledgor agrees that it will not
interfere with any right, power and remedy of Secured Party provided for in this
Agreement or now or hereafter existing at law or in equity or by statute or
otherwise, or the exercise or beginning of the exercise by Secured Party of any
one or more of such rights, powers or remedies. No failure or delay
on the part of Secured Party to exercise any such right, power or remedy and no
notice or demand which may be given to or made upon Pledgor by Secured Party
with respect to any such remedies shall operate as a waiver thereof, or limit or
impair Secured Party’s right to take any action or to exercise any power or
remedy hereunder, without notice or demand, or prejudice its rights as against
Pledgor in any respect.
(f) Pledgor
further agrees that a breach of any of the covenants contained in this Section 8 will cause
irreparable injury to Secured Party, that Secured Party shall have no adequate
remedy at law in respect of such breach and, as a consequence, agrees that each
and every covenant contained in this Section 8 shall be
specifically enforceable against Pledgor, and Pledgor hereby waives and agrees
not to assert any defenses against an action for specific performance of such
covenants except for a defense that the Secured Obligations are not then due and
payable in accordance with the agreements and instruments governing and
evidencing such obligations.
9. Waiver. No
delay on Secured Party’s part in exercising any power of sale, Lien, option or
other right hereunder, and no notice or demand which may be given to or made
upon Pledgor by Secured Party with respect to any power of sale, Lien, option or
other right hereunder, shall constitute a waiver thereof, or limit or impair
Secured Party’s right to take any action or to exercise any power of sale, Lien,
option, or any other right hereunder, without notice or demand, or prejudice
Secured Party’s rights as against Pledgor in any respect.
10. Assignment. Secured
Party may assign, indorse or transfer any instrument evidencing all or any part
of the Secured Obligations as provided in, and in accordance with, the Credit
Agreement, and the holder of such instrument shall be entitled to the benefits
of this Agreement.
11. Termination. Immediately
following the Termination Date, Secured Party shall deliver to Pledgor the
Pledged Collateral pledged by Pledgor at the time subject to this Agreement and
all instruments of assignment executed in connection therewith, free and clear
of the Liens hereof and, except as otherwise provided herein, all of Pledgor’s
obligations hereunder shall at such time terminate.
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12. Lien
Absolute. All rights of Secured Party hereunder, and all
obligations of Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(a) any
lack of validity or enforceability of the Credit Agreement or any other
agreement or instrument governing or evidencing any Secured
Obligations;
(b) any
change in the time, manner or place of payment of, or in any other term of, all
or any part of the Secured Obligations, or any other amendment or waiver of or
any consent to any departure from the Credit Agreement or any other agreement or
instrument governing or evidencing any Secured Obligations;
(c) any
exchange, release or non-perfection of any other Collateral, or any release or
amendment or waiver of or consent to departure from any guaranty, for all or any
of the Secured Obligations;
(d) the
insolvency of any Credit Party; or
(e) any
other circumstance which might otherwise constitute a defense available to, or a
discharge of, Pledgor.
13. Release. Pledgor
consents and agrees that Secured Party may at any time, or from time to time, in
its discretion:
(a) renew,
extend or change the time of payment, and/or the manner, place or terms of
payment of all or any part of the Secured Obligations; and
(b) exchange,
release and/or surrender all or any of the Collateral (including the Pledged
Collateral), or any part thereof, by whomsoever deposited, which is now or may
hereafter be held by Secured Party in connection with all or any of the Secured
Obligations; all in such manner and upon such terms as Secured Party may deem
proper, and without notice to or further assent from Pledgor, it being hereby
agreed that Pledgor shall be and remain bound upon this Agreement, irrespective
of the value or condition of any of the Collateral, and notwithstanding any such
change, exchange, settlement, compromise, surrender, release, renewal or
extension, and notwithstanding also that the Secured Obligations may, at any
time, exceed the aggregate principal amount thereof set forth in the Credit
Agreement, or any other agreement governing any Secured
Obligations. Pledgor hereby waives notice of acceptance of this
Agreement, and also, except as provided herein or in the Credit Agreement,
presentment, demand, protest and notice of dishonor of any and all of the
Secured Obligations, and promptness in commencing suit against any party hereto
or liable hereon, and in giving any notice to or of making any claim or demand
hereunder upon Pledgor. No act or omission of any kind on Secured
Party’s part shall in any event affect or impair this Agreement.
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14. Reinstatement. This
Agreement shall remain in full force and effect and continue to be effective
should any petition be filed by or against Pledgor or any Pledged Entity for
liquidation or reorganization, should Pledgor or any Pledged Entity become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of Pledgor’s or
a Pledged Entity’s assets, and shall continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Secured
Obligations, or any part thereof, is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any obligee of
the Secured Obligations, whether as a “voidable preference”, “fraudulent
conveyance”, or otherwise, all as though such payment or performance had not
been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Secured Obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
15. Miscellaneous.
(a) Secured
Party may execute any of its duties hereunder by or through agents or employees
and shall be entitled to advice of counsel concerning all matters pertaining to
its duties hereunder.
(b) Pledgor
agrees to promptly reimburse Secured Party for actual out-of-pocket expenses,
including, without limitation, reasonable counsel fees, incurred by Secured
Party in connection with the administration and enforcement of this
Agreement.
(c) Neither
Secured Party, nor any of its respective officers, directors, employees, agents
or counsel shall be liable for any action lawfully taken or omitted to be taken
by it or them hereunder or in connection herewith, except for its or their own
gross negligence or willful misconduct as finally determined by a court of
competent jurisdiction.
(d) THIS
AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS SUCCESSORS AND ASSIGNS
(INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF PLEDGOR), AND SHALL INURE TO THE
BENEFIT OF, AND BE ENFORCEABLE BY, SECURED PARTY AND ITS SUCCESSORS AND ASSIGNS,
AND SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF GEORGIA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE, AND NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE WAIVED,
ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED FOR AND ON BEHALF OF
SECURED PARTY AND PLEDGOR.
16. Severability. If
for any reason any provision or provisions hereof are determined to be invalid
and contrary to any existing or future law, such invalidity shall not impair the
operation of or effect those portions of this Agreement which are
valid.
17. Notices. Except
as otherwise provided herein, whenever it is provided herein that any notice,
demand, request, consent, approval, declaration or other communication shall or
may be given to or served upon any of the parties by any other party, or
whenever any of the parties desires to give or serve upon any other a
communication with respect to this Agreement, each such notice, demand, request,
consent, approval, declaration or other communication shall be in writing and
shall be delivered as set forth under Section 31 of the Credit
Agreement.
11
18. Section
Titles. The Section titles contained in this Agreement are and
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.
19. Counterparts. This
Agreement may be executed in any number of counterparts, which shall,
collectively and separately, constitute one agreement.
20. Benefit of Secured
Party. All security interests granted or contemplated hereby
shall be for the benefit of Secured Party, and all proceeds or payments realized
from the Pledged Collateral in accordance herewith shall be applied to the
Obligations in accordance with the terms of the Credit Agreement.
[signature
page follows]
12
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.
|
PLEDGOR:
|
||
|
PALM
HARBOR HOMES, INC.
|
||
|
By:
|
/s/ Larry Keener | |
| Name: |
Larry
Keener
|
|
| Title: |
Chairman/CEO
|
|
|
SECURED
PARTY:
|
||
|
TEXTRON
FINANCIAL
|
||
|
CORPORATION
|
||
|
By:
|
/s/ Henry Cruz | |
| Name: |
Henry
Cruz
|
|
| Title: |
Sr.
Vice President - Special Assets
|
|
13
SCHEDULE
I
PLEDGED
SHARES
|
Pledged Entity
|
Class
of Stock
|
Stock Certificate
Number(s)
|
Number
of Shares
|
Percentage of
Outstanding Shares
|
||||||
|
Standard
Casualty Company
|
Common
|
100 | % | |||||||
14
SCHEDULE
II
PLEDGE
AMENDMENT
This
Pledge Amendment, dated ________________, ___ is delivered pursuant to Section 6(d) of the
Pledge Agreement referred to below. All defined terms herein shall
have the meanings ascribed thereto or incorporated by reference in the Pledge
Agreement. The undersigned hereby certifies that the representations
and warranties in Section 5 of
the Pledge Agreement are and continue to be true and correct, as to
the shares pledged prior to this Pledge Amendment and shares pledged pursuant to
this Pledge Amendment. The undersigned further agrees that this
Pledge Amendment may be attached to that certain Pledge Agreement, dated
____________ __, ____, between undersigned, as Pledgor, and Textron Financial
Corporation, as Secured Party, (the “Pledge Agreement”) and that the Pledged
Shares listed on this Pledge Amendment shall be and become a part of the Pledged
Collateral referred to in said Pledge Agreement and shall secure all
Secured Obligations referred to in said Pledge Agreement.
|
|
||
|
By:
|
||
|
Name:
|
|
|
|
Title:
|
|
|
|
Name and
Address of Pledgor
|
Pledged Entity
|
Class
of Stock
|
Certificate
Number(s)
|
Number
of Shares
|
||||
|
|
|
|
|
15